On the Issues with UAPA – J&K High Court underlines that criticism of a government can’t be called a terrorist act

Source: The post on the Issues with UAPA has been created based on the article “J&K High Court underlines that criticism of a government can’t be called a terrorist act” published in “Indian Express” on 22nd November 2023.

UPSC Syllabus Topic: GS Paper 3 Internal Security – Security challenges and their management in border areas – Terrorism.

News: The article discusses the challenges associated with the UAPA and the observations of the courts in this regard.

Recently, the Jammu and Kashmir High Court granted bail to journalist Fahad Shah and quashed the charges framed against him under the Unlawful Activities (Prevention) Act, 1967.

What is the Unlawful Activities (Prevention) Act (UAPA), 1967?

UAPA aims at effective prevention of unlawful activities and associations in India.

“Unlawful activity” refers to any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by
signs or by visible representation or otherwise),—
(i) which is intended or supports, or incites to bring about the cession or the secession of a part of the territory of India from the Union.
(ii) which is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India.

The legislation grants absolute authority to the central government to label an activity as unlawful.

What are the issues with UAPA?

1. Broad and Vague Definitions: The Act’s definitions of “unlawful activities” and “terrorist acts” are broad and vague. This can potentially lead to misuse, allowing authorities to target individuals or organizations without clear criteria.
2. Violation of Civil Liberties: The Act allows for pre-charge arrest (arrest occurring prior to a formal charge being made against a suspected criminal) of suspects for a prolonged period, which violates the right to liberty and due process.
3. Misuse for Political Purposes: Critics argue that the Act has been used to target political dissenters, activists, and minorities, rather than focusing solely on combating terrorism or unlawful activities.
4. Impact on Freedom of Speech: There are concerns that the Act’s provisions regarding speeches, writings, or actions that could be interpreted as supporting unlawful activities might impinge on freedom of speech and expression.
5. Harsh Bail Conditions: The UAPA has provisions that make it difficult for people charged under the act to obtain bail, as it requires that the accused show that they are not guilty, shifting the burden of proof from the prosecution to the accused.
6. Low Conviction Rates: Less than 3% of the arrests made under UAPA between 2015 and 2020 have resulted in convictions as per the People’s Union of Civil Liberties.

What have been the judiciary’s observations?

1. Observations by the J&K High Court:
It said that an investigative agency must justify the arrest of an accused under UAPA based on a “clear and present danger of the accused to the society at large, if enlarged on bail”.
b. It rejected the argument that honour and dignity of India is a property under the anti-terror law, the destruction of which is a terrorist act. The court stated that any criticism of the central government could then be described as a terrorist act under this interpretation. This would undermine the fundamental right to freedom of speech and expression.

2. Observations by the Delhi High Court:

It had ruled that “terror activity cannot be so broadly defined as to include ordinary penal offences”.

3. Observations by the Supreme Court:

In the One Media case where an undisclosed national security consideration was cited to deny renewal of license to a Kerala news channel, the Supreme Court had highlighted the trend of the state misusing national security as a tool to deny citizens remedies that are provided under the law.

Question for practice:

The Unlawful Activities (Prevention) Act (UAPA), 1967 has become a potent tool towards undermining the rights of citizens. Discuss the challenges associated with the legislation.