Unlawful Activities (Prevention) Act

February 16, 2021 Simplified

Context:

As per the 2019 Crime in India Report compiled by the National Crime Records Bureau:

Only 2.2 % of cases registered under the Unlawful Activities (Prevention) Act between the years 2016 and 2019 ended in convictions by court.
The total number of the persons arrested and the persons convicted in the years from 2016 to 2019 under the UAPA in the country are 5,922 and 132, respectively.
In the year 2019, as many as 96 persons were arrested for sedition (Section 194A IPC) but only two were convicted and 29 persons were acquitted.

About:

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.
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.
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.

History

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:

Freedom of Speech and Expression;
Right to Assemble peaceably and without arms; and
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:

The Unlawful Activities (Prevention) Amendment Act, 1967
The Criminal Law (Amendment) Act, 1972
The Delegated Legislation Provisions (Amendment) Act, 1986
The Unlawful Activities (Prevention) Amendment Act, 2004
The Unlawful Activities (Prevention) Amendment Act, 2008
The Unlawful Activities (Prevention) Amendment Act, 2012
The Unlawful Activities (Prevention) Amendment Act, 2019

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). 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.

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.

Mechanism of the Unlawful Activities (Prevention) Amendment Act, 2019

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.
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 Police normally have 60 to 90 days to investigate a case and submit a chargesheet failing which the accused may obtain default bail.
However, under the UAPA, this pre-chargesheet time is extended to 180 days. Further, normal bail rules do not apply to an accused under 43(d)5 of the UAPA.

Criticism

While the Government claimed that Bill would give it power to probe terror attacks on India, the Opposition parties in the Lok Sabha termed it as 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. 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. 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.

As part of the K. G. Kannabiran Lectures on Law, Justice and Human Right, 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.

Source: The Hindu