UAPA and the recent judgments – Explained, pointwise

Introduction

In the backdrop of the Tripura violence, the police used the provisions under the UAPA (Unlawful Activities (Prevention) Act of 1967) to charge journalists and 100-odd social media users for posts on communal violence.

What are the other recent cases filed under UAPA?

Kashmir: Recently, students in Kashmir were booked under the UAPA for online expressions of support for India’s opponents in a cricket match.

A case of Father Stan Swamy: He was arrested as a suspect under UAPA in the Bhima-Koregaon case. Despite his attempts, he was not released on bail.

Kerala: A case has been filed against the person (Thwaha Faisal) under UAPA for alleged association with the banned CPI (Maoist).

About Unlawful Activities (Prevention) Act,1967

It is primarily an anti-terror law aimed at effective prevention of certain unlawful activities of individuals and associations. Its main objective is to empower the state for dealing with activities directed against the integrity and sovereignty of India.

The Act assigns absolute power to the Central Government. It can declare an activity as unlawful, by way of an Official Gazette. Under the act, both Indian and foreign nationals can be charged. The act has the death penalty and life imprisonment as the highest punishments.

Under section-43D, police are empowered to detain the accused in police custody for 30 days and in judicial custody for a period of 180 days without the charge sheet. This duration can be extended further after information to the court.

About the recent amendment and the changes introduced

So far the Act has been amended six times and the last one being 2019. The significant changes under the 2019 amendment are

1. Allowed the State to designate individuals as ‘terrorist’, 2. Empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is under investigation by the agency, 3. Reversed the innocent until proven guilty principle.

What are the challenges in the UAPA?

The UAPA was formulated to strengthen the security framework of the country and preserve the unity and integrity of the nation. However, it has currently become a tool to curb free speech and political dissent in our country.

1. The definition of terrorism in Section 15 of UAPA is indefinite, as it covers almost every kind of violent act. 2. Against Fundamental Rights: UAPA is against Articles 14, 19 and 21, representing the Right to Equality, Freedom of Speech and Expressions, and Right to Life, respectively. 3. Issue of bail: There are instances where the accused had spent over one year in jail without trial. Further, the accused does not have the option of anticipatory bail. It presumes the accused is guilty solely on the basis of the evidence collected. 4. Low conviction rate: The cases filed under the UAPA have been rising for a few years. But, on the other hand, the conviction rate is going down. It was merely 2.2% between 2016-19. 5. Data Deficit: The NCRB does not maintain UAPA data on the basis of religion, race, caste or gender. This creates a barrier in identifying the vulnerable groups who face greater abuse under the act. 6. Under section-44, secret witnesses are allowed during the case proceedings.

What are the recent observations by Judiciary regarding UAPA?

Recently, the Judiciary held three important judgements regarding stringent provisions under UAPA.

Thwaha Faisal v Union of India case, 2021  Recently, SC granted bail to Thwaha Faisal and held that 1. Vague allegations of conspiracy, based on the general behaviour of the accused, or of the materials that might have been recovered from them, is not enough to file a charge sheet under UAPA, 2. Mere support to a terrorist organisation as a member or otherwise is insufficient to attract an offence under the UAPA. 

Asif Iqbal Tanha v State of NCT of Delhi, 2021: The court held that 1. Exceptionally stringent provisions of the UAPA are meant to apply only to exceptional cases, and not as substitutes for ordinary penal law, 2. There should be a distinction between the state of exception and the state of normalcy, 3. criticised the state’s tendency to confuse “protest” for “terrorist activity”, 4. The word “terrorism” has to be given a specific meaning that distinguishes it from offences that are dealt with under ordinary law.

Iqbal Ahmed Kabir Ahmed v State of Maharashtra, 2021: 1. The allegations in the chargesheet must be individualised, factual, and particularistic. 2. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.

What can be done to improve the UAPA?

1. Supreme Court intervention: The court has to intervene with a set of guidelines for invocation of UAPA. 2. Incorporate the necessary changes: The government has to incorporate recent Judicial verdicts to make the law only for the intended purpose and not for political dissent or anything else, 3. Better governance: All detentions under the Act should have higher levels of clearance, with a record kept of the rationale applied (for future scrutiny), 4. Deploying educational modules: deploying relevant models on the basic principles of justice at every level of law-and-order will reduce misuse of UAPA.

UAPA gives unfettered powers to the government and leaves a person vulnerable in front of the government. However, given the evolving nature of crime and terrorist activities, it is not possible to completely abandon the law. Hence, the UAPA has to be amended to balance the security interests with fundamental freedoms.