UAPA: An Attack on Dissent
This Article is written by Shubham Raj (BA. LL.B SEM 3) OF RNB Global University
ABSTRACT
Unlawful activities prevention act, 1967 (UAPA) was first introduced as an act to control any unlawful activities that are threat to the integrity and sovereignty of country. Later after amendments it became law to curb terrorist activities and action against terrorist organizations. In this article, we will talk about its flaws and how it become a tool for government against dissent. This law makes exceedingly difficult for individual to get bail and sometimes they are incarcerated for months before starting of the trial.
The UAPA from the beginning is very controversial and the new amendments made in recent times make it draconian and against fundamental rights of people that are guaranteed by the Indian Constitution. The same type of law is also introduced by some states to crush dissent and harass the individual. In the end, this article will talk about its true intentions and need for intervention from the judiciary.
INTRODUCTION
The unlawful activities prevention act, 1967 (UAPA) was enacted by the Indira Gandhi government as a statute to prevent and punish any ‘unlawful activity’. The term ‘unlawful’ was from the beginning defined vaguely, giving the law to criminalize a broad spectrum of activities. It gave government power to designate any organization as unlawful.
Over the years, UAPA had been amended few times. In 2004, the act was amended to define terrorism as crime and to grant the government the power to declare any organization a terrorist organization and ban them. After 2019 amendment it will allow central government to declare an individual as terrorist and provide National Intelligence Agency (NIA) extra powers to take control of the cases that will otherwise fall under the domain of the police in individual states.
FLAWS IN THE LAW
Over the years there have been many amendments in UAPA to include different activities under it and it also saw changes in government but one thing that did not change is that UAPA makes it exceedingly difficult for an arrested person to get bail. According to Section 43 D of UAPA court should only grant bail to accused if they are convinced that arrested person is prime facie innocent of the crime. So, it puts burden of proof on accused that is against the principle that India follow in criminal proceedings that “innocent until proven guilty”. UAPA provide power to police to file the charge sheet in 90-180 days and if accused did not get bail, he/she have to be in jail for that time period without trail. In many cases this provision is used by police to harass the individual.
In normal circumstances if anyone get arrested, they have right to know about the grounds of arrest but according to section 43B of this act there is no time limit set for accused to know about the grounds of arrest. According to section 43B “Any officer arresting a person under section 43A shall, as soon as may be, inform him of the grounds for such arrest.1” The ‘as soon as may be” in this act makes it easy for any officer to misuse this provision.
The amendment in UAPA empowers the director-general of National Investigation Agency (NIA), in cases being investigated by NIA to order the attachment or seizures of properties believed to be proceeds of terrorist activities or intended to use for such purpose irrespective of where the property is situated in India. Earlier this power was left with DG of the respective state police investigating terrorist activities. With NIA being tasked with investigating terror cases the role of state DGs become redundant and it also ignores the federal structure of the nation.
UAPA does not follow strict guidelines when it comes to the attachment of properties. Authorities mindlessly attach properties of accused ignoring third party right and mindlessly attach properties related to accused without applying their minds that whether those properties are proceeds of crime or not and this can deprive them of their civil and political rights.
The amendment in the act gives central government power to categories any individual as terrorist and add name of such person in schedule 4 of the act even before commencement of trial. There is no need for this amendment even if an individual engages in the terrorist
activity that is defined by UAPA, the government already have power to prosecute them under Chapter 4 of the existing act. Designating any one as ‘terrorist’ even before the commencement of trial can cause stigmatization and will make the life of individual a living hell. You will lose your job; it will cause shame to your family and friend and your reputation will be tarnished. This is against the Article 21 of the constitution that give right to person to live with dignity. The definition of ‘terrorist’ in this act is vaguely defined that gave executive authorities power to arrest anyone who speaks against the government, thus it also an attack on our fundamental right of free speech.
NEW STATE LAWS SIMILAR TO UAPA
Many state governments and some union territories administrators are now copying the mechanics of the law like UAPA to crush the dissent in the name of maintaining public order. Recently, Lakshadweep is trying to introduce an anti-goonda act which give administrator power to detain person for up to one year to prevent him from acting in any manner prejudicial to the maintenance of public order without legal representation. Bihar also introduced new police bill, once enacted, the Bihar Military Police will be called Bihar Special Armed Police. This bill will give special powers to police like power to arrest without warrant, arrest on suspicion, power to search without warrant. Court can take cognizance of any offence under this act against any member of special armed police only, on a report in writing of the facts constituting such offence and with the previous sanction of an officer authorized by the government on this behalf.
Nowadays, several states have a law popularly known as Goonda Act aimed at preventing the dangerous activities of special kinds of offenders. Acts like UAPA, goonda act of several states and new bill introduced in Bihar and Lakshadweep are almost same. These acts give special power to executive authorities to investigate and arrest without any strong evidence to put accused under jail without trial for long time. This is used as a tool by the government against the people who raise their voice against them and to keep them in prison for long time without trial.
The data speaks for itself. According to data provided by Ministry of Home Affairs (MHA) in Rajya Sabha, 3005 cases were registered under the UAPA between 2016-2018 but charge sheet were filed in only 821 cases, indicating that investigation could only be
completed in about 27% of these cases. 2As many as 123 cases in 2017 were pending investigation for more than one year in 2018 the figure was 68. More than 50% of total cases tried under the UAPA have resulted in acquittal, analysis of data from the year 2014-2018 shows. According to National Crime Record Bureau (NCRB) data conviction rate in UAPA cases has remained below the halfway mark. It was lowest in 2015 at 14.5% and highest in 2017 at 49.3%. in 2018 the conviction rate was 27.2%.3
CONCLUSION
It is evident from the data that most of the cases under UAPA are used to keep individuals in jail for long time without trial. It is used against activists, students, journalist anyone that government think is criticizing them. As years goes on, there is a sharp increase in numbers of arrests under UAPA.
There has been over 72% increase in arrests in 2019 compared to 2015 and 37% increase when compared to 2018.There is a need of intervention from judiciary to look into the cases whether they have any merit 4or not. This is done by Delhi High Court recently when court granted bail to three activists charged under UAPA. The judgement made on 13 June 2021 are mainly based on two principles. First, unless the ingredients of UAPA are clearly made out in the conduct of the accused, protest and dissent cannot be outlawed by labelling them as a terrorist act.5 Secondly, UAPA can be applied only in exception circumstances. The draconian law cannot be invoked for crimes that do not fall under these exceptions; however egregious they might be.6
Delhi high court has managed to ask the question about the misuse of UAPA through this judgement but this decision does not change the fact that bail in UAPA cases remain difficult. In this case court analyze the case and call out the police for a lack of evidence, the judges in this case used their discretionary power in asking questions and granting bail but this is not always the case in granting bail.
UAPA was already a controversial law that was used in the past to file clumsy case against individuals and now the amendment made it draconian in the nature. Amendment in UAPA was rushed through parliament in 2004 without any parliament scrutiny and this government has done the same regarding atrocious amendments without much discussion and scrutiny. The sad truth is that not any party want to raise voice against this law even if they are in opposition because in the end they all misuse this law against dissent and whoever criticize their authority.
1 The Unlawful Activities (Prevention) Act, 1967, Section 43B, Acts of Parliament, 1967 (India)
2 Deeptiman Tiwary, 3005 UAPA cases in 2016-2018, only 27% had charge sheets, govt tells Rajya Sabha, The Indian Express, (September 17, 2020, 7:17 am), https://indian express.com/article/india/3005-uapa-cases-in- 2016-18-only-27-had-chargesheets-govt-tells-rajya-sabha-6598956/
3 Sana Shakil, 50 % Unlawful Activities Prevention Act cases fell flat in 2014-18, newindianexpress.com, 20th September 2020, 11:30 AM, https://www.newindianexpress.com/thesundaystandard/2020/sep/20/50- percent-unlawful-activities-prevention-act-cases-fell-flat-in-2014-18-2199257.html
4 Special Correspondent, Parliament Proceedings | Over 72% rise in number of UAPA cases registered in 2019, the Hindu, 09 March 2021, 19 : 55 IST, https://www.thehindu.com/news/national/parliament-proceedings- over-72-rise -in-number-of-uapa-cases-registered-in-2019/article34029252.ece
5 Srusthisagar Yamunan, Granting bail to activists, Delhi HC exposes abuse of UAPA – but flaws inherent in law remain, Scroll.in, Jue 16, 2021, 12:52 pm, https://www.google.com/amp/s/ampscroll.in/article/997631/granting-bail-to-activists-delhi-hc-exposes- abuse-of-uapa-but-flaws-inherent-in-the-law-remain
6 Srusthisagar Yamunan, Granting bail to activists, Delhi HC exposes abuse of UAPA – but flaws inherent in law remain, Scroll.in, Jue 16, 2021, 12:52 pm, https://www.google.com/amp/s/ampscroll.in/article/997631/granting-bail-to-activists-delhi-hc-exposes- abuse-of-uapa-but-flaws-inherent-in-the-law-remain
REFRENCES
The wire.in
Scroll.in
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