Unlawful Activities (Prevention) Act

Unlawful Activities (Prevention) Act is an Indian law aimed at prevention of unlawful activities associations in India. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.[1] The most recent amendment of the law, the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA 2019) has made it possible for the Union Government to designate individuals as terrorists without a due process of law. UAPA is also known as the Anti-terror law.

The Unlawful Activities (Prevention) Act, 1967
Amendment Act, 2019
Emblem of India.svg
Parliament of India
  • An Act to provide for the effective prevention of certain unlawful activities of individuals and associations and for matters connected therewith.
CitationAct No. 37 of 1967
Territorial extentIndia
Enacted byParliament of India
Assented to30 December 1967[1]
Amended by
1. The Unlawful Activities (Prevention) Amendment Act, 1969 (24 of 1969).

2. The Criminal Law (Amendment) Act, 1972 (31 of 1972).
3. The Delegated Legislation Provisions (Amendment) Act, 1986 (4 of 1986).
4. The Unlawful Activities (Prevention) Amendment Act, 2004 (29 of 2004).
5. The Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008).

6. Individuals can also be tagged under terrorist Amendment Act, 2019
Status: In force

The National Integration Council appointed a Committee on National Integration and Regionalisation to look into the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India. The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism.[2] Pursuant to the acceptance of recommendations of the committee, the Constitution (Sixteenth Amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India. In 2019, the BJP led NDA government claimed that in order to implement the provisions of 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament.[3]

United Nations special rapporteurs stated that the provisions of the UAPA 2019, contravenes several articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.[4] The opposition parties in India called the UAPA a draconian anti-terror law. BBC has reported that people arrested and charged with UAPA find it harder to get bail. PM Narendra Modi led BJP Union Government has been using UAPA 2019 to stifle dissent and target minorities in India.

HistoryEdit

Pursuant to the acceptance by Government of a unanimous recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law, reasonable restrictions in the interests of sovereignty and integrity of India, on the:

  1. Freedom of Speech and Expression;
  2. Right to Assemble peaceably and without arms; and
  3. Right to Form Associations or Unions.

The object of this bill was to make powers available for dealing with activities directed against the integrity and sovereignty of India. The bill was passed by both the Houses of Parliament and received the assent of the President on 30 December 1967. The Amending Acts are as follows:

  1. The Unlawful Activities (Prevention) Amendment Act, 1969[5]
  2. The Criminal Law (Amendment) Act, 1972
  3. The Delegated Legislation Provisions (Amendment) Act, 1986
  4. The Unlawful Activities (Prevention) Amendment Act, 2004
  5. The Unlawful Activities (Prevention) Amendment Act, 2008
  6. The Unlawful Activities (Prevention) Amendment Act, 2012[6]
  7. The Unlawful Activities (Prevention) Amendment Act, 2019[7]

This last Amendment was enacted after POTA was withdrawn by the Parliament. However, in the Amendment Act in 2004, most of provisions of POTA were re-incorporated. In 2008, after Mumbai attacks, it was further strengthened. The most recent amendment has been done in 2019. According to the statement of objects and reasons, the Bill amends the Unlawful Activities (Prevention) Act, 1967 to make it more effective in preventing unlawful activities, and meet commitments made at the Financial Action Task Force (an intergovernmental organization to combat money laundering and terrorism financing).[8] In July 2019, the ambit of UAPA was expanded. It was amended allowing the government to designate an individual as a terrorist without trial. The previous versions of the Bill allowed for only groups to be designated as terrorists.[9]

In a ruling passed on 1 February 2021, the Supreme Court of India ruled that bail could be granted to accused if the right to speedy trial was violated.[10]

Unlawful Activities (Prevention) Amendment Act, 2019Edit

The Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in Lok Sabha by the Minister of Home Affairs, Amit Shah, on 8 July 2019. The Bill amends the Unlawful Activities (Prevention) Act, 1967. The Act provides special procedures to deal with terrorist activities, among other things. The act was passed in the Lok Sabha on 24 July and Rajya Sabha on 2 August. It received the assent of the president on 8 August.[11]

PRS Legislative Research explained the act below:[11]

Who may commit terrorism: Under the Act, the central government may designate an organisation as a terrorist organisation if it:

(i) commits or participates in acts of terrorism,
(ii) prepares for terrorism,
(iii) promotes terrorism, or
(iv) is otherwise involved in terrorism.

The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.

Approval for seizure of property by NIA: Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police to seize properties that may be connected with terrorism. The Bill adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA would be required for seizure of such property.

Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.

Insertion to schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill also adds another treaty to the list. This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).[11]

MechanismEdit

For prosecution under Section 13 of the UAPA, the permission of the Ministry of Home Affairs (MHA) is required. However, for prosecution under Sections 16,17 and 18, the permission of the respective State government is required.[12] Section 25 allows the NIA to seize property it considers to be proceeds of terrorism, with the written consent of the Director General of Police (DGP) of the State. However, it is possible for the NIA officer to obtain the consent of the DGP of the NIA thus bypassing the State DGP[13] The police normally have 60 to 90 days to investigate a case and submit a charge-sheet failing which the accused may obtain default bail. However, under the UAPA, this pre-charge sheet time is extended to 180 days. Further, normal bail rules do not apply to an accused under Section 43(d)5 of the UAPA.[14][15]

CriticismEdit

In July 2019 while introducing the Unlawful Activities (Prevention) Amendment Bill, 2019 the BJP led Union Government claimed that the bill would give it power to probe terror attacks on India, the Opposition parties in the Lok Sabha termed it draconian. The Opposition claimed that the Bill did not contain any provisions to prevent misuse. Specifically, the power to designate an individual as a terrorist before being proven guilty by trial, was criticised.[9][16] Critics of the UAPA consider the definitions of "terrorist", "like to threaten" and "likely to strike terror" to be very broad and open to misuse by the police as the burden of proof of innocence is on the accused.[14] The example of Gaur Chakraborty among others is cited wherein he spent 7 years in prison during trial only to be acquitted of all charges, wherein the imprisonment during trial itself amounted to punishment.[17]

In 2020, United Nations special rapporteurs stated that the provisions of the UAPA 2019, contravenes several articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.[4]

Lawyer Rongeet Poddar wrote in the Oxford Human Rights Hub, that UAPA 2019 has made it possible for the Union Government to designate individuals as terrorists without a due process of law. He wrote, "Neither the Amendment Bill nor the parent statute provides a concrete definition of terrorism. This opens a Pandora's box. Categorization as a 'terrorist' by the executive bears serious consequences, such as social boycott or loss of employment." Such labeling by the executive could lead to mob lynching by the vigilante groups in India. Calling it a "colourable legislation which bears the potential for abuse by the executive", he noted that the constitutionality of the act should be contested. He wrote, the UAPA 2019 "echoes laws made under the colonial regime to crush the freedom movement in the garb of ensuring public order."[18]

As part of the K. G. Kannabiran Lectures on Law, Justice and Human Rights, Senior Advocate Mihir Desai in a lecture titled, "The Problem Of Preventive Detention in India", delivered on 23 November 2020, stated

"Preventive detention laws and special legislations like UAPA -- anti-terror laws as they are called -- allow the state to carve out exception for its own lawlessness. These are the laws which permit the state to claim that we are governed by the rule of law and on the other hand pass such legislations which violate the rule of law altogether. These are the laws which go against the basic tenets of the constitution, such as freedom, equality, right to life, liberty etc. It therefore becomes important to look at these laws which gives an exceptional power to the state over citizens -- to arrest them, to detain them, to charge them with offences which otherwise they may not be able to charge them with, keep them behind bars for years together, and also for ensuring that dissent in all forms is crushed."[19]

On 25 July 2021, Justice Aftab Alam, former Supreme Court judge spoke on a webinar titled "Discussion On Democracy, Dissent and Draconian Law – Should UAPA & Sedition Have A Place In Our Statute Books?". In the discussion, he called UAPA a "draconian law" and said that it was the UAPA that caused the death of Father Stan Swamy without a trial. Stan Swamy was an activist that was charged with UAPA for his alleged role in the 2018 Bhima Koregaon violence and links to the Communist Party of India (Maoist) and later died in prison due to COVID-19.[20] Alam further stated that UAPA has a realistic conviction rate of 2%. He further stated that this law can lead to situations where case may fail but the accused would have been incarcerated for 8 to 12 years. He said in such cases, the case may have no legs to stand on but the accused has suffered and he concluded that in such cases the process becomes the punishment.[21]

While the misuse of the law has been constantly debated, Police was also criticized for not invoking UAPA in some cases like the Haridwar hate speech case.[22][23]

On 20 January 2022, BBC called the UAPA a draconian anti-terror law and reported that many protestors and journalists were arrested detained or charged with UAPA. UAPA had made it harder for the accused to get bail. PM Narendra Modi led BJP Union Government has been accused of misusing UAPA to stifle dissent and target minorities in India.[24]

Notable arrests made under the ActEdit

Between 2016 and 2018, 3,005 cases were registered under UAPA and 3,974 have been arrested.[25]

Notable arrests made under the act and their current status
Name Notes Charge Year Current Status
Kobad Ghandy Sedition, UAPA [26] 2009 Acquitted in 2016[27]
Arun Ferreira Human Rights Activist 2007; Rearrested 2018 Acquitted in 2012[28]
Since August 2018, lodged in Taloja prison[29]
Binayak Sen Doctor and Human rights activist [30]
Gaur Chakraborty[31] Incarcerated for 7 years Accused of involvement in terrorist activity and member of banned organisation 2009 Acquitted of charges in 2016
Thirumurugan Gandhi Human Rights Activist, founder - May 17 Movement [32] 2018
G.N. Saibaba Scholar, writer, human rights activist and professor Sentence to life for having Maoist link.[33] 2017
Sudhir Dhawale, Dalit Rights Activist Accused in 2018 Bhima Koregaon violence.[34] 2018
Mahesh Raut Tribal Rights Activist Accused in 2018 Bhima Koregaon violence.[34] 2018
Shoma Sen Rights Activist/ Professor Accused in 2018 Bhima Koregaon violence.[34] 2018
Surendra Gadling Dalit and tribal rights lawyer Accused in 2018 Bhima Koregaon violence.[34] 2018
Rona Wilson Secretary - Committee for Release of Political Prisoners Accused in 2018 Bhima Koregaon violence.[34] 2018
Sudha Bharadwaj Trade Unionist/Civil Rights Activist Accused in 2018 Bhima Koregaon violence.[34] 2018 Granted bail on 9 December 2021[35]
Varavara Rao Activist/Poet Accused in 2018 Bhima Koregaon violence.[36] 2018 Granted bail on medical grounds
Vernon Gonsalves trade unionist, activist and academician Accused in 2007 for Naxalite links and in 2018 Bhima Koregaon violence[37] 2007 & 2018 Since August 2018, lodged in Taloja prison[29]
Gautam Navlakha Human Rights Activist/Journalist Accused in 2018 Bhima Koregaon violence.[38] 2018
Asif Sultan Journalist [39] 2018
Akhil Gogoi Peasant leader/ RTI Activist For CAA-NRC Protests[40] 2019 Acquitted in 2021[41]
Masrat Zahra Journalist [42] 2020
Anand Teltumbde Civil Rights Activist/Scholar 2020
Meeran Haider Student Activists [43] 2020
Safoora Zargar Student Activists [43] 2020
Sharjeel Imam Activist Seditious speech during anti CAA protests in Delhi[44] 2020
Umar Khalid Human Rights Activist Accused in Delhi Riots[45] 2020
Stan Swamy Jesuit priest, tribals rights activist Accused in 2018 Bhima Koregaon violence October 2020 Died during incarceration - 2021
Ishrat Jahan Congress Councillor, Delhi Anti-CAA protests February 2020 Granted bail on 14 March 2022[46]
Siddique Kappan Journalist Arrested on his way to report on the death of a Dalit teenager[47] October 2020
Ahmad Murtaza Abbasi IIT Graduate Arrested for trying to enter the Gorakhnath Math forcibly and attacking Security Personnel.[48] April 2022
Yasin Malik Terrorist UAPA May 2022 Life imprisonment

See alsoEdit

ReferencesEdit

  1. ^ a b "UAPA, 1967 at NIA.gov.in" (PDF). NIA. Retrieved 28 December 2012.
  2. ^ "National Integration Council reconstituted". The Hindu. Retrieved 23 November 2020.
  3. ^ "The Unlawful Activities (Prevention) Act" (PDF). Nia.gov.in.
  4. ^ a b "UN Special Rapporteurs express concerns over UAPA". TheLeaflet. 18 May 2020. Retrieved 1 March 2022.
  5. ^ "The unlawful activities (prevention) Act, 1967" (PDF). Retrieved 12 February 2020.
  6. ^ "The Unlawful Activities Prevention (Amendment) Act, 2012" (PDF). Government of India. Retrieved 11 January 2017.
  7. ^ "The Unlawful Activities (Prevention) Amendment Bill, 2019" (PDF). Retrieved 12 February 2020.
  8. ^ "PRS | Bill Track | The Unlawful Activities (Prevention) Amendment Bill, 2011". www.prsindia.org. 29 December 2011. Retrieved 15 August 2016.
  9. ^ a b "UAPA Bill draconian, terms Opposition in Lok Sabha". The Hindu. 8 July 2019. Retrieved 20 November 2020.
  10. ^ "Breaking-Violation Of Fundamental Right To Speedy Trial Is A Ground For Constitutional Court To Grant Bail In UAPA Cases: Supreme Court". www.livelaw.in. 1 February 2021.
  11. ^ a b c "The Unlawful Activities (Prevention) Amendment Bill, 2019". PRS Legislative Research. Retrieved 1 March 2022.   This article incorporates text available under the CC BY 4.0 license.
  12. ^ "Delhi Riots 'Conspiracy': In Tandem with MHA, Kejriwal Govt Clears Trial of Umar Khalid Under UAPA". Newsclick. Retrieved 20 November 2020.
  13. ^ Bora, Harsh. "UAPA Amended: The Govt Is Stealing Our Liberty From Under Our Feet". Huffpost. Retrieved 20 November 2020.
  14. ^ a b Ambasta, Kunal (23 October 2018). "The law will not hold". The Indian Express. Retrieved 20 November 2020.
  15. ^ "Section 43D. Modified application of certain provisions of the Code". Indiacode. Retrieved 25 November 2020.
  16. ^ "Opposition slams amendment to UAPA, call it draconian". Deccan Herald. 2 August 2019. Retrieved 20 November 2020.
  17. ^ "CPI (Maoist) spokesperson acquitted". The Hindu. 20 July 2016. Retrieved 22 November 2020.
  18. ^ Poddar, Rongeet (14 August 2019). "Constitutionality of India's Unlawful Activities (Prevention) Amendment Bill, 2019: India's McCarthyism Moment | OHRH". Retrieved 1 March 2022.
  19. ^ Mihir Desai (29 November 2020). "Preventive Detention Laws Allow State To Carve Out Exception For Its Lawlessness". LiveLaw. Retrieved 29 November 2020.{{cite web}}: CS1 maint: url-status (link)
  20. ^ Sandhu, Kamaljit Kaur (13 October 2020). "This is what NIA's Bhima Koregaon chargesheet says about Stan Swamy". India Today. Retrieved 28 July 2021.
  21. ^ Jain, Mehal (25 July 2021). "In UAPA Cases The Process Itself The Punishment, It Stares Us In The Face In The Death Of Father Stan Swamy Without Trial: Justice Aftab Alam". www.livelaw.in. Retrieved 28 July 2021.
  22. ^ "Haridwar hate speeches call for UAPA, sedition charges: Advocate Dushyant Dave". The Quint.
  23. ^ "Haridwar hate speech offenders should be booked under UAPA, says Congress leader Kapil Sibal". Free Press Journal.
  24. ^ "Yati Narsinghanand Saraswati: Who is the arrested Hindu priest?". BBC News. 20 January 2022. Retrieved 1 March 2022.
  25. ^ Siva Kumar, Revathi. "A Tale of Two Arrests: Anchor Arnab Goswami & Activist Stan Swamy". The Leaflet. Retrieved 25 November 2020.
  26. ^ Jha, Satish (15 October 2019). "73 yr old Maoist ideologue Kobad Ghandy gets bail". Retrieved 24 November 2020.
  27. ^ Kumar, Nirnimesh (11 June 2016). "Kobad Ghandy cleared of terror charges". The Hindu. ISSN 0971-751X. Retrieved 6 July 2021.
  28. ^ Karlikar, Nishikant; Ali, S. Ahmed (29 August 2018). "Knock on Ferreira's door came at 6am, arrest 9 hours later". Retrieved 20 November 2020.
  29. ^ a b Scroll Staff (14 November 2020). "'Humanity is bubbling in Taloja prison,' Stan Swamy says in letter to friends". Scroll.in. Retrieved 1 March 2022.
  30. ^ Aman Sethi (24 December 2010). "Life term for Binayak Sen". The Hindu. Retrieved 14 September 2017.
  31. ^ "City court acquits man held under UAPA after 7 years". timesofindia.indiatimes.com. 19 July 2016. Retrieved 14 September 2017.
  32. ^ Sivaraman, R. (9 August 2018). "May 17 Movement leader Thirumurugan Gandhi held in Bengaluru on charges of sedition". The Hindu. ISSN 0971-751X. Retrieved 23 July 2019.
  33. ^ Sebastian, Manu (26 March 2019). "No Release For Professor G N Saibaba As Bombay HC Refuses To Suspend Sentence [Read Order]". www.livelaw.in. Retrieved 12 March 2021.
  34. ^ a b c d e f "The People's Fighters: Meet the Five Arrested in the Bhima Koregaon Case". The Wire. The Wire. Retrieved 10 October 2020.
  35. ^ "Sudha Bhardwaj walks out of Byculla jail. Here are the bail conditions set by NIA court". The Indian Express. 9 December 2021. Retrieved 9 December 2021.
  36. ^ ""Free At Last": Poet Varavara Rao, 81, Released After Last Month's Bail". NDTV.com. Retrieved 6 July 2021.
  37. ^ Ramesh, Mythreyee (29 August 2018). "Who Is Vernon Gonsalves, the Activist Held for 'Naxalite' Links". The Quint. Archived from the original on 19 April 2021. Retrieved 6 July 2021.
  38. ^ "Activist Gautam Navlakha before surrender: Accused guilty unless proven innocent is new norm". The Indian Express. 14 April 2020. Retrieved 6 July 2021.
  39. ^ Kuchay, Bilal (31 May 2021). "Kashmiri journalist Aasif Sultan kept in jail for more than 1,000 days". Al Jazeera. Archived from the original on 2 July 2021. Retrieved 6 July 2021.
  40. ^ "Citizenship Act: Akhil Gogoi charged with criminal conspiracy, unlawful association under UAPA". Scroll India. Scroll India. Retrieved 10 October 2020.
  41. ^ "CAA protest case: NIA court clears Akhil Gogoi of all charges". Telegraph India. 2 July 2021. Archived from the original on 2 July 2021. Retrieved 6 July 2021.
  42. ^ "Crackdown amid corona: Kashmir police book photojournalist Masrat Zahra under UAPA to send a message". Caravan. Retrieved 24 April 2020.
  43. ^ a b "Delhi violence: UAPA against students 'grave abuse of state power', says civil society group". Scroll. Retrieved 24 April 2020.
  44. ^ "No immediate Supreme Court relief for anti-CAA activist Sharjeel Imam". The Hindu. 26 May 2020. Retrieved 22 July 2020.
  45. ^ "Umar Khalid: India student leader arrested over Delhi riots". BBC News. 14 September 2020. Retrieved 14 September 2020.
  46. ^ "Delhi pogrom UAPA case: Ishrat Jahan gets bail". Maktoob media. 14 March 2022. Archived from the original on 14 March 2022. Retrieved 14 March 2022.
  47. ^ Ameen, Furquan. "Why a Muslim reporter in India has spent nearly 150 days in jail". www.aljazeera.com. Retrieved 3 June 2021.
  48. ^ Chakraborty, Pathikrit; Arjum; Apr 17, Bano / TNN / Updated; 2022. "gorakhnath: Uttar Pradesh: Gorakhnath temple attacker had IS links, charged under UAPA | Lucknow News - Times of India". The Times of India. Retrieved 18 April 2022.{{cite web}}: CS1 maint: numeric names: authors list (link)

BibliographyEdit

Further readingEdit