ABSTRACT
While our nation celebrates the freedom gained through long struggle and sacrifices of its leaders, some individuals continue to struggle for their basic human rights and fundamental rights. This research paper provides a critical analysis of the Unlawful activities (Prevention) act (UAPA), arguing that while it is essential for the national security its implementation However, vague provisions of this act have created a human rights crisis. This research paper examines UAPA through legislative history, vague and controversial provisions, and real-life case studies of some of accused individual.
This research paper highlights how UAPA has overturned some of the basic principle of Indian legal system e.g., “Bail is the rule, jail is exception” and presumption of innocence. The low conviction rate of 2.5% shows the potential misuse of vague provisions of UAPA to detain someone for a longer period and how it has impacted on human life. This paper concludes by suggesting some of the changes in the act and approach of the authorities. The recommendation is to amend section 35 as it gives immense of power in the government hand and court should be the sole authority of designate any individual as a “Terrorist” according to the rule of law . Authorities should try to make this act just and reliable, aiming for a better balance between national security and the protection of individual liberties.
KEY WORDS
HUMAN RIGHTS
NATIONAL SECURITY
DETENTION
TERRORIST
CIVIL LIBERTIES
DISSENT
INTRODUCTION
“He felt as if he was outside for 21 minutes, not 21 days.”
This reflection vividly illustrates the psychological dilemma of an individual accused under the unlawful activities (Prevention) act and there ongoing struggle for the fundamental and human rights guaranteed by the constitution of India. The act provisions highly contradict the core legal principle that “Bail is the rule, not the exception” a principle rooted in the Fundamental right to liberty article 21.
In a liberal democracy it is the duty of the government to maintain the national security and protect its citizens and their fundamental and human rights from external as well as internal threats. However, “it cannot come at cost of freedom and human rights of individual, which are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.”
Although national security laws, which helps government to maintain the stability and law and order, are essential, these laws might be used by government or authorities to suppress dissent or freedom of speech, and this may result into the chilling effect where individuals or groups hold back from expressing themselves due to the vague policies and strict regulations.
This research paper tries to provide a critical analysis of the Unlawful activities (Prevention) act with the emphasis on the most recent amendment and its repercussions.
RESEARCH METHODOLOGIES
This study uses mixed method of research methodologies as it utilizes the quantitative as well as qualitative to examine the UAPA act and the data and resources which I have used in this research paper is primarily secondary in nature. For the qualitative data/content I have gone through scholarly articles, journals, News article and existing research work on the respective field and for the quantitative data, this study relies on the data which is available data in article/journals and research paper.
REVIEW OF LITERATURE
HISTORICAL OVERVIEW: PRE-INDEPENDENCE
In the colonial era so-called national security laws were one of the crucial weapons which were predominantly used by the British against the famous and influential personality and national movement, for example Mahatma Gandhi was arrested on March 10, 1922, and sentenced to six years in jail for writing three articles in his weekly journal, Young India. The charge was sedition, specifically for encouraging anger against the British government.
Some other notable example
- Bal Gangadhar Tilak: His conviction was in 1908 for his articles in the newspaper Kesari.
- Jawaharlal Nehru: While never convicted, Nehru was also charged with sedition in 1921 for his political activities and speeches against colonial rule.
POST-INDEPENDENCE
After the long hours of debate and discussion in the constitutional assembly it was decided that the tern sedition will not be the part of constitution. However, it was retained through Section 124A of Indian Penal Code, and it evolved through the interpretation by judiciary and legislative Power of government. Some of the prominent cases and legislature are.
- First Amendment: it was observed by the supreme court in two landmark judgements, Brij Bhushan v. State of Delhi and Romesh Thappar v. State of Madras, any law restricting freedom of speech and expression, provided under article 19, to maintain public order is unconstitutional. Theses both judgements led to the first constitutional amendments that added “public order” and “friendly relations with foreign states” as ground for reasonable restriction to freedom of speech and expression under article 19(2).
- The Kedar Nath Singh Case: In this landmark judgment the supreme court upheld the constitutionality of the 124A IPC bur narrowed be applied in cases where the acts or words had an “intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
The Unlawful Activities (Prevention) Act (UAPA) 1967:
The government introduced the Unlawful Activities (Prevention) Act (UAPA) in 1967. According to the govt. during that period India was facing serious challenges:
- Secessionist movements:
- Demand for Autonomy from North-eastern part of India (Nagaland, Mizoram).
- Separatist movement in Tamil Nadu.
- the pattern in which this act has been used by Concern over national security: India had to fight Two wars back-to-back first with China in 1962 and then with Pakistan in 1965.
Despite all these issues and concerns, the bill went through heated and complex argument and debate. Opposition parties were accusing government to curb the fundamental rights and individual liberty of citizens.
Atal Bihari Vajpayee, a young member of Lok Sabha at that time, participated in this debate with most elegant and pointed critiques.
“The Joint Advisory Committee was handed a donkey and given the task of transforming it into a horse. The result is that it has become a hinny [offspring of a male horse and a female donkey]. The hinny is good enough to bear the burden of the home ministry, but the home minister seems to think that he can fight for the sovereignty and integrity of the nation sitting astride this hinny and I must politely disagree with him…
I am not in support of keeping someone in jail without a trial. Individual freedoms should be protected. I have been unable to understand the thought process of the government, the difference between its words and action, the reason for bringing this law even the house is unable to understand it.
We are afraid that these laws will be misused.”
Amendments To UAPA
- 2004 Amendment: First UPA government repealed the POTA and to fill the legislative gap, the government introduced an amendment which widened the “terrorist act” and for the first time it gave power to government to tag an organization as a terrorist organization.
- 2008 Amendment: context of Mumbai terror attacks, the act was become more rigid and strict. It expanded the definitions of a “terrorist act” and include economic threats as a terrorist act. It also gave more power to NIA (National Investigation Agency).
2019 AMNENDMENT
The amendment was introduced aftermath of Pulwama terror attack. This amendment aims to further strengthen Unlawful Activities (Prevention) Act to adopt more precise approach to national security and by far this is the most controversial amendment in the history of UAPA act as this amendment gave power to central government to designate an individual as a terrorist previously it was limited to organisation.
CONTROVERSIAL UAPA PROVISONS
- Section 43D (5)
This section of UAPA act makes it extremely difficult to get bail. An accused person cannot be released on bail if the court believe the accusations are “Prima facia” true. This provision contradicts the core principles of Indian legal system; that “Bail is the rule, jail is the exception” is the core principle in criminal cases however under the UAPA charges it’s not, to make it more rigid and complex for an accused to get bail, UAPA section 43D (2) allow investigation agencies to extend the investigation period. Under the normal circumstances and as per the code of criminal procedure, a chargesheet must be filled within 90 days for serios offences. However, under section 43D (2) this period can be extended to 180 days.
- Section 35 “Vague definition”
This Section allows central government to designate an individual as terrorist and add them to fourth schedule without a trail, solely based on the belief of the central government and its respective agencies. As it lacks the clear criteria for inclusion and exclusion into forth schedule, this power could be use by agencies to control the dissent and burden of proof shifts to the individual, who must challenge this designation to have it removed.
- Section 18
The subjective language of this section gives the government power to punish anyone who directly or indirectly helps, advises, or encourages anyone to commit terrorist act. Bhima Koregaon and CAA protest are often cited as examples of how this section has been invoked.
- Section 37
This section allows for secret witness and in-camera hearings. While the intent is to protect witness, it may compromise the right of a free and fair trial by lacking transparency and accountability, thus making it a vulnerable to misuse by system.
- Section 45
According to this section, it’s mandatory to get prior approval from the central government to start prosecution of cases under UAPA, this specific requirement adds a procedural hurdle which can be used to delay the legal process, thus making it more difficult for accused to secure their freedom back.
HUMAN RIGHTS CRISIS: CASE STUDIES
Before discussing the case studies, this research paper would like to present some statistical data:
“From 2014 to 2022, a total of 8719 cases were registered under the Unlawful activities (prevention) act. Out of these, there were acquittals in 567 cases and convictions in only 215 cases.” This means 2.5% of the registered cases resulted in a conviction, which is an extremely low percentage.
- UMAR KHALEED
Umar, an alumnus of Kirori Mal college, university of Delhi and a former scholar of history at Jawaharlal Nehru university, was arrested on 13 September 2020 for his alleged involvement in Delhi riots 2020. Charged under UAPA, he has now spent over 1799 days in custody. he has applied for a regular bail out of his hope but every time he has been denied. This explains us the negative side of UAPA and its provisions. This case study often cites by Human rights organization and legal experts as a key example how UAPA section 43D (5) and others can be used to suppress dissent.
- STAN SWAMY
On 8th October 2020, Stan, a Christian priest and tribal rights activist, was arrested by NIA from his residence in Ranchi. He was charged that he allegedly encouraged violence through his speeches on 31 December 2017 that allegedly resulted in caste-based violence in the village. Swamy, who were suffering from advance Parkinsons’s disease, repeatedly denied bail. Reportedly he was also denied for a straw and sipper. 5th July 2021 swamy died in custody of cardiac attack. This case study cited by human rights organization to show how the rigid and vague provisions of UAPA act can be used to justify the denial of basic humanitarian facilities, even in cases of serious illness.
- PROF. SAI BABA
A former professor at university of Delhi, who was bound to wheelchair, was arrested in 2014 for having alleged ties with Maoist groups. He spent almost a decade in jail most of the time in a “Anda cell” in Nagpur, Maharashtra before his acquittal on 5th March 2025. He died just for 219 more days.
- SIDDIQUI KAPPAN
Siddique kappan, a journalist affiliated with Malayalam news portal, azhimukham.com, arrested by the Uttar Pradesh police in Hathras when he was on his way to report on the gangrape of a 19-year-old Dalit girl. Police booked him under The Unlawful Activities (Prevention) Act and Prevention of Money Laundering Act, 2002 (PMLA).
The objective of this research paper is not to prove the innocence or guilt of the individual discussed or anyone, that is the duty of Honourable court to decide with due diligence. Rather, this research paper aims to provide a critique to authorises and the act itself. There are numerous cases where individuals are still awaiting a court trial and approval of bail e.g., Sharjeel imam, Umar Khalid etc.
SUGGESTIONS: FINDING A BALANCE
For a government national security should be first on the list as it is crucial for a nation stability. However, it is essential to find a balance where national security along with basic human rights can coexist. Having said that this research paper tried to provide some reforms and suggestions in the UAPA act and suggests change in approach of authorities towards its application.
- Section 35, the newest and most controversial provision of this act. It is suggested that the government to either make changes in the vague wording or replace it with a new section with provisions that the burden of proof should be on government shoulder to prove their claim not on the accused. A court should be the sole authority to designate an individual as a “terrorist” after a judicial process.
- A chargesheet must be filled within the 90 days window as per the established principle of code of criminal procedure (CrPC), it is therefore suggested to amend section 43 D (2) which allows the investigation agencies to extend this chargesheet filling period to 180 days. This change would help ensure a timely trial and protect the liberty of accused.
- Provision for a speedy trial, as charges under Unlawful activities (Prevention) act are serious in nature and right for speedy trail is a matter of crucial impotence, it is Therefore suggested that a procedure for a speedy trial, with fixed time limit, should be established.
- Section 37 provides for the provisions of secret and in-camera hearing, it is therefore recommended to find a balance between protection of witness and accused’s right for a free and fair trial and there should be stepped to maintain the transparency and accountability of the process.
CONCLUSION
“Innocent until proven guilty” is the foundational principle of our legal system, rooted in the doctrine of presumption of innocence, however this research paper has tried to reflect the Unlawful activity (Prevention) act highly contradict this doctrine by creating de facto condition of “guilty until proven innocence.” From the movement the government designates an individual as a “terrorist,” the media, society and particular the social media start media trial or rather character assassination.
Lost time is never found again, as it is difficult to put a tag on time and “No amount of money can buy a second of time.” for those who spend years in prison, the lost time cannot be recovered.
Name – Jane Alam
Course – Bachelor of Law ( First year )
College – Campus Law Centre
REFERANCE
Jus corpus, UAPA: A Challenge to Human Rights and Justice, https://www.juscorpus.com/uapa-a-challenge-to-human-rights-and-justice (last visited Aug. 17, 2025).
Sheela Ganesh & Nikita Susan Eapen, Unlawful Activities (Prevention) Act, 1967: A Double-Edged Sword, JSS J. Legal Stud. & Rsch., Special Issue, 2023, https://jsslawcollege.in/wp-content/uploads/2024/11/3-Unlawful-Activities-Prevention-Act-1967-A-Double-Edged-Sword.pdf.
EPW Engage, Dissent in a Democracy: Political Imprisonment under the UAPA in India, EPW Engage, https://www.epw.in/engage/article/dissent-democracy-political-imprisonment-under (last visited Aug. 17, 2025)