TENUOUS LEGALITY: ANALYSIS OF THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967
Abstract: This article deals with various controversial provisions of the UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967. This article holds relevance in light of the recent amendments made in the Act in 2019, but the current framework of anti-terror legislation in the world's largest democracy is typified by an arrant exploitation of fundamental Human Rights of citizens through the usage of obtrusive methods of violence by the State with the given succor of National Security Laws.
Keywords: Criminal Law Amendment Act, Unlawful Activities Prevention Act, Fundamental Human Rights, Reasonable Restrictions.
The standard view of a majority of lay people and experts is that the laws are amenable to misuse because they are inert and objective, but they turn into a tool of prejudice only when they are in the hands of a corrupt system. The current framework of anti-terror legislation in the world's largest democracy is typified by an arrant exploitation of fundamental Human Rights of the citizens through the usage of obtrusive methods of violence by the State with the succour of National Security Laws. The Unlawful Activity (Prevention) Act, 1967 (UAPA) (herein referred to as the Act) was brought to prevent unlawful activities and associations threatening the sovereignty and integrity of our nation. This Act takes its root from the Criminal Law Amendment Act, 1908 of the British eras, which was used to suppress the freedom movement by the Indian Nationalists. The colonial mindset of the State is rendered through this Act by infringing the fundamental rights to assemble and protest through banning such political organizations who question or criticize the government.
The Constitution of India guarantees certain fundamental rights to its citizens. Article 19(1)(a) of the Constitution of India states that "Everyone has the right to free speech and the freedom to hold views without intervention, as well as the freedom to seek, obtain, and impart information and ideas across all media and regardless of boundaries." Here, the rights enumerated are subject to "reasonable restrictions" under Article 19(2) of the Constitution of India, imposed by the State that are not, however, to be unconstitutional and illegitimate. In the past, there have been several attempts by the State to rim these freedoms under the name of "reasonable restrictions," but the judiciary took proactive steps in the cases of Romesh Thapar v. the State of Madras [1950 AIR 124], V.G Show v. the State of Madras [AIR 1951 Mad 147], and A.K. Gopalan v. the State of Madras [1950 AIR 27]. The Court in these cases stated that these fundamental rights can be curtailed only in extreme circumstances and these attempts by the State to curb the fundamental rights are unconstitutional.
NEBULOUSNESS IN THE DEFINITION IN THE ACT
Amendments made in the Act in 2008, encompass bewildering definitions of terrorism, which makes the violation of Human Rights more severe. Nebulous definitions, along with harsh penalties and broad ancillary powers of detention, are often misused by the State to persecute opposing political parties or marginal religious and ethnic sections of the society.
The Universal Declaration of Human Rights defined by the State to promote the Act is itself contradictory as it will give discretionary and arguably limitless powers to the central government, which will likely encourage arbitrary and unreasonable use of the Act to silence a particular person, group, or section of society.. It is against the principles of Privacy and Legal Certainty. Section 43E of the Act imposes the burden of proof on the accused instead of the prosecution, which means that the State will suppose him as guilty, which contradicts the basic principle of "innocent until proven guilty." Under this, the investigating agencies can conduct a raid, seize things and arrest people even outside their judicial authorization, thus infringing upon the Right to Privacy of the individual.
Section 35 of the Act empowers the Central Government to label any organization or group as a terrorist organization if it believes that they are "involved in terrorism." It also has the provision to designate any individual as a terrorist if he fulfils the conditions mentioned in Section 35 of the Act. Arbitrary arrests are very prevalent in our country. Absolute discretion out of control by the general guidelines is against the rule of law. Section 35 of the Act empowers the State to label an individual as a terrorist and notify the Official Gazette. The review committee that will decide on the notification of a person as a terrorist is also constituted by the Central government. The wording of Section 25 of the Act, i.e., "has reason to believe," vests wide and unregulated powers in the hand of investigating agencies. Notifying the name of the individual in the Official Gazette can tarnish the individual's reputation without having been proved guilty, and also infringes upon the Right to Reputation enshrined in Article 21 of the Indian Constitution.
The said provision subsumes the word "terrorism" in it, which is nowhere defined in the Act and has a broad meaning. Here, it is totally at the discretion of the investigating agencies to delineate the meaning of terrorism. Even the basic definition of 'terrorist act' defined in the Act is different from the one defined by the United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
The Prevention of Terrorism Act, 2002 was repealed due to massive protests from the opposition, and the Act was amended in 2004. In the 2004 amendment, the Act empowered the government to ban organizations by naming them "terrorists." The leading cause of concern here is the definition of "terrorist acts," which deviates from the suggestions of international instruments. Section 2(o) of the Act defines 'unlawful activity' as "any action taken by such individual or association that is intended, or supports any claim, to bring about, on any ground, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession." Here, there is no mention of physical violence in the definition, and it is so broad that it can criminalize any view that the government considers a threat to their power. Any act of "whatever nature" that can threaten India's national security- be it fiscal stability or livelihood security can potentially come under the ambit of terrorist acts. Looking closely, it becomes very obvious that the new provisions have vested unbridled powers in the hands of the Central Government. There is a disregard for the rights of the citizens with the ambiguity shown in the elements and provisions of the amendment.
The new amendment gives great power to the State machinery and with that great power comes great responsibility. A classical dilemma that has followed us all these years is drawing the line between individual freedom and State obligation to provide security. Due to this nebulousness, the government is empowered to prosecute even constitutionally protected activities like criticism of the government's policies and label them as a threat to national security.
There have been many demonstrations in India over a range of issues, such as the Citizen Amendment Act, 2019 to Farm Bills, 2020. During the protests on these issues, almost all the newspapers and news channels were splayed with arrests and detentions under UAPA. According to the 2019 National Crime Records Bureau (NCRB) report, there has been an increase of 33% in the Unlawful Activities Prevention Act, 1967 (UAPA) from 2016. Despite a large number of arrests and detentions, the information released by the Ministry of Home Affairs shows a proportionately low conviction rate in the cases of the Act. In 2019, 1948 people were arrested in cases related to the Act, but none of them were convicted. Such instances question the validity and intention of the State behind these arrests. It also demonstrates how the State has prosecuted a multitude of innocent people under this Act.
While dealing with cases of the Act, the courts have often encountered violations of fundamental rights. In Jyoti Chorge v. the State of Maharashtra, the court observed that "Possession of a certain social or political ideology would constitute an offence, notwithstanding the fact that such literature is not expressly or specifically prohibited by any provision of law, which is a surprising proposition in a democratic country like ours." Finally, the court held that the government's interpretation is contrary to the fundamental rights, and the alleged Act did not amount to any offense.
In Kartar Singh v. the State of Punjab, the Supreme Court of India laid down specific procedures to regulate the broad powers of the State and maintain a fair and reasonable procedure. In the context of the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Supreme Court of India stated that there must be a free atmosphere for the accused, and an equal opportunity to be heard must be provided. There was a provision for the screening committee to review the entire prosecution process under TADA, but all the guidelines are ignored in the Act while classifying an individual as a terrorist.
In Sri Indira Das v. the State of Assam, the Court held that Section 10 of the Act, which makes mere membership of any organized crime punishable, has to be read down with the actual interpretation of the law; otherwise, it will become unconstitutional and violative of fundamental rights.
In Union of India v. K.A. Najeeb, the Supreme Court of India held that any country's Constitutional Court could grant bail in the Unlawful Activities Prevention Act (UAPA) 1967 irrespective of the section imposed, in order to enforce the right to a speedy trial.
The solutions to this issue are multifaceted. Some efforts that could help the situation are as follows-
● Revising the definition: To remove the vagueness of the Act, the Government must consider revising the definition of "terrorism" in the Act, with the recommendations of the U.N special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. It should also be ensured that restrictions imposed on organizations are in accordance with the right to freedom of associations under International Law.
● Independent Institution for the fair review process: There should be a fair review process and an independent institution where the accused can challenge the decision of the Government and present evidence in support of their challenge.
● Speedy Disposal of the review process: These independent institutions must ensure speedy judicial review of accused detained under the Act to protect the rights of the innocent.
● Repeal Section 43E of the UAPA: Section 43E of the Act must be repealed as it transfers the burden of proof on the accused, violating the principle "innocent until proven guilty."
● Removal of Arbitrary Arrest, Search and Seizure, and Compulsion of Information: This provision provides the discretion for search, seizure, and arrest to the investigating agencies, which has a comprehensive meaning. It is against India's obligation under the ICCPR, which requires that anyone arrested "shall be informed, at the time of arrest, of the reasons" for their arrest.
Prevention of Terrorism is an essential duty of the State, but they should not choose the wrong end of the stick by achieving this goal through violation of Human Rights. Dissent is an essential cornerstone of modern democracy, but protecting the sovereignty through the use of these stringent laws at the cost of the citizen's fundamental rights will handicap the growth of our democracy. The Act crushes dissent and freedom of speech and expression in the name of public order. While the Government's aim to combat this evil with strict legislation is admirable, prior study and reflection must be undertaken at the risk of the Act being misused, and actions must be taken to resolve it.
A.K. Gopalan v. the State of Madras, 1950 AIR 27. n.d.
Jyoti Chorge v. The State of Maharashtra, CRIMINAL BAIL APPLICATION NO. 1020 of 2012. n.d.
Kartar Singh v. The State of Punjab, 1961 AIR 1787. n.d.
Romesh Thapar v. the State of Madras, 1950 AIR 124. n.d.
Sri Indira Das v. the State of Assam, CRIMINAL APPEAL NO.1383 OF 2007. n.d.
The Unlawful Activities (Prevention) Act, 1967, $2(o). n.d.
The Unlawful Activities (Prevention) Act, 1967, $25. n.d.
The Unlawful Activities (Prevention) Act, 1967, $35. n.d.
Union of India v. K.A.K.A. Najeeb, CRIMINAL APPEAL NO. 98 of 2021. n.d.
V.G Show v. the State of Madras, AIR 1951 Mad 147. n.d.
This piece has been co-authored by Rishika Sharma and Ritu Raj.
Rishika Sharma is a first-year law student in Chanakya National Law University, Patna and Ritu Raj is a first year law student in National Law University and Judicial Academy, Assam.