UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967: VALIDITY AND SCOPE BEYOND TERRORIST ACTIVITIES

Author: MEDHA ARORA

UNIVERSITY: MAHARASHTRA NATIONAL LAW UNIVERSITY

The Unlawful Activities (Prevention) Act, 1967 (UAPA), stands as one of India’s foremost counter-terrorism legislations, crafted to address threats to the nation’s sovereignty, unity, and integrity. Over time, its ambit has significantly expanded, sparking debates about its constitutional validity and scope, particularly in its application beyond terrorist activities. This analysis delves into the legislative intent, constitutional underpinnings, judicial interpretations, and the contentious aspects of its broader application.

Historical Context and Legislative Intent

The UAPA was enacted in 1967 in response to growing secessionist tendencies and activities that threatened the unity of India. The law initially focused on curbing unlawful associations and separatist movements. Its primary objective was to safeguard India’s sovereignty by prohibiting activities that undermined the nation’s territorial integrity. The Act drew its authority from Article 19(2) of the Constitution, which permits reasonable restrictions on the fundamental right to freedom of speech and expression in the interest of the sovereignty and integrity of India.

Over time, amendments in 2004, 2008, 2012, and 2019 expanded the scope of the UAPA, particularly to combat terrorism. The 2004 amendment incorporated provisions from the repealed Prevention of Terrorism Act (POTA), thereby bringing terrorism explicitly within its ambit. Subsequent amendments introduced stringent provisions for proscribing individuals as terrorists, extending detention periods, and diluting procedural safeguards. These changes have spurred debate about the UAPA’s broader application and its implications for civil liberties.

Constitutional Validity

Reasonable Restrictions under Article 19

The UAPA’s provisions are primarily justified under Article 19(2) of the Constitution, which allows reasonable restrictions on free speech in the interests of sovereignty, public order, and the security of the state. However, critics argue that the Act’s broad and vague definitions of terms like “unlawful activity” and “terrorist act” risk overreach and misuse.

For instance, Section 2(o) of the UAPA defines “unlawful activity” to include any action, whether by words or visible representation, that questions the sovereignty or territorial integrity of India. Similarly, Section 15 defines “terrorist act” expansively, encompassing acts intended to threaten the unity or security of India, potentially including non-violent dissent.

Presumption of Innocence and Procedural Safeguards

The UAPA departs from established legal principles such as the presumption of innocence and fair trial. Under Section 43D(5), stringent bail conditions make it nearly impossible for an accused to secure release. Courts have observed that this provision disproportionately burdens individuals, as seen in cases like Union of India v. K.A. Najeeb (2021) 3 SCC 713. While upholding the provision’s constitutionality, the Supreme Court underscored the importance of balancing individual liberty with national security.

Expansion Beyond Terrorist Activities

Criminalization of Dissent

The UAPA’s application to activities beyond terrorism has raised concerns about its misuse to stifle dissent. Provisions targeting “unlawful associations” have been invoked against activists, journalists, and scholars, often for acts unrelated to terrorism. For example, the Bhima Koregaon case witnessed the arrest of several intellectuals under the UAPA for alleged Maoist links, despite weak evidence.

The law’s invocation against peaceful protests and expressions of dissent contravenes international human rights standards. The United Nations Human Rights Council (UNHRC) has emphasized that counter-terrorism laws must not infringe upon freedoms of speech and association. The Indian judiciary has intermittently intervened to curb such overreach, as seen in Anuradha Bhasin v. Union of India (2020) SCC Online SC 25, where the Supreme Court emphasized the proportionality doctrine.

Proscription of Individuals as Terrorists

The 2019 amendment empowered the government to designate individuals as terrorists under Section 35. Critics argue that this provision infringes on personal liberty and the right to reputation without adequate safeguards. Unlike organizations, individuals have limited recourse to challenge such designations. The absence of a judicial mechanism for pre-decisional hearings further exacerbates concerns of arbitrariness.

Impact on Journalistic Freedom

The UAPA’s chilling effect on journalism is evident in cases where reporters covering insurgent or extremist activities have been accused of supporting terrorism. For instance, journalist Siddique Kappan was arrested under the UAPA while en route to report on the Hathras gang rape case, sparking nationwide debates about press freedom. Such cases underscore the law’s potential to target individuals engaged in legitimate journalistic activities.

Judicial Interpretation and Safeguards

The judiciary has played a pivotal role in interpreting and tempering the UAPA’s provisions. In People’s Union for Civil Liberties (PUCL) v. Union of India (2004) 9 SCC 580, the Supreme Court struck down provisions of the POTA for being unconstitutional, indirectly influencing UAPA jurisprudence. Similarly, in Kedar Nath Singh v. State of Bihar AIR 1962 SC 955, the Court upheld sedition laws but emphasized the need to distinguish between disloyalty to the government and advocating violent overthrow.

In National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) SCC Online SC 461, the Court upheld stringent bail provisions but noted that evidence must meet a prima facie standard. The judiciary’s cautious approach in interpreting the UAPA highlights the tension between safeguarding national security and protecting individual freedoms.

Comparative Analysis: Global Practices

United States: USA PATRIOT Act

The USA PATRIOT Act, enacted post-9/11, shares similarities with the UAPA in its expansive definition of terrorism and enhanced surveillance powers. However, robust judicial oversight and sunset clauses provide a counterbalance. India’s lack of sunset clauses and independent oversight mechanisms amplifies concerns of misuse.

United Kingdom: Terrorism Act 2000

The UK’s Terrorism Act 2000 allows proscription of organizations and detention of suspects. Unlike the UAPA, it incorporates periodic reviews by parliamentary committees and an independent reviewer. Such safeguards could inspire reforms in India to enhance accountability.

Recommendations for Reform

  1. Narrower Definitions: Refining terms like “unlawful activity” and “terrorist act” to ensure clarity and prevent misuse.
  2. Judicial Oversight: Introducing pre-decisional hearings for proscribing individuals and enhancing judicial scrutiny of detention and bail provisions.
  3. Sunset Clauses: Incorporating periodic reviews and sunset clauses to ensure legislative oversight.
  4. Protecting Dissent: Explicitly excluding peaceful protests and dissent from the UAPA’s ambit.
  5. Independent Review Mechanism: Establishing an independent body to review cases and oversee enforcement.

Conclusion

The UAPA’s trajectory reveals its critical role in safeguarding India’s sovereignty and security. However, its broad application to non-terrorist activities raises pressing concerns regarding constitutional liberties and potential misuse. As India seeks to address complex security challenges, it must ensure that counter-terrorism laws adhere to democratic principles and the rule of law. The chilling effect of the UAPA on dissent, journalism, and activism underscores the urgent need for recalibration.

A robust counter-terrorism framework must balance security needs with individual rights. India can draw lessons from global practices, such as periodic reviews and independent oversight mechanisms, to refine the UAPA. Legislative reforms must narrow the definitions of “unlawful activity” and “terrorist act” while excluding legitimate dissent and peaceful protests from its ambit. Additionally, judicial oversight and safeguards must be strengthened to prevent arbitrary actions.

The judiciary’s role in interpreting and curbing the UAPA’s excesses remains vital. Cases like K.A. Najeeb and Anuradha Bhasin highlight the courts’ responsibility in maintaining a balance between liberty and security. Proactive judicial review can ensure that the UAPA is used as a shield against real threats rather than as a weapon to silence dissent.

In conclusion, the UAPA’s evolution underscores the interplay between security and freedom in a democratic society. Ensuring that this law serves its intended purpose without infringing on fundamental rights will reinforce India’s commitment to democracy and the rule of law. The way forward lies in recalibrating the UAPA to address contemporary challenges while safeguarding the freedoms that define India as a vibrant democracy.

Footnotes

  1. Union of India v. K.A. Najeeb, (2021) 3 SCC 713 (https://main.sci.gov.in.)
  2. Anuradha Bhasin v. Union of India, (2020) SCC Online SC 25 (https://main.sci.gov.in )
  3. People’s Union for Civil Liberties (PUCL) v. Union of India, (2004) 9 SCC 580, (https://main.sci.gov.in.)
  4. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 (https://main.sci.gov.in.)
  5. National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) SCC Online SC 461  (https://main.sci.gov.in.)

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