Critical analysis UAPA: a gateway to the compromised national liberty
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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.
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.
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.
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).
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.
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.
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