Critical analysis UAPA: a gateway to the compromised national liberty

This Blog is written By Mr. Utkarsh Arora, Student of The ICFAI University, Dehradun

Introduction

Unlawful activities prevention Act (UAPA) was passed in 1967, on the National Integration council’s recommendation which was proposed and revoked twice. It was established as an anti-terrorism law, to avert the unlawful activities of some associations and to eternize the most honored sovereignty and integrity of India. (1)

The antiquity of Unlawful prevention activities Act can be traced back to British India. The Phrase “unlawful Association” was initially wielded in the “criminal law Amendment Act 1908” to criminalize the Indian National Movement.

How were the “Unlawful Activities Prevention Act” Devised?

The law came in the backdrops of 1962 china and 1965 Pakistan. The National Integration Council, (NIC: A Group of some senior politicians and public figures in India that sought ways to address these intricated problems of communalism, casteism, and regionalism) co-opted a committee on National Integration and regionalization with the sole purpose of probing into the facet of imposing some reasonable restrictions in the interest of sovereignty and integrity of India. (2)

In accordance with the recommendations provided by the aforesaid committee, the Constitution Act 1963 was enacted to impose, by law, some reasonable restrictions in the interest of sovereignty and integrity of India. These concordant recommendations of the Committee on National Integration and Regionalization commissioned by NIC were unanimously accepted by the government and the constitution Act 1963 was sanctioned to impose, by law, some reasonable restrictions on 

·         Freedom of speech and expression.

·         Right to Assemble Peacefully and without arms.

·         Right to form Associations or unions.

Now, to bring in force the provisions of the 1963 Act, the UAPA Bill was tabled in the parliament, with the main objective to establish that potential to deal with these horrendous activities directed against the integrity and sovereignty of India.

However, the bill made its way through both the houses of parliament and received the honorary assent of “Mr. President” on 30th December 1967 and this finally led to the establishment of the “Unlawful Activities Prevention Act, 1967”.

AMENDMENTS & THE “UAPA”

Throughout the years the “Unlawful Activities Prevention Act” has been amended “N” no. of times with the sole purpose to serve the primary intent of the fact as well as for the effective application of the same. But the most latest of all is the 2019 amendment, wherein the bill was introduced in “Lok Sabha” by the minister of home affairs, “Mr. Amit Shah” on July 8, 2019. And through this, the Government just opened a gateway: by supplying such amendments to the new-fangled legislation which was already & Remarkably Controversial.

“UAPA Amendments” and It's Draconian Provisions.

1. The act delivers special procedures to deal with terrorist pursuits. The provisions of this act exclusively provide the central government with all the powers to designate an organization as a terrorist organization or association if it:

·         It commits or participates in the act of terrorism.

·         Prepares for terrorism.

·         Promotes terrorism 

·         Or is otherwise involved in it.

The bill most astoundingly makes the government potential of designating individuals as terrorists on the same grounds.

2. Under the act, an investigating officer needs to obtain an antecedent approval of director general of police to capture or seize the properties that may be associated with terrorism but the amendment in the anti-terror law allows the Director-General of NIA ( National Investigating Agency) to approve the seizure of such property or attachment. 

3. The bill empowers the officers of NIA even of the rank of Inspector to investigate the cases whereas previously the investigation of cases was only conducted by the deputy superintendent or assistant commissioner rank holders of Police and above. (3)

4. Most astonishingly, the amended law shifts the Burden of proof from the prosecution to the accused individual.

Provisions are Draconian but Why?

Let’s start at the very beginning.

Unlawful activities prevention act empowers the center to designate an association or an organization as a terrorist, irrespective of many other reasons for the establishment of such association.

UAPA’s Definition of “association” is making this law all the more prone to arbitrary and prejudice instead of being a strong judicial the tool, as it blurs all the distinctions for many different causes of such association by turning a blind eye to the fact that an association may transpire from multiple needs which can be any like community, religious, cultural, economic, etc., And the most prone personalities to the abuse of this law are those who are working in the field of safeguarding human rights, as they have to necessarily interact or engage with people, organization and groups that hold opinions, which are actually at odds with the state or government in power. 

Then, the amendment in the anti-terror law empowered the government to designate an individual as a terrorist on the same grounds wherein most astonishingly an individual can be designated as a terrorist even without establishing their affiliation with any such organization. 

And with this comes into the picture, a very genuine the question, that why an individual is being designated as a terrorist on the same grounds, why isn’t the bill ideally mentioning a separate procedure for individuals?

Moreover, this practice of putting a tag of terrorist on individuals without giving him/her an opportunity of a fair trial are the direct violation of “Article 21” wherein (No person shall be deprived of his life or personal liberty except according to the procedure established in law) & “Article 14” (equity before law) of the constitution of India. Along with this, the amendments in the anti-terror law emancipates NIA from “Article 22” ( A safeguard that sets forth a provision in the interest of the accused, that one who is arrested or detained in custody shall be produced before the magistrate within the period of 24 hrs. of arrest). (4)

Who will take the “Responsibility”?

The amendment in the aforesaid law further provides a provision that empowers the Director-General of NIA to approve the seizure of any such attachment or property which is believed to represent the proceeds of terror, which was not there before. In addition to this, the amendment further empowers the officers of NIA even of the rank of the inspector(s) to conduct the investigation which was previously not there, with the sole purpose to avert any such abysmal investigation by allowing only the deputy superintendent and assistant commissioner rank holders of the police department to conduct any such investigation.

Now the next very important question which comes up is: Who will take the responsibility to ensure that this amended law is not misused to hound people out or expose them to prejudice?

The shift in the burden of proof: Isn’t it a proper “modus operandi” to confine people endlessly?

Let’s see how.

Basically in criminal law, a person is innocent until proven guilty and the whole burden of proof lies completely on the doors of the prosecution, but now things are changed, the accused individual has to himself prove his innocence to liberalize himself from the charges of UAPA, but the question is how will a person who is already in jail prove himself innocent? 

As we all know that the accused individual sitting inside the jail will lack all the machinery and resources to prove himself the same whereas the prosecution has all of them (the machinery & resources), and this is the reason enough that why people are today languishing in jails even after being innocent and in such cases there are 100-200 witnesses to prove the innocence but again comes the point, lack of machinery and resources which an accused individual is given to prove his fact of innocence and disprove the charges of prosecution which altogether confines them in jails to rot and languish endlessly. (5) 

Conclusion

To Conclude, the aforesaid contentions are enough to delineate a very clear picture of why: these amendments and the provisions of this law is considered draconian and how the government has its authority to punish people on “extremely flimsy grounds”.

With the amendment, the government has legally sanctioned itself to perpetuate the indefinite detention of people without any trial and much shreds of evidence. 

At last, yes it is true and no one can deny it as well that the whole world today is facing this the immortal challenge of terrorism and India isn’t free from it. We also had some very serious terrorist strikes in this country, beginning in 1992 i.e. the demolition of Babri Masjid to 26/11 attacks. So a very strong anti-terror law is required but the application and implementation of such powers must be based on very sound principles, and it must be critically examined by the judiciary, but unfortunately, the judiciary today refuses to intervene “AT ALL”. 

References

1. D Bhandari, & D Pokhriyal, The continuing Threat Of India's Unlawful  Activities Prevention Act to free Speech (June2, 2020), https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/.

2. N Anuja, The Unlawful Activities (Prevention) Amendment Act, (ed,2020).

3. PL Research, The unlawful activities Prevention bill, 2019 (2020), https://www.prsindia.org/billtrack/unlawful-activities-prevention-amendment-bill-2019.

4. T, Anwar, UAPA Gateway to misuse Anti-Terror Law ( Aug. 10, 2019),  https://www.newclick.in/UAPA-amendment-gateway-misuse-anti-terror-law-critics.

5. T Quint, UAPA Being misused to confine political prisoners endlessly: PUDR (Oct 2018,)  https:/www.thequint.com/news/india/activist-arrest-bhima-koregaon-how-Uapa-being-misused-pude.