Author: Aheli Ghoshal Student, Amity University, Kolkata
“Democracy is the Government of The People, By the People, For the People.” – Abraham Lincoln
This quote must have been read by all the people in their school days. This quote is quite relevant in the recent days, where numerous arrests are being made as per the UAPA or the Unlawful Activities (Prevention) Act, 2019. But why? Critics of the UAPA questions about the meaning of democracy. There are indeed some major pros and cons of this particular Act, which we will get to know from this article
So, what is this UAPA all about?
BACKGROUND: The UAPA, 1967
Back in the year 1967, large scale tensions were going on in India, where mostly there were two big tensions. The first one was caused by CN Annadurai, who was the former chief minister of Tamil Nadu. In the year 1962, he demanded for a completely separate Tamil country. However, when the Indo-China war occurred in the year 1962, he backed up from his demand.
The second one was of course the external aggression between India and China, which arose through the Indo-China war in1962. Thus, in order to prevent the internal aggressions that were going on in India at that period of time, the UAPA, 1967 was introduced.
The idea of introducing such an Act, which will prevent the unlawful activities occurring within India, came from National Integration Council (NIC) which was headed by the then Prime Minister, Indira Gandhi. As per a resolution of NIC, this Act was introduced.
The major objectives of the UAPA, 1967 were-
Centre Had The Power To Declare Any Association As Unlawful
If the centre believed that any particular association is carrying out any unlawful activities which goes against the provisions mentioned in the act, then the centre has the power to declare it as “unlawful”. This can be done by the centre, by making a notification in the Official Gazette, where they can declare such association to be unlawful.
Punishment For The Members Of The Association
All those members of the association, who were willing to stay in that association, shall receive imprisonment for one term as punishment, which can get extended to two years even. They shall also be liable to pay fine.
Punishment For Those Who Are Funding The Association
The Act also makes a provision for those people who apparently funded the Association. They shall receive imprisonment for one year and may even be liable to pay fine.
AMENDMENTS OF THE UAPA
The UAPA has been amended several times, such as in the year 1959,1972, 1986, 2004, 2008, 2013, and now, in the year 2019, where the provisions mentioned in the act has increased. Now, this Act along with dealing with unlawful activities, also deals with terrorist acts.
WHAT IS MEANT BY UNLAWFUL ACTIVITIES?
As per Section 2(o) of the UAPA, “Unlawful Activity” is defined as all those actions taken by either an individual or an association, either by committing an act, or through by words, either spoken or written, or by some visible gestures, or otherwise.
It must be noted that Section 2(o) of this Act is quite similar to section 124A of the Indian Penal Code which talks about “Sedition”.
WHAT ARE TERRORIST ACTS?
Terrorist acts can be defined as all those acts, which intends to threaten the unity, integrity, security or sovereignty of India , to strike terror in the people or any section of the people in India or in any foreign country , by using bombs, dynamite or any other explosive or inflammable substances, or any firearms or legal weapons or poison or noxious gases or other chemicals, be it biological or otherwise, in such a manner which will likely cause death or injury of some person or persons, or can cause damage or destruction of property or any disruption towards the supplies or services, which are essential to the life of the community in India.
So, if somebody has committed a “Terrorist Act”. then as per government, if-
His act has caused in the death of any person, then the accused shall be punished with death or can be imprisoned for lifetime and shall also be liable to pay fine.
Otherwise, the accused person shall be imprisoned for one term, which shall not be less than 5 years but however, can extend to lifetime imprisonment, and he or she shall also be liable to pay fine. This is provided under section 16 of the UAPA.
So, in both cases, be it a case of unlawful activity or a case of terrorist act, the government can take steps against a person who has caused it.
NOW, WHAT IS THE UAPA, 2019?
UAPA was recently amended in the parliament in the year 2019, which indeed introduced some eye-catching provisions.
Designation Of Any Individual As A Terrorist
Before the UAPA of 2019, only an organization could be regarded as unlawful association, or which has committed some terrorist act. But however, the amendment made in the year 2019 said that not only an organization, but if an individual promotes an act of terrorism or commits any unlawful activity or is found to be promoting or preparing for such activities, then he or she shall be designated as a terrorist.
A person shall be designated as a terrorist by notifying it in the Official Gazette and including his name in the 4th schedule of the Act.
The Accused Cannot Make A Justification of His Act
As per the amendment, the government is not supposed to hear the individual, so that the latter can provide a justification for whatever he has done.
Investigating Officer Of NIA Shall Require A Sanction Only From The Director General Of NIA
Before the 2019 amendment, it was required that if in any state, it was heard that some act related to terrorist activities where occurring, or some properties related to the same have been found, then an investigating officer must take permission from the Director General of the concerned State before conducting raid in that particular area. However as per the 2019 amendment, now it is said that the investigating officer of the NIA has to take permission only from the Director General of the NIA.
Who can conduct investigations?
The earlier provisions of the Act provided that investigations in this regard shall be made only by the Deputy Superintendent or Assistant Commissioner of Police of the NIA. However, the 2009 amendment allowed Inspectors to carry out investigations.
WHY WAS THIS ACT INTRODUCED?
As said earlier, through the amendment of this Act, any individual associated with terrorist acts, can be designated as a terrorist. This was done to tag Masood Azhar (founder of Jaish-e-Mohammed) as terrorist. As per the earlier provisions of the Act, since Masood Azhar was an individual, so as per the earlier UAPA, he could not be regarded as a terrorist. So, the 2019 amendment removed the problem.
Also, as per the earlier provisions of the Act, an organization can be designated as terrorist. But what about the individuals? It was noted that the individuals were escaping the punishments and were creating another terrorist organization. Moreover, there may be some individuals who are not associated in any organization but still they are committing acts of terrorism. So, it was really necessary to amend the UAPA.
PROVISIONS AVAILABLE TO AN INDIVIDUAL WHO HAS BEEN ACCUSED UNDER UAPA
An individual who has been designated as a terrorist by the centre, can file a petition. Now, if his petition gets rejected, he has a provision to file another petition within 30 days. This time, a committee will be set up to review his petition. The committee will include a chairperson, who will be a retired or a sitting judge of High Court, and three other members. If the committee finds that the individual has been unjustifiably regarded as a terrorist, then his name shall be removed from the 4th schedule.
Moreover, apart from this, the individual can even take legal action and can challenge the centre.
DISADVANTAGES OF THE UAPA
An Innocent Can Be Designated As Terrorist
The UAPA clearly violates Article 21. It causes harm to the dignity and reputation of a person, by simply designating him or her as a terrorist. He can be arrested for as long as 180 days, where there is no charge sheet, no FIR, and no judicial proceedings regarding it. Yes, as said above, a remedy is prevalent for that individual to use. But however, as we know in a populous country like India, where hundreds and thousands of cases are filed every day in every state, it is not possible for the court to provide solution to a case within a few days. Thus, before the court states that the individual has been wrongly designated as a terrorist, he shall be designated as one, as a result of which, his reputation, his dignity, gets destroyed in the whole of the society.
Person Can Be Imprisoned Without Any Judicial Procedure
A person under the UAPA can be imprisoned without any trials, and he shall not get any bail. This clearly violates the provision of Right to Bail.
Difficult For The Person To Prove
It is really difficult for the persons who are designated as a terrorist to prove that they are innocent. Why? Because it is quite hard for a single individual to fight against the centre, and prove that he is innocent, considering the fact that he has already been designated as a terrorist by the centre.
Violation Of Article 21
As per Article 21, designating somebody as a terrorist, without any trial or any judicial procedures, is against the procedure established by law.
Violation Of International Covenant On Civil And Political Rights And Right To Privacy
As per Article 6 of International Covenant On Civil And Political Rights, every human being has the right to life, and this right must be protected by law. However as per the UAPA, all those persons who are regarded as terrorist, are getting deprived of this right to life quite “arbitrarily”, where the centre simply believes that a person is a terrorist, so they are tagging them as one.
The UAPA also violates the right to privacy.
The Act in my opinion was a great one, with which individuals or organizations can be identified as terrorists, and the court can punish them. Problems started arising due to some particular amendments of the 2019 amendment, where individuals can be tagged as a terrorist without any judicial procedure or without any trials. Individuals cannot even seek bail.
Every person makes a mistake. So why cannot the centre? Some cases might arise where the centre has wrongfully acquitted an individual. He might be an innocent one. Due to this one simple mistake of the centre, his whole life might get ruined. Taking into account that no trials, no judicial procedures will be conducted, he shall forever be seen as a “criminal”. This is wrong in my opinion.
Moreover, what about the persons who are only criticizing some government measures? India is a democratic country, and as per democracy, the government must accept criticisms. Whether the criticisms are right or wrong, that is a different issue. What about Umar Khalid, who was arrested under the UAPA for protesting against the CAA?
This shows that anybody who disagrees with the government, be it for a just cause or not, shall be regarded as a terrorist. As heard from the news, people who criticised the government for something are getting arrested. The point must be noted here that they are simply criticizing the government, which can be done in a democratic country. But however, using the weapon of UAPA, people like Safoora Zargar, Varavara Rao and others are getting arrested. This is wrong.
Deepali Bhandari and Deeksha Pokriyal, “The Continuing Threat of India’s Unlawful Activities Prevention Act to Free Speech” – https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-UAPAa-free-speech/
Vakasha Sachdev, “What is the UAPA And Why Are Arrests Under It So Problematic?” – https://www.thequint.com/explainers/UAPAa-provisions-terrorist-organisation-membership-Activists#read-more