A Brief analysis of Anti Terror of Legislation (UAPA)

ABSTRACT

The security of the nation is every government’s foremost concern. India being the most affected country by terrorism focuses more on security laws. From the Indian Parliament Attack 2001, Mumbai Attack 2008, URI Attack 2016, to Pulwama Attack 2019 and many more India has faced a serious threat to its integrity. Meanwhile, the government being more focused on the security gives the seal of approval to National Security Laws which govern the provisions of terrorists’ activities. And if we talk about India’s security laws, they are not confined to one or two laws. There is a series of laws that were passed with the main objective to safeguard national security and national interest. Unlawful Activities Prevention Act (UAPA) is also one of the anti-terror legislation which ultimately turned out to be anti-human rights legislation.

KEYWORDS

National Security Laws, Unlawful Activities Prevention Act, UAPA, Anti-Terror Legislation, Human Rights, Fundamental Rights, Terrorism, Right to Bail, National Integration Council, Constitution of India

NATIONAL SECURITY LAWS IN INDIA

In the year 1947 immediately after the independence, to secure and protect the rights of the citizens we were drafting The Constitution of India. At the same time, we were enacting one such powerful law which was demolishing the rights of the citizens’ i.e. Preventive Detention act, 1950 (PDA) which remained in force till 1969.

Under the preventive detention act government could detain individuals without any charge for 1 year. The main aim of the Preventive detention act was to control the violence and displacement which occurred due to partition. This was temporary legislation as it contained a sunset clause which means it was enacted for a specific purpose and once the objective is achieved these laws lapse.

Within two years after the preventive detention act lapsed, the Maintenance of internal security act, 1971(MISA) was enacted which remained in force until 1977. The act was enacted to detain persons who were opposing the government during the time of emergency. The majority powers of the preventive detention act were incorporated into MISA. The purpose of MISA was to impose more restrictions on persons detained under this act.

After preventive detention and before maintenance of internal security another act was enacted in the year 1958 which is in force to date. Armed forces special powers act, 1958 (AFSPA). Due to the separatist movement in Nagaland and increasing violence in northeastern states this act was enacted. Provisions of this act give power to the government to declare any area as a disturbed area once the area is declared as a disturbed area; the act gives special powers to armed forces to maintain public order in such a disturbed area.

In 1980 National Security Act (NSA) was enacted which is a reflection of preventive detention and maintenance of internal security. Recently in April, during the nation-wise lockdown due to coronavirus 4 people in Indore were booked under this act for using force against health workers. National Security Act gives power to the state or central government to detain any person to safeguard national security and public order. The Maximum period for confinement under this act is 12 months. Basic rights such as the right to be informed and the right to legal aid will not be available to persons charged under NSA.

To control separatist activities and especially terrorist activities in Punjab, the Terrorist, and Disruptive Activities Act 1985 (TADA) was enacted but it got repealed in the year 1995 by using its sunset clause. This act was the overriding Constitution as well as the criminal procedure code. Under TADA new offences were created, powers of police were increased and safeguards of arrested persons were reduced and due to this abuse and torture cases were increasing.

Two decades ago as a result of the Kandahar hijack and parliament attack, to strengthen the anti-terror laws of the country Prevention of Terrorism Act, 2001 (POTA) was enacted. Under the Prevention of Terrorism, Act any suspected could be detained for 180 days. The problem arose when the objectives and loopholes of POTA were the same as of TADA. Due to the wide-scale misuse of POTA, it was repealed in the year 2004 by using its sunset clause.

Another major anti-terror legislation Unlawful Activities Prevention Act (UAPA) was enacted in the year 1967 after PDA and AFSPA but before MISA, NSA, TADA and, POTA.

BACKGROUND OF UAPA

The time period from 1962 to 1975 is unforgettable because of the India china war of 1962, India Pakistan war of 1971, and the imposition of emergency on the grounds of internal disturbance in 1975. Apart from these three major lime lights, a number of problems were emerging during this phase.

Do you have any idea about the founder of the political party- Dravida Munnetra Kazhagam? Who renamed Madras to Tamil Nadu? Well, the answer to both the questions is CN Annadurai who has also served as a Chief Minister of Tamil Nadu. In the year 1962, he proposed a separate Tamil country in his Rajya Sabha speech.  Later due to the 1962 Indo-china war, he let go of his demand for a separate Tamil country.

Now think of the central government’s position. On one hand, there is external aggression which resulted in war with China, and on the other hand, there was an internal disturbance that gave rise to a demand for a separate Tamil country. It was a complete panic situation. At that time central government was in a dilemma that though we had emergency provision under Article 352 to deal with the war situation but to deal with the domestic crises it was very important to curtail the freedoms granted to the citizens. This was the major reason which resulted in the enactment of the Unlawful Activities Prevention Act of 1967 (UAPA). The act came into force during the ongoing period of emergency.

ANTI TERROR LEGISLATION

In this article let us try to understand the Unlawful Activities Prevention Act 1967. How did the UAPA act was passed? What was the motive behind the act? What was the unlawful activities prevention (amendment) act 2019? What are the loopholes of the amendment act?

A committee for national integration and regionalization was set up by the National integration council. On the recommendation of this committee, the Constitutional 16th amendment act was passed by the parliament. This amendment was the central government’s move to restrict the freedoms of the citizens to handle domestic crises. The constitutional 16th amendment act imposed reasonable restrictions on three fundamental rights which were freedom of speech and expression, freedom to assemble peacefully without arms, and the right to form association or unions. The UAPA act is an anti-terror legislation and the enforcement body of this act is the National investigation agency (NIA) which is India’s central counterterrorism agency.

UAPA act mainly deals with unlawful activities. Now, what does unlawful activity mean? So, unlawful activity means any action taken by any organization or an individual who intends to bring cession or results into separation or which disrupts or questions the sovereignty and territorial integrity of India.

Now 2004 is an important year as in that year an important UAPA amendment act was introduced. Parliament through the 2004 amendment in the UAPA act introduced some dedicated chapters to punish terrorist activities and most of the provisions which were earlier governed under POTA were inserted.

Due to rapid change in the technique and pattern of terrorism, the UAPA 1976 is amended several times and the most recent amendment is the amendment act of 2019.

ANALYSIS OF UAPA AMENDMENT OF 2019

While passing the 2019 amendment act the opposition and civil liberties raised a strong objection that there are high chances of this act being misused by the one who is in the power. The act of 2019 directly gives power to the government that they can curb, or monitor any type of dissent. The 2019 UAPA amendment was revolving around one question which was “who can do terrorism?” or “who can be designated as a terrorist?”

Before the year 2019, the unlawful activities prevention act was only applicable to organizations but after the 2019 amendment, individuals were also included in the scope of this act and all these changes will appear in chapter-6 (section 35 & 36) of the UAPA Act. Thus, the recent amendment has given the power to the central government to designate an individual or an organization as terrorist if: – They participate or commit acts of terrorism, prepares or promotes terrorism, or are otherwise involved in the activities of terrorism. These were the grounds on which individuals and organizations were declared as terrorists. This amendment was necessary because it was seen that whenever an organization was declared as the terrorist organization by the central government, the members of such an organization either start the formation of new organizations or begin to function individually.

The second change introduced by this amendment was in detention provisions. If we talk about criminal law in India then provision for a period of detention is covered under section 167 of the criminal procedure code which prescribes a maximum period of detention up to 90 days and after such period right to bail arises. The most frightening provision of the 2019 amendment act is under section 43-D of the UAPA Act which states that if the investigation is not completed within a stipulated time frame a person can be detained for a period of 180 days without even filing of charge sheet and such period of 180 days can be extended further and till that period his right to bail would not arise.

The third major change of the amendment was the insertion of the 4th schedule to the act. As the UAPA act gives power to the government to declare anyone as a terrorist, the government can add the name of the individual in the 4th schedule but there is no as such recognized due process of adding the name of an individual to the 4th schedule. The individual whose name has been added is provided with the remedy that within a period of 45 days he can make an appeal to the government that his name should be removed from the 4th schedule and to act upon such appeal a review committee will be set up with a retired/sitting judge as its head along with 3 other members.

RECENT ARRESTS MADE UNDER UAPA

  • The first arrest under the amended act was on December 17, 2019, when Assam based anti-corruption and right to information activist Akhil Gogoi was booked for sedition charges along with the intention to cause riot against national integration, criminal conspiracy, and formation of unlawful association under UAPA.
  • On April 11, 2020, Jamia Milia Islamia students Meeran Haider and Safoora Zargar were booked by Delhi police under UAPA for North East Delhi riots of February.
  • On April 20, 2020, Masrat Zahra a photojournalist was booked by Jammu and Kashmir police under section 13 of  UAPA along with section 505 Indian Penal Code.
  • The most recent i.e. on September 13, 2020, Umar Khalid, an activist was booked by Delhi Police for actively participating in an organization formed for the Delhi riots of February. He was also booked for sedition charges along with murder and attempt to murder charges with the other 18 sections of the Indian Penal Code.

CRITICISM

The majority of national security laws passed are called necessary evil because apart from these laws being necessary for security, they contain unregulated and unchecked powers that curtail or negatively affect citizen’s civil rights. The amendment act of 2019 discussed above was introduced to curtail the terrorist activities and to protect the sovereignty and integrity of the nation but does anyone have an idea about how many loopholes are there in the amendment itself? The very first is that once a person is booked under UAPA he will have to spend 180 days’ time period in jail only after that he will be able to file a bail application. Secondly, if he chooses to appeal he will have to appeal to the same authority who in the first place has declared him as a terrorist. And if an individual has been declared as a terrorist and his name has been added to the 4th schedule he will be left without any right because declaring an individual as a terrorist means curbing all his civil rights and he will be left with no scope or opportunity.

Well, the main rationale of the government behind this amendment was to protect rights, give security, and a safe environment to its citizens. But in a country where human rights are given the utmost importance, is taking away civil rights to provide security justifiably? UAPA’s only objective was to control terrorism, but recently it is being used as a tool to frighten the citizens who oppose the government policies.

Author: Vrinda Mishra, Bharti Vidhyapeeth Deemed University, Pune

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