The credibility of UAPA in India
UAPA or the Unlawful Activities (Prevention) Act is an Indian law enacted to prevent unlawful activities and associations in India to deal with activities that are against the integrity and sovereignty of the country for which it is also known as the Anti-terror law passed in 1967 during the reign of the then Prime Minister Indira Gandhi.
The sixteenth amendment (constitution Act, 1963) was enacted to empower the parliament to impose reasonable restrictions on the freedom of speech and expression, the right to assemble peacefully and without arms, and the right to form associations or unions by law to safeguard the interest of sovereignty and integrity of the country and to identify associations that would indulge in unlawful activities and tried them as per the tribunal terms of CrPC (Code of Criminal Procedure) and impose a sentence of imprisonment for three, seven, or ten years as punishment for a such illegal act.
Powers are entitled to the Director General of the National Investigation Agency under section 25 of the Act to seize property from proceeds of terrorism and investigate cases under section 43 by higher position officials and also comprises a review committee.
Over the years, the unchecked powers of UAPA have made it a lethal weapon to quell dissent and legitimize sinister motives. Some of the unignorably questions of the time are the applicability and working of UAPA as deemed to fit in the constitutional framework, its adversarial trial system, and the legality of pre-conditions for bail as decided by the honorable Supreme Court.
These are irksome and a source of abuse used and exercised by successive governments under the clinched procedure as established by the law of the land. Due to the amendments brought into UAPA, it crawled far away from being a preventive law to becoming a substantive law giving birth to new offenses and punishments without departing from the principles of the constitution or criminal jurisprudence.
However, the insertion of resolution no: 1373/2001 included terrorist activities in the domestic law of the nation through the Amendment Act of 2008 based on which procedural law was changed. As per section 43E, the court shall presume that the accused had committed the crime unless the contrary is proved. The defense just creates the ground for reasonable doubt and pits against the prosecution whereas the accused is liable for the burden of proof.
Section 20(3) of the Indian Constitution indicates the rights of an accused to remain silent and Article 11 of UDHR states that whoever is charged with a penal offense shall be presumed innocent until proven guilty in the trial and that such person also has all the rights to his defense. Therefore, the resolutions cannot be read with the domestic law when the protocol is the basic principle of human rights protection, and citing such UN Resolutions have no relevance to our procedural system.
Recently, two cases have drawn attention to the unchecked omnibus UAPA- Muhammad Manan Dar who is a young Kashmiri photojournalist was arrested and imprisoned for documenting the lives of Kashmiris (2021) and the second incident was the arrest of Siddhique Kappan, a journalist charged with involvement to ignite riot in Hathras, U.P. the courts granted bail to both of them later.
The two anti-terror laws- the Terrorist and Disruptive Activities (Prevention) Act (TADA),1985, and the Prevention of Terrorism Act (POTA), 2002 both are a matter of intense political debate as the modifications brought into those Acts not only expanded beyond its objective but is proving to be oppressive and suppressive than ever.
Petitions are pending before the honorable Supreme Court where the validity of the amendment of 2019 has been challenged through which the government can now consider an individual as a terrorist. The UAPA law is supposed to be applied in rare instances but the 2022 report of PUCL stated that between 2015-2020 less than 3 percent of arrests made under the act results in conviction and out of 4690 detained people only 1080 received bail. These are blots on our democracy and their powers remain unchecked and growing .
2019 statistics of the National Crime Records Bureau witnessed the biggest jump in cases filed under the UAPA Act. Several prominent human rights activists like Sudha Bharadwaj, Vernon Gonsalves, Arun Ferreira, Varvara Rao, Anand Teltumde, Father Stan Swamy, and, leaders of civil society and students like Safoora Zargar, Umar Khalid, and Pinjra Tod student activist who were protesting were arrested under this Act. The amendment dishonors principles sanctioned by the country under the International Convention on Civil and Political Rights and the United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedom.
To challenge the constitutionality of the constitutional value of section 35 and section 36 as amended in 2019 of the UAPA Act, two petitions were filed, one by the Association for Civil Rights (APCR) and the other by an Indian national, Sajal Awasthi.
Section 35 empowers the government to recognize an individual as a terrorist in the fourth schedule of the act based on suspicion and without any intricate process which is obscure and unclear whereas, the execution to appeal against the label under section 36 is complicated and there is no prerequisite oral hearing of the appeal resulting in the lack of substantive and procedural process.
These sections do not provide sureties against the potential of discretionary authority and do not suffice reasonable classification tests under Article 14. The law is dogmatic and violates equality as it has no clear purpose behind the distinction between an individual and an organization. Furthermore, the principle of natural justice ‘Audi alteram partem’ is disrupted due to the absence of a fair trial.
In the case of the People’s Union for Civil Liberties vs. Union of India (2004), the court passed a decree stating that in combating terrorism if human rights are violated then it is self-defeating. These impugned sections also infringe on the right to freedom of speech because, in the pretext of preventing terrorism, they target significant speech against the government which again is a violation of the democracy of the nation. Recently several cases are popping up where the right to protest is being threatened. Concerning the CAA-NRC protest, approximately 1100 protestors were arrested and 5558 were detained under UAPA.
UAPA’s amendments are compromising the rights of the civilians by putting them in peril and threat through its action on the opposition and people raising against their rights and justice are being wrapped under the blanket of this draconian law. These actions are not only violating the rights but are also leading to violence. A line must be drawn and maintained between individual liberty and the duty of the state and to render security is a case of classic predicament .
The draconian laws like sedition and criminal defamation are adopted by the government to quell dissent and are dubiously worded and unnecessarily extensive and are misused by politicians as weapons against critics and voices raised against them by legitimizing ‘thought crimes.’ It is the responsibility of the state, judiciary, and civil society to balance constitutional freedom and the anti-terror pursuit imperative .
It clearly shows how in the name of assuring public order it is curbing several freedoms of the common people in a democratic country. It is a baby step in the direction of the authoritarian state that needs to be prevented by the judiciary to keep democracy alive and the judiciary has recently come in for a lot of flak over cases under UAPA. Retired judges of the apex court have voiced and raised their concerns regarding the new UAPA regime.
This article aims to highlight how UAPA violates human rights and to conclude, India’s democracy is in a deep crisis as the executive is keeping its dominating eye and controlling every major institution and is using draconian laws to silence the dissenting voices and eroding India’s democratic credentials. It fails to distinguish between legitimate political opposition and criminal sedition. It’s high time for India to restore its hard-earned credibility and the judiciary is the last hope to keep a check on the executive. Therefore, for the national interest govern
