Supreme Court must use cases pending against UAPA to examine its scope

Source– The post is based on the article “Supreme Court must use cases pending against UAPA to examine its scope” published in The Indian Express on 17th February 2023.

Syllabus: GS3- Security

Relevance: Measures adopted by government to deal with terrorism

News- In recent times, arbitrary use of India’s omnibus anti-terror law, the Unlawful Activities (Prevention) Act (UAPA), 1967 has drawn attention.

What are the prominent anti-terror laws that have been used by the Indian government against terror activities?

Indian anti-terror laws include the Disruptive Activities (Prevention) Act passed in 1985, and the Prevention of Terrorism Act (POTA) passed in 2002.

In 2004, started using UAPA against the terror activities. The government used UAPA to declare illegal any organization questioning India’s sovereignty.

Since then, the law has undergone three significant revisions — 2008, 2013 and 2019. Each modification has made it more stringent.

What are the problems associated with the legal approach adopted by the Indian government against terrorism?

The government has prosecuted political dissidents under anti-terror laws. But on the global stage, in 2022, India objected to the inclusion of “right-wing extremism” in the definition of terrorism in the UNGA Global Counter-Terrorism Strategy.

There appears to be a significant difference between what India considers to be terrorism and what other democracies like the UK, US do. But Indian anti-terror measures were inspired by legislation from these countries and United Nations Security Council resolutions.

TADA and POTA were known for their lengthy pretrial detention, in-custody torture, false prosecutions, and forced confessions. Minority community members paid a heavy price.

What has been the stand of SC on anti-terror legislations?

The Supreme Court had evolved many safeguards for application of TADA and POTA.

In Shaheen Welfare Association v Union of India, 1996; it categorized TADA detainees into four different brackets to grant bail.

In Kartar Singh v State of Punjab, 1994; SC ordered setting up state and central review committees to prevent the misuse of TADA.

But in the UAPA era, the court has been unable to provide adequate safeguards against arbitrary arrests, malicious prosecutions and long pretrial detentions. The Court’s ruling in NIA v Zahoor Ahmad Shah Watali (2020) has made the grant of bail almost impossible.

What are issues related to UAPA?

Terms like “terrorist act”, “unlawful activity”, “advocacy”, “conspiracy”, “likely to threaten”, and “likely to strike terror” have been framed vaguely. These seem to give agencies arbitrary powers.

There is a lack of standards for prosecution. Instead, the act allows for a blind reliance on police cases. The terms like “terrorist act” are subjective and difficult to define.

UAPA has one of the worst records for prosecution success. According to a PUCL report in 2022, less than 3% of arrests made under the UAPA resulted in convictions between 2015 and 2020. Only 1,080 of the 4,690 people detained under the UAPA between 2018 and 2020 received bail.

What is the way forward for reforming UAPA?

The debate on UAPA needs to be taken beyond the validity of a few select provisions. The law’s purpose and scope need careful examination. The main question is proportionality which is a fundamental principle of our Constitution.

The Court must determine whether the breadth and consequences of UAPA are substantially out of proportion to its declared goals.

There is a need to have a law that effectively combat terrorism and still conform to the imperatives of our Constitution. The ability to identify, neutralize, and bring terrorists to justice should be a priority.

However, the authorities must be subject to stringent, clear controls and impartial oversight.