The UAPA Law and the Human Rights Concerns

The UAPA has been rushed through decades which grossly violates many human rights. The police, under the threat of national security has misused their powers. The democratic government and legal fraternity has been unsuccessful in protecting the basic human rights of individuals, especially when the tussle has been between social security and inalienable rights of the individuals. Disappointingly, the provisions of enactment are borrowed from previous anti-terrorist laws, which were discredited due to their misuse by the police and their draconian anti-rights measures. Some of the most disputed elements of the enactment are discussed below, that are being misused and has the tendency of causing violations of human rights.

1. Arrest- Under Section 43A of the amended Unlawful Activities (Prevention) Act, a person may be arrested by any officer of the ‘Designated Authority’ on the basis of belief from their personal knowledge or information provided by any another person or from any article, document or any other thing which may provide any information of an offence under the Act. This thus increases the power in the hands of the police for arrest. Especially the element of ‘personal knowledge’, has to be considered because it is a subjective thing and may vary from person to person.

The requirement in the Cr.P.C is that ‘the police officer arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested’ (S.50), this is done away within the UAPA. Here, all the arresting police officer needs to do is to let the accused know of his crime ‘as soon as maybe’.[2]

1. Pre-charge detention- Under the UAPA, all offences, including the most minor ones, carry ninety-day detention. Adding to this the provision S. 43 D (2) (b), that detention can be extended by another ninety days.[3] It is an established fact that police custody entails immense mental suffering and physical torture. By permitting unrestricted police custody, the UAPA gags the accused prevents them from stating anything that may be inconvenient for the police or the government and punishes a person with an extended prison sentence without a fair trial. Also, there is a solemn duty on the judges, considering the issues pertaining to pre-charge detention and they should asses the evidences available rather than merely seeing the investigation progresses.There is no doubt that the period of detention permitted via the Act of 180 days in much more in comparison to other countries. The UK Terrorism Act permits 28-day judicially-authorised pre-charge detention.[4] In the United States, pre-charge detention is limited to 48 hours[5]. This is basically because nowhere is it considered reasonable to hold people in the custody without any proper trial as it ruins the family life of the individual along with the freedom to move. Internationally, it is argued that holding people without charge for lengthy periods, based on the assumption that evidence will be found to prove their guilt, is a disproportionate violation of the right to liberty and presumption of innocence.[6]
2. Bail Application- The UAPA denies an accused person bail if the court believes that, based on the evidence so far, the accusations against him/ her are prima facie true.[7] It is technically very abrupt and hard to digest the fact that the guilt or the innocence of the accused is assessed at the bail hearing itself. The purpose of a bail hearing is to determine whether the accused will abscond or commit any offences while on bail. At this early stage of proceedings, it is highly unlikely that the prosecution will have adequate evidence to prove that the accused is not innocent and mere perusal of the case diary or report under Sec 173 CrPC, which cannot be considered reasonable for believing that the accusations against such person is prima facie true. Therefore a bail application can be kept hanging forever if the public prosecutor fails to attend the court, and the case diary whose contents are to be relied upon to assess prima facie truth is a collection of a number of statements, many of which are so blatantly false that they fail to even appear in the charge sheet.The assumption of innocence is a fundamental plank on which Indian jurisprudence is based, and is most clearly seen in the general rule that granting bail is the norm and its refusal, an exception. But, the provisions of the UAPA arm the government to effectively silence and put behind bars indefinitely any person it finds politically undesirable.
3. Presumption of innocence and burden of proof- ". The right to a fair trial is protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which India is a party. Article 14 emphasis on the protection of a number of rights keeping in mind the concept of fair trial. These include the right to silence, the presumption of innocence among others. The burden of proving guilt is placed on the prosecution, which must prove guilt be beyond a reasonable doubt. Under the UAPA this presumption is denied to the accused. As mentioned in the Act, if Arms, explosives, fingerprints or any other "definitive evidence" is found at the crime scene and is linked to the accused, the court at the very outset has the power to presume that the accused in guilty and has committed the offence.
4. Power over Assets, Financial Resources, and Freedom of Movement- Under section 51A of the Act, the Central Government has the power to "freeze, seize, attach" and prohibit the use of "funds, financial assets or economic resources" of individuals "engaged in or suspected to be engaged in terrorism." This power is again excessively broad. This provision essentially empowers the Indian government to exercise control over the finances or movements of an individual on the basis of mere suspicion, which is a subjective standard of proof. Thus anyone could be targeted if the government had an interest in freezing their assets or preventing their entry into India, and the accused would have a difficult time disapproving the same.
5. Sunset Clause- The UK’s Joint Committee on Human Rights has recommended: "all terrorism legislation should have a life limited to five years maximum, and require renewal by primary legislation not ministerial order".[8] The UAPA does not have any sunset clause, thereby making it a permanent piece of the legislation and no scope of review of the functioning of the law. Previous Indian terrorist legislation had a sunset clause, with TADA being in force for eight years,[9] and POTA being in force for three years.[10] Another major cause of concern is the fact that the UAPA Act does not have any sunset clause and it is this sunset clause that is seems to act as a check on any legislation which is otherwise outside the scrutiny of other organs of the government.

[1] Ravi Nair, “The UAPA: Repeating Past Mistakes”, Economic and Political Weekly, Vol. 44, No. 4, Jan 2009, pp 10-14.

[2] Sec 43B Procedure for arrest, seizure, etc- (1) Any officer arresting a person under section 43A shall, as soon as may be, inform him of the grounds of such arrest.

[3] S. 43 D (2) (b)- If it is not possible to complete the investigation in 90 days, the Court may if it is satisfied with the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days.

[4] Terrorism Act 2006 (UK) http://www.opsi.gov. uk/acts/acts2oo6/ukpga_2oo6oon_e

[5] Jyoti Chorge v. State of Maharashtra, 2013BomCR (Cri) 186.

[6] Fair Trials International, "Response to the Home Office Discussion Paper on Options for Pre-Charge Detention in Terrorist Cases",

http://www.fairtrials.net/index.php/campaigns/article/responsetothehomeofficediscussionpaperonoptionsforprecharge.

[7] Sec 43D(5)-Provided that the accused person shall not be released on bail or on his own bond if the Court, on perusal of the case diary or the report made under sec 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusations against such person is prima facie true.

[8] House of Lords, House of Commons, Joint Committee on Human Rights, "Counterterrorism Policy and Human Rights: Prosecution and Pre Charge Detention" (24th report, Session 2005-06).

http://www.publications.parliament.uk/pa/ jt2oo5o6/jtselect/jtrights/24o.pdf

[9]"Terrorist and Disruptive Activities (Prevention) Act 1987" (India) http://www.unhcr.org/ref world/publisher,NATLEGBOD,,IND,3ae6b58i8,o. html.

[10] "Prevention of Terrorism Act (POTA) 2002" (India) http://www.commonlii.org/in/legis/num_ act/pota2oo2294

[Profile of the Author-Priyanka Jaiswal, 4th Year, National University of Study and Research in Law, Ranchi.]