The Unlawful Activities (Prevention) Act, 1967, is intended to outlaw and punish unlawful and terrorist activity which poses a threat to India's integrity and sovereignty. It also grants the Central Government wide-ranging powers to label organizations as terrorist organizations and prescribes punishments for engaging in such 'organizations' activities.
The amended UAPA gives the government the right to designate such organizations to be "illegal organizations" also “terrorist organizations." It is a criminal offense to be a member of such an organization. However, there is no definition of membership in the UAPA, which allows investigative authorities to use even the flimsiest of reasons to arrest individuals as members of such terrorist organizations.
The amended act says that officers with the rank of inspector of the NIA can investigate terrorist acts and terrorist organizations. Previously, officers with or above the rank of a deputy police superintendent (DSP) or assistant police commissioner (ACP) were empowered to prosecute such crimes.
As provided for in the act, the definition of unlawful conduct refers to an action that supports or is intended to support the secession of any part of India, or '' disclaims, challenges, disrupts or is intended to disrupt'' India's sovereignty and territorial integrity. Punishment for illegal conduct will last up to seven years. Experts and constitutional scholars say the government has opened a loophole to abuse the law by making the changes mentioned earlier to the new legislation – which was already contentious. The critics call it a law that is "over-broad and vague."
The UAPA Amendment Bill will give the unprecedented state power and rest assured that great power will come with great responsibility.[i] Let us look at the major cause of concern caused by the recent amendment of the UAPA:
Under UAPA, rules are more stringent than domestic criminal law. Under the statute, police are eligible for an investigation period of 180 days instead of 60 to 90 days under criminal law. It helps the police to arrest an accused on a period for six months without providing evidence against the accused. It also requires the accused to be remanded for 30 days to police custody, double the time period under criminal law.
No provision for anticipatory bail:
Anticipatory bail is not issued. Generally speaking, it is difficult to secure bail in UAPA cases, which is problematic because it allows for almost permanent detention even without a conviction, without any clear evidence, merely based on an allegation of an offense against it.
All these laws authorize custodial punishment and other ill-treatment, which is not an obscure reality in India. But the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment also need to be ratified by India.
Liberty and privacy under threat:
Another amendment concerning the investigation that has been brought is allowing searches, seizures, and arrests based on "personal knowledge" of the police officers with prior approval of only the Director-General of Police, which means without a written validation superior judicial authority. "This interferes with individuals' privacy, and liberty, which is not only by a fundamental right but also contravenes the provisions of the International Convention on Civil and Political Rights (ICCPR)," which protects against arbitrary or unlawful interference with a person's privacy and home.[ii]
The burden of proof upon the accused:
The UAPA transfers the burden of proof to the accused, rather than the prosecutor. Not only is this incompatible with the basic standard, but it also impels the deliberate planting of evidence.
Treating individuals as a terrorist:
According to the amended Act, the government's power to prescribe terrorist groups is now applied to people, i.e., the government may identify individuals and mark them as terrorists based on suspicion, without any due process. The declared terrorist may face repercussions like any alleged terrorist, but such branding is intended to expose the person to politics. While a designated ''terrorist'' will face the consequences under the act, any such person suspected of terrorism already faced such consequences under the existing act. The designation of ''terrorist'' seems designed to brand a person and expose them to the political and social consequences thereto. This is a bizarre addition to this act and shows the change in thinking about criminal laws – as an instrument of public shame rather than providing justice.[iii] Also, the new law allowed lower-ranking NIA officials to prosecute these cases. Previous legislation has already given police officers plenty of space for discretion as to who they intend to arrest. For what reason, such authority delegation gives unfettered power to investigating authority.
No provision available with the accused to sue for defamation:
Accusation of terrorism by the government over a person can have dreadful impact on the life of an individual which will lead have far-reaching social and political consequences to him and his/her family, such as not getting disrespected and rejected by the society, thrown out of their house by the landlords, fired from the jobs. Even it may hamper such children's lives who might become prey to abuses and hate elements in the schools among other students.
The biggest lacuna here is that there there's no provision to safeguard the rights from the accusation imposed by the government, and even if the accused is proved to be innocent; which is very difficult and next to impossible, still he will be considered as a threat to people by the society itself, making it difficult to stand in a normal position and maintain equal status as the person was before. In such cases, the accused who is proven to be not guilty shall be provided with the provision where he/she can get the claims for defamation.
Being an anti-terrorism statute, the act and its amendments have a significant role to play in the nation's defense on the one hand, and the need to avoid misuse and harm to citizens rights on the other, in accordance with the legislative intent of the act. Frequent judicial interference in implementing the act must be provided in such a way that it does not restrict the individual's social, political, and legal rights.
Ultimately, the Amendments of this kind can lead to a position where the future gets silent towards implementing their basic civil rights and preventing them from getting injured, thereby making the population passive in itself. Once imposed a charge under the act, the possibility of bail and retrieval from the confinement is almost a dream in light of the recent amendments.[iv]
Besides this, cosmetic changes seem to be taking place to improve the government's reputation and tarnish the credibility of those it believes to be ''terrorists.'' One can only hope that the government will properly exercise such a force. Consequently, the amendments made to the current UAPA laws shall be scrutinized in such a way that they may not conflict with the basic civil rights granted by the Constitution to individuals, given that they are periodically subject to unbiased judicial review for a healthy justice system.
D.E.S’s Shri Navalmal Firodia Law College, Pune University, Pune