UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 by Udi Prakash

In the wake of student activists Devangana Kalita, Natasha Narwal and Asif Iqbal fighting for their bails we need to understand the implications of UAPA that are preventing them from getting their freedoms. According to the order issued on 15th July, 2021, Delhi High Court’s judgment has already granted them bail but the Delhi Police has moved the prestigious Supreme Court against the said bail order. The three accused are student activists from Jawaharlal Nehru University and have been arrested under Unlawful Activities (Prevention) Act in connections with the northeast Delhi riots in 2020 against the Citizenship Amendment Act (CAA). To understand the seriousness of the situation we need to understand the backing and mechanism of UAPA.

The Act gives special procedures to handle terrorist activities, among other things. It aims at the effective prevention of unlawful activities associations in India. Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.

DEFINITION OF THE UNLAWFUL ACTIVITY IN INDIA

“UNLAWFUL ACTIVITY”, in relation to an individual or association, means any action taken by such individual or association which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India. [Section 2(f) Unlawful Activities (Prevention) Act, 1967].

SALIENT FEATURES OF THE UAPA ACT

  • According to the Act, the union government may proclaim or designate an organization as a terrorist organization if it:
  • commits or participates in acts of terrorism,
  • prepares for terrorism,
  • promotes terrorism, or
  • is otherwise involved in terrorism.

The Bill also empowers the government to designate individuals as terrorists on the same grounds.

  • UAPA has the death penalty and life imprisonment as the highest punishments. The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
  • Under UAPA, both Indian and foreign nationals can be charged. The offenders will be charged in the same manner whether the act is performed in a foreign land, outside India.
  • Under the provisions of the Act, investigation of cases can be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
  • The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, comprising of the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill adds another treaty to this list namely, the International Convention for Suppression of Acts of Nuclear Terrorism (2005).

CONCERNS/CRITICISM:

  • The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
  • The opposition voiced concerns about the amendments, saying the provisions were against the federal structure of the country enshrined in the Constitution of India.
  • There was no pre-legislative consultation.
  • Designating an individual as a terrorist raises serious constitutional questions and has the potential for misuse.
  • An individual cannot be called a ‘terrorist’ prior to conviction in a court of law; it subverts the principle of “innocent until proven guilty”. A wrongful designation will cause irreparable damage to a person’s reputation, career and livelihood.

DELHI RIOTS CASE

In the Delhi riot case the State has denied bail under Section 43D (5) of the Unlawful Activities (Prevention) Act. Section 43D (5) of UAPA gives the State the prerogative to deny bail whenever it deemed necessary. The standard of what is deemed ‘necessary’ is so low that is it is prone to misuse and the blatant abuse of power by investigative agencies. The Delhi HC has questioned the validity of this section in the particular case and pointed out that the ultimate power in being in the hands of the State. The court also pointed out that the distinction between constitutionally allowed “peaceful protest” has lost its meaning under the ambit of “terrorist activities and hence the line between the two needs to be redefined clearly.

CONCLUSION

While none will question the need for stringent laws that show ‘zero tolerance’ towards terrorism, the government should be mindful of its obligations to preserve fundamental rights while enacting legislation on the subject.

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