Unlawful Activities Prevention Act: National Security Vs. Constitutional Rights

The Unlawful Activities (Prevention) Act, 1967 was enacted to provide for more effective prevention of certain unlawful activities of individuals and associations, and for dealing with terrorist activities, and related matters.

Key Features of the Act

• Designating Terrorist/Terrorist Organisation: Under the Act, the central government has the powers to designate an organization as a terrorist organization. The 2019 amendment has given additional powers to the government to designate individuals as terrorists.
• Approval for Seizure of Property by NIA: Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police to seize properties that may be connected with terrorism.
• If the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA would be required for seizure of such property.
• Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. It empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
• Insertion to Schedule of Treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).The 2019 amendment adds another treaty to the list. This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).

Significance and Need: Ensuring National Security

• Rise in Terrorist Threats: Increasing terrorist activities are a threat to sovereignty and integrity of the country. Threats, especially emanating from the cross border infiltration have resulted in increasing radicalism and extremism in the country, which creates the need for Laws like UAPA as terrorism cannot be treated as trivial law and order issue.
• Increase in Individual and Lone Wolf Attackers: Earlier only organisations were designated as terrorists while the individuals used to exploit this gap to circumvent the law by simply organising themselves under a different name and continue with terrorist activities.
  • For e.g., India was not able to designate Masood Azhar as a terrorist even though it lobbied for the same in the UN Security Council.
  • After recent amendments lone wolfs attackers which do not belong to any organization are also covered under the ambit of this act.
• Strengthening of Investigation Mechanism: The act has empowered officers with the rank of inspectors and above to investigate cases under the UAPA. Inspector rank officers have, over time acquired sufficient proficiency to investigate UAPA related cases. It enables quick the delivery of justice in UAPA related cases, which are reviewed by senior officers at various levels.

Issues and Concerns: Violates Constitutional Rights

• Unlimited Powers to Government: It confers the Centre with “discretionary, unfettered and unbound powers” to categorise a person as a terrorist. This is potentially dangerous because it will empower government officials to brand any person as a terrorist without following due process.
• The only remedy available to the person is to make an application to the Central Government, which will again be reviewed by a committee formed by the Government itself. The UAPA does not provide a judicial mechanism for either individuals or organisations listed as terrorists to challenge such a designation.
• Indiscriminate use of UAPA: The UAPA is largely an anti-terror law that is supposed to be applied only in rare instances. However, the experience with the UAPA over the years suggests that it is being indiscriminately used by the government — both Union and states — at varying degrees. A very low conviction rate indicates that the UAPA is indiscriminately used by the police to harass and intimidate. Between 2014 and 2020, 10,552 people were arrested and 253 were convicted under the UAPA. This means that of the 1,507 people were charged each year only 36 people were convicted.
• Against Personal Liberty of Individual: The UAPA provides police and state authorities a long window to investigate and prosecute the arrested individual, which defeats the purpose of a speedy and fair trial. While 90 days are provided for completion of the investigation, a person can be detained for upto 180 days without even filing a chargesheet which is completely against the personal liberty of an Individual. During a period of 2014-2020, at the end of each year, an average of around 85% cases were still pending.
• Attack on Reputation: Right to reputation is an intrinsic part of fundamental right to live with dignity under Article 21 of the Constitution. Tagging an individual as “terrorist” even before the commencement of trial amounts to violation of ‘procedure established by law’. Instead of preserving the dignity of an individual, the UAPA encroaches upon it. Individual may face harassments in the form of social boycott, expulsion from employment, hounding by media and perhaps attack from the self-proclaimed vigilante groups.
• Potential of Misuse: The vaguely defined terms like terrorist propaganda, terrorist literature etc. can be misused by the authority and prove to be a recipe for abuse, and for political and social persecution by political executive by branding individuals as terrorists. For instance, there are instances of invoking UAPA against people for merely possessing revolutionary literature, human rights activists, writers and journalists.
• Burden of Proof Shifted: The law could now be used by the government to bring a person into disrepute. In the case of UAPA, the entire burden to prove innocence rests on the accused.
• Restriction on Dissent: The right to dissent is a part and parcel of fundamental right to free speech and expression and therefore, cannot be abridged in any circumstances except for those mentioned in Article 19 (2). This act empowers the government to impose indirect restriction on right of dissent which is detrimental for the society. The UAPA law is being used for curbing the fundamental rights of the citizens of India which makes it more draconian.