Stringent Nature of UAPA

• 14 Jul 2021

Why in News

Recently, the death of Father Stan Swamy, a Jesuit priest and tribal rights activist, while in judicial custody, has brought the stringent provisions of Unlawful Activities (Prevention) Act (UAPA) into the focus.

• UAPA is the India’s main anti-terrorism legislation, but the law makes it more difficult to obtain bail.
• This difficulty in obtaining bail is being seen as one of the principal reasons for Fr. Swamy’s death as a prisoner in a hospital and compromises constitutional liberties.

Key Points

• Background of UAPA:
  • In the mid-1960s, in order to curb the various secession movements, the Government of India considered enacting a stringent law.
  • In March 1967, a peasant uprising in Naxalbari imparted a sense of urgency.
  • On 17^th June, 1966, the President had promulgated the Unlawful Activities (Prevention) Ordinance.
    • The ordinance intended to “provide for the more effective prevention of unlawful activities of individuals and associations”.
  • After initial resistance from the Parliament (owing to its stringent nature), the Unlawful Activities (Prevention) Act was passed in 1967.
  • The Act provided for declaring an association or a body of individuals “unlawful” if they indulged in any activity that envisages secession or questions or disclaims the country’s sovereignty and territorial integrity.
  • Prior to the UAPA’s enactment, associations were being declared unlawful under the Criminal Law (Amendment) Act, 1952.
    • However, the Supreme Court held that the provision on bans was unlawful because there was no judicial mechanism to scrutinise the validity of any ban.
  • Therefore, the UAPA included provisions for a Tribunal which has to confirm within six months the notification declaring an outfit unlawful.
  • After the Prevention of Terrorism Act (POTA), 2002, was repealed, the UAPA was expanded to include what would have been terrorist acts in earlier laws.
• Current Status of the Act:
  • In its present form, the UAPA has been amended in 2004 and 2013, to expand its scope.
  • Expanded Scope of Law:
    • Punishment for terrorist acts and activities,
    • Acts threatening the country’s security, including its economic security (a term that covers fiscal and monetary security, food, livelihood, energy ecological and environmental security),
    • Provisions to prevent the use of funds for terrorist purposes, including money.
  • The ban on organisations was initially for two years, but from 2013, the period of proscription has been extended to five years.
  • Further, the amendments aim to give effect to various anti-terrorism resolutions of the United Nations Security Council and requirements of the Financial Action Task Force.
  • In 2019, the Act was amended to empower the government to designate individuals as terrorists.
• Modus Operandi of UAPA:
  • Just like other special laws dealing with narcotic drugs and the now-defunct laws on terrorism, the UAPA also modifies the Code of Criminal Procedure (CrPC) to give it more teeth. For example,
    • A remand order can be for 30 days instead of the usual 15,
    • Maximum period of judicial custody before the filing of a chargesheet is extendable from the usual 90 days to 180 days.
• Controversy Regarding UAPA:
  • Vague Definition of Terrorist Act: The definition of a “terrorist act” under the UAPA substantially differs from the definition promoted by the United Nations (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
    • UAPA, on the other hand, offers an overbroad and ambiguous definition of a “terrorist act” which includes the death of, or injuries to, any person, damage to any property, etc.
  • Denial of Bail: The major problem with the UAPA lies in its Section 43(D)(5), which makes it difficult for any accused person to obtain bail.
    • In case, if police have filed the chargesheet that there are reasonable grounds for believing that the accusation against such person is prima facie true, bail cannot be granted.
    • Further, a Supreme Court judgment on this has clarified that the court considering bail should not examine the evidence too deeply, but must go by the prosecution version based on broad probabilities.
    • Thus, UAPA virtually denies bail, which is a safeguard and guarantee of the constitutional right to liberty.
  • Pendency of Trails: Given the state of justice delivery system in India, the rate of pendency at the level of trial is at an average of 95.5%.
  • State Overreach: It also includes any act that is “likely to threaten” or “likely to strike terror in people”, giving unbridled power to the government to brand any ordinary citizen or activist a terrorist without the actual commission of these acts.
    • It gives the state authority vague powers to detain and arrest individuals who it believes to be indulged in terrorist activities.
  • Undermining Federalism: Some experts feel that it is against the federal structure since it neglects the authority of state police in terrorism cases, given that ‘Police’ is a state subject under 7^th schedule of Indian Constitution.

Way Forward

• Drawing the line between individual freedom and state obligation to provide security is a case of classical dilemma.
• It is up to the state, judiciary, civil society, to strike a balance between constitutional freedom and the imperative of anti-terror activities.

Source: TH