The Unlawful Activities Prevention Act, was initially enacted by the Parliament in the year 1967 and received the assent of both the houses on 30th December. The main objective of the Act was to have an effective and efficient way of preventing the unlawful activities taking place within the country and allot more power to the respective states and central agencies for dealing and coping with such activities that are affecting the integrity and sovereignty of India. But this act has been amended several times since the repealing of TADA and POTA (draconian laws) of India, in order to incorporate some of the similar provisions of such repealed acts within the Unlawful Activities Prevention Act 1967.
As per the National Integration Council, the 16th Amendment of Constitution 1963, it was stated by the Parliament that laws could be imposed posing reasonable restrictions on certain fundamental rights in order to preserve the interests and integrity of the nation. Right to freedom of speech and expression, right to form associations and right to assemble without arms fall under the category where reasonable restriction can be imposed by parliament, if found necessary. Thus, it became even easier for the Parliament to make multiple amendments under the Unlawful Activities Act, as it came under reasonable restrictions to safeguard the integrity of India by making trifling acts as punishable under the Act.
While the TADA and POTA laws were repealed after major uproars in Kashmir and strong judicial reprimands to the government, the successive governments (UPA and NDA) have started incorporating certain similar provisions of the repealed acts in the UAPA to cover those features. For example, UAPA has elaborated the definition of “unlawful activity” to include the term “terrorist act” and “terrorist organization” which were known to be the main derivates of POTA. Infact after the 2008 Mumbai attack the UPA government had made stringent amendments in UAPA regarding the maximum period a person can be held in police custody and jail without filing a chargesheet and even certain demarcations were put on availing bail into the UAPA.
Essential Provisions of the UAPA 1967 –
Let’s have look into the primary provisions of the UAPA. They are-
- Power of Investigating Authority (section 43)- this provision states the officers who are competent to investigate these matters. Chapter IV and VI of the Act deals with the investigating authority.
- The Deputy Superintendent of Police or Police officer of equivalent rank shall be authorised to the check the offence of terrorism
- In metropolitan areas, the matter shall not be dealt by a police officer who is below the rank of Assistant Commissioner of Police.
- In any other case where (a) and (b) is not applicable then the officer of Central government who is not below the rank of Deputy Superintendent of Police or Police officer with equal rank shall be allotted to investigate about the offence as punishable in the IV and VI chapter of the Act.
- Protection of Witness (Section 44)- as per this section, it is vital to protect the witness as they shall help in constituting direct evidence before the Court, especially in such grave terror related matters. So, certain things need to be remembered as per the provision-
- The proceedings shall be recorded in writing and be held in camera, if the Court desires so
- The Court on the application of witnesses or public prosecutors or on its own motion, might decide to keep the identity of the witness and his/her address a secret or anonymous, if there is probability of danger to the life of the witness.
- Further, if the Court decides to keep the identity of the witness as secret, then the Court may take further steps –
- Hold the proceedings at different place as decided by the Court
- When the final order or judgment is made accessible to the public, the Court may avoid to mention the name and address of the witness
- The issue of any directions relating to the identity of the witness are not disclosed at any point
- Infact, any decision that is in public interest to order, all or any of those proceedings pending before the Court will not be published anywhere in any manner.
- If the Court’s decision or direction regarding keeping the identity of the witness secret is contravened or violated then, it shall be punishable with imprisonment extending to 3 years and shall be liable for fine too.
Review Committee –
One of the prominent provisions of the UAPA is the establishment of “review committee” which plays a restrictive and guardian role for the alleged persons as compared to the POTA or National Security Act. Section 37 of the UAPA compels the central government to set up one or more Review Committees for the reason of de-notification of terrorist organization.
The Committee shall comprise of Chairperson who shall be Judge of High Court of any state. There shall be maximum 3 members in the committee and the other members shall not be below the rank of secretary to the government of India and should have 1-year experience either in legal matters or administration of criminal justice.
Section 36 of the Act talks about the scope of power exercised by the Committee, i.e. regarding the de-notification of the terrorist organization. It states that the Committee may review the order of the Central government where the government has rejected the application of the terrorist organization or any affected person in pursuance of removal of the respective person or organization from the Schedule List. The Committee may review the order and then if it finds that the government was wrong or unjust in rejecting the application and the Committee thinks that Central government may remove the organization from the Schedule List on the basis of Committee’s order. The Committee also has the power to review every order of the Central government that authorizes for interception of communication.
Moreover, the Committee also has the power to make order and directions upon the applications where there is prima facie case for proceeding against the alleged person or in case the prima facie case is not made then the pending proceedings of the accused shall be withdrawn by the direction of this committee. Similar amendment in POTA was also enacted where the Review Committee had the power to intervene the investigation and even trials and the order of the Committee was binding on officer as well as the state or central government.
Punishments under the Act
There are certain punishments mentioned under the Act and they are comparatively harsher than the ordinary punishments for the following offences-
- Offence of Terrorist Act- if the victim has suffered Death, then it is punishable with death or imprisonment for life and shall be liable for fine too. If the victims have suffered anything other than death, then it shall be punishable with imprisonment of 5 years extending to life imprisonment along with fine.
- Offence of organizing Terrorist Act- the punishment shall be imprisonment of minimum 5 years extending to life imprisonment along with fine.
- Offence of being member of Terrorist gang- the punishment shall be life imprisonment along with fine
- Offence of Holding proceeds of terrorist- punishment shall be life imprisonment and shall be liable for fine too.
- Offence of threatening Witness- this shall lead to imprisonment of atleast 3 years extending to life imprisonment along with fine
- Offence of Harbouring- punishment of 3-year imprisonment extending to life imprisonment along with fine
- Offence of conspiracy- 5 year imprisonment extending to life imprisonment and shall be liable for fine also.
Amendments have led to targeting of Minorities –
Lately there have been debates and discussions regarding the misuse of UAPA with its frequent amendments, latest one in 2019 where it has been pointed out that the Act has tilted against the Minorities of India including the major ones Muslims, peasants and tribal groups are the most common ones. The amendments in the UAPA in every 4 years brought in 2004, 2008, 2012 and 2019 have constantly amplified the power and authority of the Central government despite the fact that India has a quasi-federal arrangement. As stated above, when POTA was repealed, the same year UAPA was modified and amended to instil the feature of terrorism in the Act.
Although, the definition of terrorism given under the Act has failed to clarify the aim of this action is against all political, ideological and religious ends which makes the definition open ended and vague in terms of interpretation of “terrorist act”. Further in 2004 amendments certain other acts such as damaging the government property was also included as the act of terrorism.
In 2008, further revisions were made in the Act with regard to the attacks happened in 2006 and the scope of “terrorist act” was broadened to cover all the acts that are likely to cause or strike terror within the territories of India or abroad, along with abductions, kidnapping and other means of coercion used to incite or threat government was added in the category. The amendment also granted the power to the officers perform searches and make even arrests without a warrant, i.e. based solely on the knowledge or information source from some document, article or anything else. Basically, the Act was allowing the criminalization of any such act which is possibly wrapped well with the intention of going against the government.
UAPA Amendment Bill Of 2019 –
Some of the latest changes proposed and adopted by the government in the 2019 bill of UAPA states that before the investigating officer had to take prior permission of the Director General of Police of State for conducting raids and seizing of the properties which are probably linked to terrorist acts. But as per the Amendment Bill, this requisite of prior permission is removed and shall be conducted by the officer of National Investigation Agency, and the officer shall require the sanction from the Director General of NIA.
The central agencies like the Central Bureau of Investigation (CBI) need to get prior permission from the respective State government as “law and order” comes under the category of state subject in Constitution. Even the present UAPA legislation states that only officers not below the rank of Deputy Superintendent or Assistant Commissioner of Police of the NIA shall have the power to investigate the offences under UAPA law, but with the amendment bill even the NIA officers of Inspector rank can deal with these offences.
The Unlawful Activities Prevention Act 1967, has been a controversial act as it has been subjected to multiple amendments in order to incorporate the main features of TADA and POTA law. The Act was originally made with the aim to protect the sovereignty and integrity of the nation but lately it is being used a means to keep the genuine protestors out of sight of the general public.
-This Article has been authored by Rhea Banerjee, Pursuing B.A.LL.B from Indore Institute of Law