This Article is written by Ms. Lenna Joshy, studying BBA.LL.B. from Government Law College, Thrissur.
The Unlawful Activities Prevention Act, 1967 commonly known as UAPA , is India’s Anti-Terrorism Law. The objective of this law is to penalise unlawful and terrorist activities which pose a threat to the integrity and sovereignty of India. Through this Act Indian law aimed at the effective prevention of certain unlawful activities of individuals and associations in India.
Origin of UAPA
The Unlawful Activities Prevention Act was passed in 1967 on the recommendation of the National Integration Council, after being tabled and withdrawn twice. The legislation came up within the backdrop of the 1962 China and 1965 Pakistan wars and in response to secessionist demands made by regional groups like the Dravida Munnetra Kazhagam.
This Act enabled the Government to impose ‘reasonable restrictions’ on the Fundamental Right to Association (Article 19). The executive could have declare any organization as unlawful and criminalize what is deemed as ‘unlawful activities’. Predictably, the history of the UAPA can be traced back to British India. The term “Unlawful Association” was first used in the Legal Code Amendment Act, 1908 to criminalize the Indian National Movement.
The United Progressive Alliance has amended the UAPA once in the year 2004 and second time in the year 2008, to include provisions from the sooner Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA). The ‘terrorist act’ was defined under 2004 Amendment as a criminal offence and also gave powers to the Central Government to declare organisations as “terrorist” and impose a ban against them. Section 2(o) under the aforementioned Amendment defined ‘Unlawful Activity’ which is marked with great ambivalence: it covers spoken and written words, alongside any visual representation “which causes or is intended to cause disaffection against India”. This procedurally vests the government with the power which threatens the ruling dispensation. Unjustified power of interrogation was granted to police through this Amendment.
The UAPA became India’s Anti-Terror Law after the Mumbai terror attacks in 2008. The law was further amended in 2012 and the very recent amendment was the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA.2019), which deals with expanding the definition of ‘terrorist’ to incorporate individuals under section 35 and 36 of Chapter VI of the Act.
Extent and Application of this Act
- This Act is applicable across the entire country.
- The UAPA makes liable for punishment any Indian or foreign national charged under this act, irrespective of the location of crime/offence committed.
- UAPA will be applicable to the offenders in the same manner, even if the crime is committed on foreign land, outside India.
- UAPA is applicable to citizens of India and abroad.
- Persons on ships and aircraft, registered in India, wherever they may be also under the ambit of this Act.
Definition of the ‘Unlawful Activity’ in India:
The Unlawful Activity refers to “any action taken by individual or association whether by committing any act or by words, either spoken or written, or by signs to questions, disclaims, disrupts or is intended to disrupt the territorial integrity and sovereignty of India.” This Act also prohibits the cession of a neighborhood of the territory of India or the secession of a neighborhood of the territory of India from the Union, or which provoke any individual or group of individual to bring about such cession or secession.
Amendment of UAPA , 1967
The Union Cabinet not only changed the National Investigating Agency Act of 2008 but also amended the Unlawful Activities (Prevention) Act, 1967. The Lok Sabha passed the National Investigating Agency Amendment Act, 2019 on July 15, 2019, and the Rajya Sabha passed it on 17th July 2019.
Amendments to Schedule 4 of the Unlawful Activities (Prevention) Act will allow the National Investigating Authority to declare an individual suspected to have terror links as a terrorist.
UAPA In Conflict With Other Legislation
A number of Public Interest Litigation (PIL) was failed against UAPA, 2019 in the Supreme Court to declare it unconstitutional as it violates fundamental rights of citizens. In Sajal Awasthi v. Union of India2 the petitioner’s right to dissent was curtailed and was against Article 14 (Right to Equality), 19 (Right to Freedom of Speech and Expression), and 21 (Right to Life) of the Indian Constitution. Furthermore, it does not provide any opportunity to the individual termed as a terrorist to justify his case before the arrest. The petitioner also contended that
“ Right to Reputation is an intrinsic part of [a] fundamental right to life with dignity under Article 21 of the Constitution of India and terming/tagging an individual as ‘terrorist’ even before the commencement of trial or any application of judicial mind over it, does not adhere to procedure established by law.”
In Romesh Thappar v. State of Madras3, the Court observed that:
“The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.”
In an another petition Association for Protection of Civil Rights (APCR) v. Union of India4 , it was contended that the new Section 35 allows the Centre to designate an individual as a terrorist and add his identity in Schedule 4 of the Act. While earlier only organisations could be notified as terrorist organisations. The Amendment does not specify the grounds of terming an individual as a terrorist and that “conferring of such a discretionary, unfettered and unbound powers upon the Central Government is antithesis to Article 14.”
PIL failed against UPA in SC with reference to UAPA
A petition has been filed before the Supreme Court under Article 32 of the Constitution of India, to enforce Fundamental Rights, particularly, Article 21 of the Right to Protection of life and personal liberty against Indian National Congress chief Smt. Sonia Gandhi and Mr. Rahul Gandhi, sought to bring transparency and clarity regarding the Agreement signed between the then ruling party Indian National Congress and the Communist Party of China which was also the de-facto Government of People’s Republic of China for exchanging high-level information and for cooperation between them.
The petitioner contended that the Memorandum of Understanding (MoU) provided by the two parties with the “opportunity to consult each other on important bilateral, regional and international developments”. The Agreement was signed on 7th August, 2008.
Petitioner argues that according to the Constitution of India, the Right to Information is guaranteed to each and every citizen in India then how can it be taken away by a Party especially when it is concerned with the matter of national interest?
The Indian National Congress had brought the Right to Information Act in India during its rule but they failed to be transparent in this matter which is of national importance. Thus, the petitioner seeks for a proper investigation in this matter, through an Investigation Agency (NIA) under the Unlawful Activities (Prevention) Act, 1967, or, as an alternative, by the Central Bureau of Investigation (CBI)
Issues Involved With Two Parties MoU Agreement
The UAPA is a Law that is aimed to punishing those who are involved in terrorist activities and also those activities which are indented to secession of any part of the country from the Union of India. The major question raised is that ‘whether the Nation Security could be sabotaged by an Agreement with the enemy state?
- Unlawful Activities ( Prevention) Act ,1967
- Sajal Awasthi v. Union of India WP( C) 1076/2019
- Romesh Thappar v. State of Madras AIR 1950 SC124
- Sri Indra Das v. State of Assam AIR 2007 SC 1383
- Association for Protection of Civil Rights (APCR) Union of India