A Review Of The Unlawful Activities (Prevention) Amendment Act, 2019
May. 26, 2020 • Architi Batra
The purpose and intent behind the Unlawful Activities Prevention Act (UAPA), 1967 was to effectively prevent unlawful activities and secessionist movements in India. With the passing of the 2019 Amendment, the question that arises is this: Will these new amendments result in combatting the fight against terror or will they be misused and lead to more chaos and wrongful confinement as seen before?
Through the 1967 Act, the government was given the power to term organizations as ‘únlawful’ and the definition of unlawful activities was laid out as well. It said that a person can be held in custody for about 6 months without the filing of a charge sheet. There was no sunset clause mentioned; the Act held valid unless repealed by the Parliament.
As POTA was repealed in 2004 due to election promises, the UAPA was amended in 2004 to serve as the preventive detention law. It added what constitutes an ‘unlawful activity’, what is a ‘terrorist organization’, what is a ‘terrorist act’, and the concept of a ‘terrorist gang.’ Chapters IV, V, and VI were heavily borrowed from POTA; dealing with punishments for terrorist activities, forfeiture of proceeds of terrorism, and terrorist organizations.
Post the 2008 Mumbai terror attacks, more provisions similar to TADA and POTA were added such as the restriction of bail, incarceration without a charge, maximum period in police custody, etc. Trials are allowed to be conducted in closed, in-camera rooms where the identity of the witness is held secret. The 2012 Amendment further extended the definition of a ‘terrorist act’ to include activities that threaten the economic security of the country.
Under this Act, membership to an organization that is declared as ‘terrorist’ is a criminal offense. Detention without a charge sheet can take place up to 180 days. Anticipatory bail does not exist here. The guilt is presumed just on the basis of evidence allegedly seized.
FEATURES OF THE 2019 AMENDMENT
By the recent 2019 Amendment, individuals can be declared as ‘terrorists’. The only way a person can fight this legally is through an application to the Central Government for de-notification, which will be handled by a Review Committee of the Government itself. Now, the rank of Inspector and above in the National Investigation Agency (NIA) can investigate cases as well. The property of the defendant can be seized on approval of the Director-General of the NIA, without asking the respective State prior permission. The federal system of India is weakened with this provision and there is greater centralization of power. Also, the Government can forfeit this property even if the individual’s guilt is never proven in a trial, this goes against basic, fundamental rights.
The 2019 Act has been passed by the Rajya Sabha and the Lok Sabha; it has received the President’s assent as well. The Upper House rejected the motion sponsored by the Opposition to send the bill to a select committee. The Opposition also said that this amendment is unconstitutional and it infringes on an individual’s right to liberty. In particular, Section 35 Section 2 once amended reads as, “The Centre shall exercise its power under Clause (a) of Sub Section 1 in respect of an organization or an individual only if it believes that such organization and individual is involved in terrorism”. The word ‘believes’ is of a precarious nature as if the Central Government believes you are a terrorist, you can be called one.
Amit Shah, the Home Minister, talks about four-level scrutiny that has been provided and assures that no human rights will be violated. He mentioned that earlier the Congress had used this to target people of a particular religion. According to him, this law will help us stay ‘4 steps ahead of the terrorists’. However, former Home Minister P Chidambaram brings to attention that this law allows a person to be termed a terrorist without an FIR, charge sheet, or even a trial. He has questioned the logic and purpose of the amendments and has declared that these changes will not pass the test of judicial scrutiny.
There are quite a few grey areas that need to be looked into. For example, harbouring a person, knowing such a person to be a terrorist, is punishable under the Act. If now a person is designated as a terrorist, will anyone living with the person also be prosecuted whenever such designation takes place? These doubts are left ambiguous.
Looking at the National Crime Records under UAPA, we see
Looking at the acquittal rate, we see how disproportionate these figures are and how many people were wrongfully incarcerated under this Act. As bail is not easily granted, many people remain in prison for years at an end and are grossly violated of basic human rights.
CONCLUSION & RECOMMENDATIONS
The UAPA is a special law which means it has a greater degree of sweeping powers. Thus, there needs to be lots of footwork, evidence, and scrutiny. The NIA has better numbers when it comes to conviction rates and thus, maybe following their procedure could be a start to revamping this law. NIA has a conviction rate of 91% as mentioned by Shri Amit Shah and that is great by global standards. If the need for these laws is imperative in nature, the charge sheet and the case should be brought to the Court much faster. Instead of widening the time limit and allowing more space for review, they should be brought to trial faster in these ‘so-called desperate’ times.
If actions were previously taken with diligence and proper understanding of the said law, maybe TADA, POTA or the UAPA would not have become instruments of oppression. Therefore, in order to preserve the basic tenets of democracy, safeguards and proper implementation of this law is a major requirement.
[The author, Simran Anneka Lobo, is a 1st-year law student from Government Law College, Mumbai and likes to test the interconnection between law, politics, and society]
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References
- All India & Press India, President Gives Assent To Anti-Terror Law UAPA Amendments NDTV.COM (August 9, 2019), https://www.ndtv.com/india-news/president-ram-nath-kovind-gives-assent-to-anti-terror-law-unlawful-activities-prevention-amendment-a-2083043.
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- The Unlawful Activities (Prevention) Amendment Bill, 2019, PRSINDIA.ORG (2019), http://www.prsindia.org/sites/default/files/bill_files/Unlawful_Activities_Amendment_Bill_2011.pdf
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- Ravi Nair, The Unlawful Activities (Prevention) Amendment Act 2008: Repeating Past Mistakes, 44 Economic and Political Weekly 10-14 (January 24, 2009) https://www.epw.in/journal/2009/04/commentary/unlawful-activities-prevention-amendment-act-2008-repeating-past-mistakes
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