Syllabus
GS Paper 2 – Polity & Governance
Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential; citizens charters, transparency & accountability and institutional and other measures.
GS Paper 3 – Internal Security
Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges, basics of cyber security; money-laundering and its prevention.
Context
Supreme Court issued notice to the Delhi Police on petitions challenging the arrest of NewsClick founder under the draconian Unlawful Activities Prevention Act (UAPA).
Introduction
UAPA, initially created to address terrorism and prioritize national security, has transformed over time into a mechanism that has come under scrutiny for its role in stifling opposition. It has been criticized for its ambiguous definitions and the broad authority it bestows upon the government to label individuals as terrorists.
Historical Evolution
Under British Rule
- The UAPA had its origins in the British colonial era, initially appearing as the Criminal Law Amendment Act of 1908.
- Its primary purpose at that time was to suppress dissent and opposition against the British Crown.
Post-Independence
- In 1967, after India’s conflicts with Pakistan and China, the law was expanded to confer significant authority in identifying unlawful associations and penalizing individuals involved in activities supporting the secession of India.
Amendments in 2004
- In 2004, significant amendments were made, introducing a dedicated chapter on ‘terrorist activities’ within the UAPA framework.
Post-2008 Bombay Attacks
- Subsequent to the 2008 Mumbai attacks, further amendments were introduced, allowing for prolonged detention based on personal information, restricting anticipatory bail, and enabling the classification of individuals as ‘terrorists’ in the 2019 amendment.
Unlawful Activities (Prevention) Act, 1967 (UAPA)
Definition of “Unlawful Activity”
- The UAPA defines “unlawful activity” as any action carried out by an individual or association that leads to the secession of a part of India’s territory, questions India’s sovereignty, or disrupts the integrity of the nation.
Powers Granted to the Government
- Central government possesses the authority to designate an individual or organization as a terrorist or terrorist organization if they engage in acts of terrorism, prepare for terrorist activities, promote terrorism, or are otherwise involved in acts related to terrorism.
- Can impose all-India bans on associations that are declared ‘unlawful’ under this Act.
- Act applies to both Indian nationals and foreign nationals
- It holds offenders accountable in the same manner, even if the crime is committed on foreign soil outside of India.
Investigative Powers
- Cases under the UAPA can be investigated by both State police and the National Investigation Agency (NIA), providing flexibility in law enforcement.
Appeal Mechanism
- The UAPA also establishes a mechanism for appeals by setting up tribunals to review or hear appeals against the imposition of bans or other legal actions undertaken under the Act.
Amendments to UAPA
2004 Amendments
- These amendments criminalized indirect support for a terrorist organization, encompassing activities such as fundraising for terrorist acts and becoming a member of a terrorist organization.
2008 Amendments
- The 2008 amendments broadened the scope of the term “funds” to include a wider range of financial activities related to the financing of terrorism offenses.
2012 Amendments
- In 2012, the UAPA was further amended to expand the definition of a “terrorist act” to include offenses that pose a threat to the economic security of the country.
2019 Amendments
- Designation of Individuals: The government gained the authority to designate individuals as terrorists, marking a shift from the previous practice that only allowed the designation of organizations as terrorist organizations.
- Approval for Seizure of Property: If an investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of the NIA is now required for the seizure of property connected with terrorism. This represented a change from the earlier requirement of approval from the Director General of Police.
- Expanded Investigative Powers: Officers of the NIA with a rank of Inspector or above were empowered to investigate cases, expanding the cadre of officers with investigative authority.
- International Convention Inclusion: The 2019 amendments also added the International Convention for the Suppression of Acts of Nuclear Terrorism (2005) to the Schedule under the UAPA.
Significance of UAPA:
- Countering Terrorism
- It aims to uproot terrorism by addressing the issue of terrorists and insurgents receiving material support and funds, thereby disrupting their activities.
- Individual Accountability
- Designating individuals as terrorists is crucial to prevent them from evading the law by simply regrouping under a different name to continue their terror activities.
- This aspect becomes particularly relevant in the context of lone wolf attacks, which may not be tied to any formal organization.
- Expedited Justice
- The UAPA contributes to expediting the process of justice delivery by empowering officers at the rank of Inspector to investigate cases.
- It enforces a requirement for investigations to be completed within 90 days, ensuring a swifter resolution of cases related to terrorism.
- Reduced Delay in Asset Seizure
- The Act allows for the seizure of property associated with terrorism without the need for approval from the Director General of Police, particularly in cases where the investigation is conducted by an officer of the National Investigation Agency (NIA).
Issues related:
- Expanding Scope: It not only labels organizations as terrorist organizations but also gives the power to call an individual a terrorist.
- Lack of Proper Procedure: A significant problem is that someone can be named a terrorist by the central government without following a fair process. This can happen just by adding the person’s name, which is not fair.
- Membership Clauses Too Broad: The UAPA Act has rules about being a member of a banned organization, and these rules are too broad.
- Equality Principle Violation: Some people may be considered suspicious based on the government’s opinion, which goes against the idea of treating everyone fairly and not arbitrarily.
- Freedom of Speech Violation: It could lead to people being afraid to speak out against the government.
- Fear of Arrest Silencing People: This “chilling effect” means people are scared to say what they really think.
Challenges Arising from the UAPA Act, 2019:
- Erosion of Fundamental Rights
- One of the challenges posed by the UAPA Act is the erosion of fundamental rights, including those enshrined in Article 14, 19(1)(a), and 21 of the Indian Constitution.
- The Act allows for the detention of individuals labeled as terrorists for up to 180 days without presenting a formal charge sheet, thereby substantially infringing upon their fundamental rights.
- Contradiction to the Principle of ‘Innocent Until Proven Guilty’
- The Act stands in contradiction to universally recognized principles of justice by not upholding the fundamental tenet of ‘innocent until proven guilty,’ which is a cornerstone of just legal systems.
- Excessive Discretionary Authority
- Another challenge is the Act’s excessive discretionary authority, as it lacks objective criteria for classifying individuals as terrorists.
- This grants the government almost unchecked power to designate anyone as a terrorist, creating a significant risk of power misuse.
- Ambiguity and Unclear Definitions
- The Act introduces ambiguity and unclear definitions, particularly regarding terms like “terrorism” and its broad interpretation of ‘unlawful activity.’
- This ambiguity and broad scope leave room for differing interpretations, impacting the effectiveness and fairness of the Act.
- Concerns in the Appeals Process
- While the Act includes provisions for appeals, concerns arise due to the establishment of a government-appointed three-member review committee, potentially comprising serving bureaucrats.
- Low Conviction Rates
- Less than 3% of cases registered under the Act between 2016 and 2020 resulted in convictions, highlighting significant difficulties in effectively prosecuting cases under the Act, though this issue may not have immediate impact but remains a noteworthy concern.
What can be done?
- Striking a balance between national security and safeguarding civil liberties remains a challenging task.
- Need for continued scrutiny, refinement, and thoughtful consideration of its provisions to ensure a just and equitable legal framework in India.
Conclusion
The utilitarian principle underscores the importance of balancing national security with individual liberties. While some curtailment of freedom may be justifiable when it serves the greater good, such as protecting society from terrorism, the controversy surrounding the UAPA highlights the need for vigilance. If the restriction of liberties primarily serves political security rather than national security, then safeguarding those liberties must become the paramount concern, even if it comes at the expense of political security. Striking the right balance between security and freedom remains a complex and critical challenge in contemporary society.
Source: The Hindu
Practice Question
Explore the rampant misuse, frequently accompanied by impunity, of India’s foremost anti-terrorism legislation, the Unlawful Activities (Prevention) Act (UAPA), within the framework of contemporary counterterrorism jurisprudence. (Answer in 250 words)