Ms. Nikita Susan Eapen
ABSTRACT
The Unlawful Activities Prevention Act (UAPA) of 1967 is a crucial anti-terrorism legislation in India, aimed at protecting national security while upholding constitutional principles. However, its implementation has been controversial, with concerns over its potential misuse to suppress political dissent and legitimate protests.
This paper delves into the constitutional background of the UAPA, examining its evolution through various amendments and legal perspectives. It analyses the law’s provisions, amendments, and their implications on fundamental rights, particularly freedom of speech and expression, and the right to bail. Through a critical lens, it discusses issues such as the vague definition of terrorism, discretionary powers to label individuals as terrorists, and restrictions on bail. Drawing on judicial interpretations and international legal standards, the paper provides suggestions for reform, emphasizing the importance of clear definitions, equitable representation, and adherence to established criminal justice norms.
Further concluded by highlighting the ongoing challenge of striking a balance between national security imperatives and individual rights, calling for a nuanced approach to ensure justice in the face of evolving threats and legal complexities.
Keywords: Law Commission, Dissent, Sanction, Terrorism, Bail not jail INTRODUCTION
In the shadowed alleys of justice, where the line between protection and oppression blurs, the Unlawful Activities Prevention Act emerges as a double-edged sword, gleaming with the promise of safety yet tainted with the spectre of lost freedoms. Like a vigilant sentinel, the UAPA watches over the land, its intent noble, but its execution often fraught with controversy. As we delve into the intricate evolution of India’s anti-terror legislation, we must ponder—can
1 VIII Semester B.A., LLB (Hons.) Student, JSS Law College (Autonomous), Mysuru, Karnataka, India.
we achieve a balance where the scales of justice do not tip too far in either direction, ensuring both the safety of the many and the freedom of the few?
RESEARCH METHODOLOGY
This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the constitutional validity of Unlawful Activities Prevention Act. Secondary sources of information like journals and websites are used for the research.
REVIEW OF LITERATURE
Derived from the constitutional bedrock of Article 245, this Act finds its raison d’etre nestled within Entry I of List I, where the “Defence of India” is enshrined. It is a testament to the nation’s resolve to safeguard its sovereignty against the insidious encroachments of terrorism, both domestic and transnational.”2
Terrorism, in its insidious forms, wages a domestic war against the sovereignty of nations, often targeting specific races or communities to create an embryonic imbalance and nervous disorder in the society. Resultantly, the security and integrity of the countries concerned are at peril and the law and order in many countries disrupted.3
Therefore, the UAPA is an anti-terrorism law that was enacted by the Indian Parliament in 1967. It was amended in 2004, 2008, 2012, and 2019 to strengthen the law and make it more effective in combating terrorism.
The constitutional foundation of UAPA is intertwined with Article 19, which guarantees the freedom of speech and expression, the freedom to assemble peaceably and without arms and the freedom to form associations or unions which is encompassed in this Article can be taken away for a proper governmental objective4and restrictions enshrined in Article 19(2).5
While the UAPA is an important tool in the fight against terrorism, there have been concerns about its misuse and abuse by the government to suppress political dissent and legitimate
2INDIA CONST. art.245 r/w Schedule VII
3 Kartar Singh v. State of Punjab, (1994) 3 SCC 569
4 Unni Krishnan J.P v. State of A.P., 1993 AIR SCW 863
5 N.K. Bajpai v. Union of India, (2012) 4 SCC 653
protests. The law has been criticized for being too broad and vague, and for giving too much power to the government to suppress freedom of speech and expression.
LAW COMISSION AND COMMITTEE REPORTS
Over the years, the Law Commission of India and various committees have issued numerous suggestions and observations regarding terrorism and its legal ramifications. These insights offer a comprehensive view of the challenges posed by terrorism and the necessary legal frameworks required to address them effectively.
The 154th Law Commission Report recommended special procedures for terrorist crimes, stressing the need for a separate investigational strategy.6 Similarly, the 173rd Law Commission Report in 2000 underscored the urgency of enacting legislation to combat terrorism, recognizing the inadequacies of the Indian Penal Code in tackling organized crime.7
Similarly, the Rajya Sabha Parliamentary Standing Committee urged for expeditious resolution of cases under the National Investigation Agency, recognizing the imperative of swift justice in combating terrorism.8
Moreover, the Committee on Reforms of Criminal Justice System, led by Justice V.S. Malimath, conducted a comprehensive review of anti-terrorism laws, advocating for a centralized approach to address organized crime and terrorism while also recommending the establishment of oversight mechanisms to ensure accountability and procedural fairness.9
In essence, while UAPA remains a vital instrument in combating terrorism, the overarching theme of these recommendations is the necessity of striking a delicate balance between security imperatives and the protection of fundamental rights. The proposed measures seek to fortify that the law is not misused and that there are adequate safeguards to prevent any abuse of power by law enforcement agencies.
6 LAW COMMISSION OF INDIA, REPORT NO. 154: THE CODE OF CRIMINAL PROCEDURE, 1973 (ACT NO.2 OF 1974). VOL.1 (1996).
7 LAW COMMISSION OF INDIA, REPORT NO. 154: PREVENTION OF TERRORISM BILL, 2000 (2000). 8 PARLIAMENTARY STANDING COMMITTEE ON HOME AFFAIRS, TWO HUNDRED FIFTH REPORT, ACTION TAKEN BY GOVERNMENT ON THE RECOMMENDATIONS/OBSERVATIONS CONTAINED IN THE TWO HUNDRED THIRD REPORT ON BORDER SECURITY: CAPACITY BUILDING AND INSTITUTIONS),(2018)
9 DR. JUSTICE V.S. MALIMATH COMMITTEE, COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM,VOL.1 (2003)
UAPA- AN ANALYSIS, AMENDMENTS AND IT’S IMPLICATIONS
The main intention of any statute is to serve the ends of justice and to curtail rampant evil in society Therefore, it’s imperative to view the law from the perspective of a “bad man,” as suggested by Oliver Wendell Holmes. This means understanding how someone inclined to break the law perceives it, focusing on the material consequences rather than moral justifications.10
Hence, main objective of enacting the Unlawful Activities Prevention Act, is to provide for the more effective prevention of certain unlawful activities of individuals and associations, and for dealing with terrorist activities.
1. VIOLATION OF ESTABLISHED CONSTITUIONAL RIGHTS
UAPA seeks to combat terrorism while upholding constitutional principles. Yet, some provisions transgress the constitutional “golden triangle”. In this narrative, the struggle for balance between security and liberty unfolds.
In K.S Puttaswamy v. Union of India11, the judiciary elucidated a threefold classification to scrutinize arbitrariness in legislative enactments: the presence of a law, a legitimate aim, and proportionality, guarantees a fair relationship between the objects and the ways pursued to attain them. However, a critical examination reveals UAPA to be marred by ambiguity and disproportionality in the following ways
Firstly, Section 15 of UAPA states “with intent to strike terror or likely to strike terror in people”, this Act fails to define the word ‘terror’. Since terror in simple words means to induce fear, its overbroad analysis can result to a malicious act. Strict interpretation of penal statutes is the rule and an undefined term with a wide scope of analysis will serve to against the legislative intent.
Secondly, the 2019 amendments, while ostensibly introducing rights for individuals implicated under the Act, paradoxically expose glaring disparities. The built in rights are as follows –
10 DR. N.V. PARANJAPE, STUDIES IN JURISPRUDENCE & LEGAL THEORY (Central Law Agency, 9th Ed. 2019).
11 K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
a) Right to make an application to the Central Government for removal of names from the Fourth schedule.12
b) Right to have the application decided in 45 days.13
c) Right to apply for review if the application is rejected, to the Review Committee.14 d) Right to ensure Review Committee acts in consonance with the principles of judicial review.15
Keeping these rights in mind, the government has classified “individual” terrorists into two categories
The first category includes individual whom the Central Government ‘believes’ to be involved in terrorist activities and have their names published in the Fourth Schedule.16
The second category includes individuals whose trial charges of being involved in terrorism has been “sanctioned” by the government but names are not published in the Fourth Schedule.17
Now, the aforementioned rights are available only to the first category of individuals while the second category of individuals are devoid of this, thus has to suffer a lengthy trial process. It is to ponder about the intelligible differentia while distinguishing grouped persons or goods from the left out ones of the group. 18The want of clarity and no guidelines for the same has led to a peril violating Article 14 and 21 of the constitution. This has also given rise to a situation where the government has given itself discretion to either publish or not publish names in the Fourth Schedule.
Thirdly, the expansive definition of “unlawful activities” within the UAPA encroaches upon the realm of free speech, stifling dissent and criticism of government policies. The indiscriminate application of vague language not only jeopardizes the fundamental right to freedom of expression guaranteed under Article 19(1)(a) but also undermines the essence of
12 Unlawful Activities Prevention Act, 1967, S.35.
13 Procedure for Admission and Disposal of Application Rules, 2004, Rule 2.
14 Unlawful Activities Prevention Act, 1967, S.36 (4).
15 Unlawful Activities Prevention Act, 1967, S.36 (5).
16 Unlawful Activities Prevention Act, 1967, S.35.
17 Unlawful Activities Prevention Act, 1967, S.45
18 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
democracy itself 19. The chilling effect produced by such provisions contradicts the essence of a vibrant democratic society. 20
It is an established principle of law that ‘vagueness’ may invalidate criminal law21 , and its indiscriminate use by authorities against those critical of the government has made it impossible to secure bail under Section 45(d) (5). Also, it is to be noted that the criticism of the Government and its policies or actions cannot be constituted as a fair ground to restrict the freedom of speech and expression.22
Moreover, Section 2(1)(o) of UAPA can also find it’s resemblance it the age old archaic sedition law whose wide misuse has led to its stay in the Vombatkere judgement 23but sedition only restricts hate speech but UAPA goes a step beyond by restricting all forms of speech. It is to wonder if certain provisions of UAPA have been enacted to stifle non-government conformists.
The iconic case of Romila Thappar v. Union of India 24 is ideal to demonstrate the misuse of this law against dissenting voices. Arun Ferreira was acquitted in 11 cases, Vernon Gonsalves in 17 out of 19 cases, and Varavara Rao in all 20 cases filed against him.
While acknowledging the imperative of safeguarding national security amidst the spectre of terrorism, it is essential to tread cautiously, ensuring that fundamental rights remain inviolate. The exceptions delineated under Article 19(2) must be meticulously balanced with the overarching principles of justice and liberty. As Justice Holmes aptly noted, that no one is entitled to yell “fire” in a crowded theatre is a totally inadequate guide to what constitutes inflammatory speech in situations of social conflict. Therefore, necessitating procedural safeguards to shield dissenting voices from the arbitrary trappings of legislation.
2. DISCRETION TO NAME INDIVIDUALS AS TERRORISTS
The discretion to designate individuals as terrorists finds its roots in international law. Originating from the establishment of the 1267 Committee, pursuant to resolution 1267 (1999), its mandate was to enforce sanctions on Taliban-controlled Afghanistan for harbouring Usama
19 Sakal Papers v. UOI ,AIR 1962 SC 305
20 S. Khusboo v. Kanniamal, (2010) 5 SCC 600
21 Shreyah Singhal v. Union of India,(2015) 5 SCC 1
22 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574
23 S.G. Vombatkere v. Union of India , (2022) 7 SCC 433
24 Romila Thappar v. Union of India, (2018) 10 SCC 753.
bin Laden. The process of inclusion involves specific findings supported by various forms of evidence and documentation, alongside connections with already listed entities.
The UNHCR emphasizes fairness and transparency in applying Article 1F of the 1951 Convention, stressing clear criteria, uniform evidence standards, and independent review. Conversely, recent amendments to the UAPA, especially Section 35(2), allow the government to designate individuals as terrorists solely on its belief, lacking due process and jeopardizing individual rights. Ambiguity in designation criteria and absence of delisting timeframes raise concerns of indefinite listing and violate the presumption of innocence.
While Section 36 of the UAPA allows for appeals, the process is cumbersome, with insufficient communication of arrest reasons and no provision for oral hearings. Additionally, the lack of judicial standards for sanctioning authorities undermines the purported independent review process, reducing it to a mere administrative formality.
In essence, the current framework fails to strike a balance between combating terrorism and safeguarding individual rights, necessitating a re-evaluation to ensure adherence to international human rights standards.
3. BAIL NOT JAIL
“The basic rule is bail, not jail” is a doctrine laid down by the Supreme Court of India in the landmark judgment of State of Rajasthan vs. Balchand alias Baliya25. UAPA, however has made “jail, not bail” the rule.
Bail, a cornerstone of criminal jurisprudence, is notably curtailed by Section 43D(2) of the UAPA,1967, extending incarceration to 180 days, contrary to the 90-day norm under the CrPC. Section 43D(5) further restricts bail for those accused of terrorism, even without their names in the Fourth Schedule, solely on accusation.
The combined application of Section 43D sub-sections (2) and (5) makes it extremely difficult for anyone charged with terrorist acts and terror organisation to be released on bail. In light of this, the UAPA had evolved into the most formidable weapon in the government’s arsenal for targeting dissenters and critics of the government at the time. The Supreme Court in Union of
25 State of Rajasthan vs. Balchand alias Baliya, 1977 AIR 2447.
India vs. K.A. Najeeb 26mentioned the rigorous bail provision under UAPA as another possible ground for the competent court to refuse bail. Recently the Karnataka High Court in Muzammil Pasha v. National Investigating Agency27, has clarified the position of law on this aspect and have held that extending the time period for an investigation without hearing the accused person under the provisions of Section 43-D (2) is a gross violation of natural Justice, such an act is in grave contravention with the settled principles of law.
Supreme Court in State though C.B.I. v. Amar Mani Tripathi, has observed the eight conditions to be followed for the grant of bail. However it is seen that Section 43D(5) is concerned, the existence of a prima facie case is all that is required to keep a person incarcerated without any consideration for the other 7 elements.
Such unjust incarceration, especially given low conviction rates, contravenes established criminal justice norms, necessitating robust opportunities for challenge against prolonged detention.
4. CRITICAL ANALYSIS WITH REGARD CERTAIN SECTIONS AND AMENDMENTS OF UAPA
i. Section 37
The nature, scope and composition of the Review Committees have been defined under Section 37 of the Act. The challenge with appealing under UAPA, 1967 lies in its structure. Firstly, it limits judicial oversight on arrests. Secondly, the Review Committee’s composition is arbitrary, with the government holding unchecked power in appointing members, potentially biasing decisions. Thirdly, the Committee isn’t obliged to justify its rulings, fostering concerns about governmental influence. This undermines principles of impartiality and natural justice, raising questions about fairness and transparency in the process.
ii. Section 18
Since the specific commission of terrorist acts is covered in Sec. 15 and 16, it is clear that the scope of Sec. 18 covers the terrain of actions which are preparatory to or by way of incitement, abetment and conspiracy to commit a terrorist act. The offence of conspiracy is complete just with the “agreement” to commit the conspiracy and the “object” of the agreement itself need
26 Union of India vs. K.A. Najeeb, (2021) 3 SCC 713.
27 Muzammil Pasha v. National Investigating Agency ,2021 SCC OnLine Kar 12688
not have occurred. Unfortunately, these vaguely worded provisions allow for arbitrary use, reminiscent of past abuses under TADA and POTA laws. The dire situation eventually led to the Supreme Court formulating in Shaheen Welfare Association v. Union of India & Ors28, a four-fold classification of TADA under trial prisoners. This was based on the specific role allegedly played by each person in the crime alleged against them so that only those classified to be ‘hard core’ alone were to be kept in jail as under trial and others could be released on bail.
Thus, the abuse of UAPA is symptomatic of the problems arising out of having such blurred and nebulous lines of defining something as serious as terror activity and the attendant law criminalizing it.
iii. Section 35(2)
The Right to Reputation is a cornerstone of the fundamental Right to Life with Dignity enshrined in Article 21 of the Indian Constitution. Labelling an individual as a ‘terrorist’ without due process violates this right, contradicting the essence of law.
A petition filed by the Association for Protection of Civil Rights (APCR) contended that the new Section 35 allows the Centre to designate an individual as a terrorist and add his identity in Schedule 4 of the Act while earlier only organizations could be notified as terrorist organizations. The amendment does not specify the grounds for terming an individual as a terrorist and that “conferring of such discretionary, unfettered and unbound power upon the Central government is an antithesis to Article 14.”
The Court in Sri Indra Das v. State of Assam29 read down Section 10 of UAPA and Section 3(5) of TADA, both of which made mere membership of a banned organization, criminal. The Court held that a literal interpretation of these provisions would make them violative of Articles 19 and 21 of the Constitution. Therefore, proper constitutional is of utmost important when a person’s fundamental rights are at stake and the law enables preventive detention.
iv. Section 20 and Section 38
In Thwaha Fasal V. Union of India30, the interpretation of Sections 20, 38 and 39 of UAPA raises crucial concerns. Section 38 addresses individuals associated with terrorist
28 Shaheen Welfare Association v. Union of India & Ors ,1996 (2) SCC 616
29 Sri Indra Das v. State of Assam, (2011) 4 SCR 289
30Thwaha Fasal v. Union of India ,2021 SCC OnLine SC 1000
organizations, whether as members or not. However, clarity is lacking in distinguishing between Sections 20 and 38. Section 20 pertains to stringent penalties for active membership in a terrorist group involved in terrorist acts, while Section 38 applies when an individual associates with or professes allegiance to such a group to further its activities. The overlap between these sections introduces ambiguity and leads to inconsistencies in punishments, lacking clear guidelines for their application. This ambiguity, as highlighted in the Thwaha Fasal’s case, risks blurring the lines between membership offences and conspiracy, potentially hindering effective legal prosecution. Clarification and refinement of these distinctions are essential for coherence and consistency in enforcing laws against terrorist activities.
v. Section 45
Section 45 of the UAPA requires prior sanction from the competent authority for courts to proceed with cases under chapters 3, 4, and 6. Without this sanction, courts lack jurisdiction. Recently, the Supreme Court halted the discharge of Professor G.N. Saibaba by the Bombay High Court in a UAPA case due to procedural oversight, not merit. The Apex Court is reviewing whether an appellate court can discharge an accused for lack of valid prosecution sanction, rendering proceedings void. Cr. P.C Section 465 addresses curable defects but cannot remedy a lack of valid sanction. Simply put, without proper sanction, prosecution cannot stand.
SUGGESTIONS
The principles underpinning penal statutes necessitate a strict adherence to clear and unambiguous definitions within the Act. Moreover, equitable representation between the executive and judiciary within the Review Committee is imperative to ensure impartiality and prevent undue influence. Failure to designate all members risks the committee being perceived as a tool of the government, undermining its credibility. Additionally, any restriction on individual liberty must conform rigorously to established criminal jurisprudence, requiring legislators to exercise caution. Lastly, the Act must safeguard against the arbitrary prosecution of dissenting voices critiquing the government, safeguarding fundamental freedoms of expression and dissent.
CONCLUSION
In the labyrinth of legal complexities, the Unlawful Activities Prevention Act, 1967 stands as a double edged sword, striving to safeguard against terrorism while risking the erosion of civil
liberties. Despite constitutional roots and periodic amendments, its application often blurs the line between security and suppression. Balancing safety and freedom remains elusive, as seen in its vague provisions and draconian bail restrictions. Amidst calls for reform and judicial scrutiny, the quest for a harmonious equilibrium between national security imperatives and individual rights persists, resonating the eternal struggle for justice in a world fraught with peril and promise.