The Unlawful Activities (Prevention) Amendment Act, 2019: A qualitative study of the violation of individual’s fundamental rights.

 

On 19 June 2021, the supreme court issued a notice against the Delhi High court order granting bail to student activist Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha who had been charged under chapter IV of the UAPA under section 15, 17,and 18[i]in a Northeast Delhi riots conspiracy case[ii].Earlier on 15th June 2021, a bench compromising justices Sidharth Mridul and Anup Jairam Bhambhani granted bail to these 3 accused. On 23 June 2021, another activist named Akhil Gogoi was given clean chit who was also booked under UAPA.

 

UAPA



So, what is UAPA act? Who is a terrorist under UAPA? Whether one can challenge the constitutional validity of UAPA? Is it violate article 14, article 19, and article 21 of the Indian constitution? Let’s have a look at this act.

The Unlawful Activities (Prevention)Act, 1967

The unlawful Activities (Prevention) Act, 1967 is an enhancement of the Terrorist and Disruptive Activities (Prevention) Act which is commonly known as TADA (Repealed in 1995), and the Prevention of Terrorism Act which is commonly known as POTA (Repealed in 2004).  The act was passed in 1967 and amendments were brought in under the successive united progressive alliance (UPA) government in 2004, 2008, 2013, and 2019.

The act aims to establish a special procedure to handle terrorist activities and other unlawful activities of associations in India that intend to disrupt the territorial integrity and sovereignty of India.

Definition of terrorist

This act was functioning well until theUnlawful Activities (Prevention) Amendment Act, 2019 was given green a signal on 8 august 2019.This amendment mainly focused on sections 35, 36, and 25 of thisact. This amendment expanded the definition of “terrorist” to include individuals under sections 35 and 36 of UAPA. Further, the government is empowered to add an individual’s identity in schedule IV of the Act.

The act gives overboard and ambiguous definition of a “terrorist act” which may include the death of, or injuries to any person or property, any attempt to overawe any public functionary by means of criminal force, and any act to compel the government or any person to do or abstain from doing any act, etc. Such act also includes any act that is “likely to threaten” or “likely to strike terror in people”.

Don’t you think that this definition gives unbridled power to the government to brand any ordinary citizen or activist a terrorist? Don’t get surprised if you encounter the news that       Indiaranks 142nd on the World Press Freedom Index. You are well aware of the working of the Media and activist group. They are the fourth pillar of our democratic India.  Some protests that are lawful for some citizens may be labelled as terrorist activities by the government. But who can be labelled as a terrorist? What is a Terrorist Act?

In 2006, the Special Rapporteur said that to call an offence a “terrorist act”, three elements must be cumulatively present:

a)      the means used must be deadly;

b)      the intent behind the act must be to cause fear amongst the population or to compel a government or international organisation to do or refrain from doing something;

c)      the aim must be to further an ideological goal.

Perfect definition never exists but the definition given by Special Rapporteur somehow seems to be perfect. Regrettably, the definition given under the UAPA gives a wide interpretation to the meaning of terrorism, terrorist and terrorist acts. As a result, people are being prosecuted without any evidence of any alleged. Most prosecutions are based on the inferences drawn from speeches.

The constitutional validity of the Unlawful Activities (Prevention) Amendment Act, 2019

Two petitions have been filed against the UAPA Amendment Act – Sajal Awasthi v. union of India[iii] and Association for protection of civil Rights v. Union of India.[iv] Both petitioners challenged the amendment Act as being violative of Article 14 (right to equality), Article 19 (free speech), and Article 21 (right to life and personal liberty) of the Indian Constitution.

Awasthi labelled this provision as “manifestly arbitrary”[v]the reason being the act does not provide any detailed grounds based on which one can be categorised as a terrorist.

Do you know that the Jammu and Kashmir police invoked UAPA against journalist Masrat Zahra under Section 13 for ‘uploading anti-national posts on Facebook with criminal intentions to induce the youth and glorifying anti-national activities?’ Police said that the post from Zahra could “provoke the public to disturb law and order” and no further explanation was given. Don’t you think that the government is targeting journalists and human right defender on vague grounds?

Sajal Awasthi also emphasised that the act goes against the right to dissent. It was contended that UAPA is being used to suppress dissent through intimidation and harassment that can threaten the very existence of public debate and freedom of speech thus criminalising the performance of civil liberty. As well as he stated that the right to reputation is also coerced by this amendment act as this is the integral part of the right to life.

One can say that UAPA is a piece of “security legislation” that allows the government to arrest the individual that might commit a crime but it is problematic too as it violates the fundamental right of citizens.

Issues with definition and Act

According to National Crime Records Bureau data, of the 1226 cases under UAPA filed in 2019, chargesheets were filed only in 9% of the cases and the conviction rate in 2019 was a mere 29.2%.[vi] What does it mean? It means that only 31 people out of the total of 1226 are convicted. Others were either not granted bail or acquitted. Besides, under UAPA, a person shall not be granted bail if the court believes that acquisition against such person is prima facie true.

After acquittal, the individuals concerned will have lost his/her reputation and such allegations are also detrimental to their career and livelihood. As being labelled as a terrorist is one of the worst nightmares for an innocent individual. Right to reputation is an interim part of Article 21 (right to life and personal liberty) of the Indian Constitution.

With this short example, one can understand the violation of one of the rights of citizens as well as foreign individuals.

Based on the above explanation. Let’s understand the various reason:

·         It does not allow dissent. It criminalizes mere thoughts and political protests that cause “dissatisfaction” within the state. Do you also think UAPA majorly targetsfundamental rights?

·         Sometimes it is simply used to bypass fundamental rights.

·         Government has broad discretionary power to define terrorist acts and also authorise the government to conduct in-camera proceedings and use secret witnesses.

Conclusion

The main aim of the Unlawful Activities (Prevention) Amendment Act, 2019was to facilitate speedy investigation and prosecution of terrorists. A strict law with that show ‘zero tolerance’ toward terrorism is need of an hour but the misuse of law for political purpose is detrimental to the fundamental rights of the citizens.

Thus, the government should be mindful of its obligations to preserve fundamental rights while enacting legislation on the subject. Any such amendment should not violate the mandate of the universal declaration of human rights and the international covenant on civil and political rights. However, the Unlawful Activities (Prevention) Amendment Act, 2019 is one of the right decisions taken by our government but it should be implemented without political interference.

 

 

Written by Rishita Pandey

Student at ICFAI University

 


[i]S. 15 engrafts the offence of 'terrorist act', S. 17 lays-down the punishment for raising funds for committing a terrorist act and S. 18 engrafts theoffence of 'punishment for conspiracy

[v]The doctrine of manifest arbitrariness, in brief, states that if a law is made without an adequate governing principle and is excessive or disproportionate in nature, the same is manifestly arbitrary and thus antithetical to the right to equality.

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