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Source: This post on issues related to UAPA is created based on the article “An anti-terror law and its interference with liberty”, published in The Hindu on 13th December 2023.
Syllabus Topic: GS Paper 2 – Governance – Criminal Justice System of India
News: The article focuses on a judgment by the Jammu and Kashmir High Court which cleared the way for bail to journalist Fahad Shah. He was facing charges under various laws, including the Unlawful Activities (Prevention) Act (UAPA) and the Foreign Contribution (Regulation) Act (FCRA).
The High Court, in its judgment, partially set aside the charges. It found insufficient grounds for charging him under UAPA except for Section 13, and under the FCRA.
This case highlights the broader issue of how UAPA, India’s primary anti-terror statute, is applied. It emphasizes the need for careful interpretation and application of UAPA in matters of personal liberty.
What is UAPA and what are its sections 13 and 18?
UAPA aims at effective prevention of unlawful activities and associations in India.
Section 43-D (5) of UAPA, places an embargo on courts from granting bail if they find that the police materials establish the accusations as ‘prime facie true’.
Section 18 of the UAPA provides for the Punishment for conspiracy. It also includes punishment for any act preparatory to the commission of a terrorist act. This section has been used to justify the newspaper article as the preparatory material in the present case.
Section 13 of the UAPA also covers the activity which advocates, abets, advises or incites the commission of any unlawful activity.
What were the observations of the High Court?
Defamation as terrorism: treating allegations of defaming the country as terrorism will create a new category of offence. It will have wider implications for criminal laws.
Differentiation in implementation of UAPA: The Court highlighted the importance of judicial prudence in enforcing anti-terror laws. It emphasized that liberty should not be compromised without evidence of ‘clear and present danger’.
Issue of bail under UAPA: The Court critiqued the procedural aspects of UAPA, particularly Section 43-D (5). It argued that the section was meant to prevent the easy release of persons, who are actual threat, like a bomber and not the individuals, who don’t have any direct link the act.
What are issues highlighted by this case associated with UAPA?
Arrests of individuals unconnected to actual incidents of violence, or individuals who are not directly connected with such incidents. For example, in the present case, government argued that publication of the article was an act of terror, as it sought to harm ‘property’ in the form of India’s reputation.
Read the last article on this topic for more information.
There is a lack of discussion on compensation or state accountability for wrongful arrest in the judgment.
