• Ayushi Srivastava

UAPA - Fading lines between Civil Rights and Anti Terrorism Legislation

“An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.

—Thomas Paine (On First Principles of Government, 1795)


The century began with the United Nations Security Council exhorting the member states to pass counter-terrorist legislation.[1] The Unlawful Activities (Prevention) Act, 1967 [2] ("UAPA") was one such legislation enacted by the Indian Government to declare organizations as “unlawful” and then curb their activities and scrutinize their members. Under this law, organizations and individuals could now be designated as "suspects", without the state having to prove those "suspicions" in tandem with the standards of proof under criminal law. Also, the UAPA is designed in such a way that it does not necessarily criminalize a person for an outright criminal activity, but makes assumptions about his criminality through inferences. This has led to the foundation of criminalizing innocent people merely on the whims and fancies of the authorities and government bodies, and in recent times, it can be seen that the application of UAPA completely ignores the thin line between Civil Rights and Anti-Terrorism law.


Criticism of UAPA:


1. Human Rights Violation:


Human rights groups argue that India's security laws are incompatible with international human rights law and the Indian Constitution.[3] They point out that security laws currently in force place excessive, unnecessary restrictions on the rights to a fair trial, freedom of association, freedom of speech, and freedom of movement, as guaranteed by the International Convention on Civil and Political Rights, to which India is a party.[4]


The substantial area of criticism for UAPA comes from the fact that it endangers the human rights. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”[5] The ability of this law to subvert and incapacitate the freedom of the citizens of the country that are guaranteed under the Constitution of India is what makes it problematic and heavily criticized.


One of the major aspects where this law strays from the already established general criminal law standards is that a person can be incarcerated up to 180 days without a charge sheet being filed[6], thereby violating the Right to life and liberty[7] guaranteed under the Constitution of India. UAPA empowers the parliament to restrict the rights and freedoms of citizens to protect ‘the sovereignty and integrity of India’. The constitutionally guaranteed right to protest flowing from the right under Article 19(1)(b) of the Constitution to “assemble peaceably and without arms”, can turn into a "cognizable offence"; and the right to protest gets further vitiated and becomes a terrorist act, or a conspiracy, or an act preparatory to the commission of a terrorist act under the UAPA.


Right to protest is held to be one of the most imperative rights in a democracy and this was reiterated in the recent bail judgment given by the Delhi High Court while hearing the case of three JNU students who were arrested under the UAPA during the CAA protests. The Delhi High Court in its order categorically held, "Right to protest not 'Terrorist Act' under UAPA".[8] Though the Apex Court of the country has decided to not use this judgment as a precedent for now, however, it still for a short period of time instilled a great sense of constitutionality for the public.[9]


The Hon'ble Delhi Court relied on the judgment of the Hon’ble Supreme Court in Mazdoor Kisan Shakti Sangathan vs Union of India and Anr.[10] explaining the contours of legitimate protest. In the said decision, the Hon’ble Supreme Court says that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, since people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. The Hon’ble Supreme Court further says that a demonstration may take various forms: it may be noisy, disorderly, and even violent, in which case it would not fall within the permissible limits of Article 19(1)(a) or 19(1)(b) and in such case, the Government has the power to regulate, including prohibit, such protest or demonstration. The Government may even prohibit public meetings, demonstrations, or protests on streets or highways to avoid nuisance or disturbance of traffic but the Government cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Article 19(1)(a) and 19(1)(b) of the Constitution.


Further, in K.S. Puttuswamy v. Union of India[11], the Supreme Court recently recognized the right to privacy as an integral part of Article 21 of the Constitution which guarantees a right to life and personal liberty. The Apex Court held that the right to be let alone reflects the inviolable nature of the human personality. Profiling by the executive is thus a violation of Article 21 as it infringes upon the personal autonomy of an individual.[12]


2. Reverses the Principle of Presumption of Innocence Until Found Guilty:


Another significant departure that this particular legislation takes from the standard criminal law procedure is the reversal of the presumption of innocence until found guilty. As the American Jurist Schaefer said that “The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law”[13]


India follows the adversarial system of criminal justice where justice is reached through the testing of evidence through cross-examination, and it is because of this long-drawn-out procedure that criminal trials take years to reach any conclusion. During these long criminal trials, bail is the only way to safeguard the constitutional right to liberty. As has been held by the Supreme Court that “bail is the rule and jail is an exception”[14] ; since the guilt of the accused is not ascertained until the trial ends, it is unfair to forestall someone’s liberty based on mere accusations.


Though, when we look at cases booked under the UAPA, while considering the question of bail the court only looks at the prosecution’s case. If the court finds a prima facie case based on the police report or the case diary under Section 173 of the Criminal Procedure Code then bail can be denied.[15] As is clear that this provision of the Act favours one side and it is not possible to make any sort of effective determination of guilt or innocence of a person by this method. The prosecution can make up any sort of case that it feels like as there would be no defence to disprove or deny it. Thus, instead of creating a presumption of innocence, it creates a presumption of guilt.[16]


3. Grants Impunity to the Government:


While in custody, many suspects are also subject to torture and ill-treatment.[17] UAPA deleted a previous law’s provision that allowed police officers to be punished for malicious prosecution.[18] Though, now under the amended Act, the prosecution and the government are saved from the backlash of any frivolous or malicious prosecution done by it.[19]


Thus, if the victims of this Act who even after going through the long trials, are proved innocent, would not have the right to take any legal action against the government or any way of seeking compensation. The accused under this Act would have to live with the stamp of being a terrorist in the society as they face media trials, the one-sided narrative does more than enough to harm their reputation and they have no recourse to challenge it either. Hence, this shows the partisan nature of this legislation as it shields the government actors from any lawsuit of either civil or criminal nature.


4. Low rates of Indictment:


Another worrying factor is the low rate of "Indictment" under this law depicting the callousness with which these security laws are being used without much justification. The conviction rate is a mere 2%. In 2019 alone, 1126 cases were filed under this Act according to the figures presented by the Ministry of Home Affairs in the Parliament compared to the 897 cases in 2015. The large amount cases but a low indictment rate even though the case having a pro-prosecution tilt shows how shoddy these cases are. It goes to show how many people are falsely implicated under this Act which was though originally was designed to keep terrorism in check but in reality, has been keeping the opposition in check.


The fact that charge sheets are filed in only 9% of the cases is evidence of the fact that in 91% of the cases, persons are arrested and denied bail for a maximum of six months, within which the charge sheet is to be filed. Even if the charges are dropped, in the public eye, the individuals concerned will have lost their reputation and their options to seek and avail opportunities in life for a dignified existence. The opportunities for gainful employment would also be limited. This violates their right to life and personal liberty. Their prosecution itself jeopardises the prospects of their livelihoods even in the absence of a chargesheet or their conviction.[20]

6. Used as a Tool for Political Gain and Political Vendetta:


Every state has an obligation and a right to guard its citizens against terrorism and other criminal acts; nevertheless, such a course of action must be implemented within a well-formed structure of human rights that should not weaken the legitimate dissent of its citizens. Under the UAPA, the governments often try to suppress dissent by initiating cases against the proactive members of the society and the opposition. Through this the government violates the basic fundamental right to expression[21] under the garb of national security. The Supreme Court of India had also endorsed the advocacy-incitement distinction of the US Supreme Court in Brandenburg v. Ohio[22] and held that Article 19 (1) (a) would protect free speech to the extent that there is mere advocacy of opinion and no incitement of violence.


As will be agreed by any reasonable man that there is a colossal difference between political dissent and terrorist activities but the vague definition of ‘terrorist acts[23] under the UAPA have rendered it possible for the government to subdue the former while pretending to subdue the latter.


The most recent amendment that came was the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA, 2019) which expanding the definition of “terrorist” to include individuals under Section 35 and 36 of Chapter VI of the Act.[24] Thus, now not just an organisation but an individual could too be declared as a ‘terrorist’ by a simple notification of the government on the same vague grounds that were used for the organisations. This amendment gives the executive unbridled and unfettered powers to initiate witch-hunts against its political opponents without much substance, thus, making it more about the fallout in the social standing of the person rather than justice.


This is in contravention to the definition promoted by the United Nations (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. In 2006, the Special Rapporteur said that to call an offence a “terrorist act”, three elements must be cumulatively present —

  • the means used must be deadly;

  • the intent behind the act must be to cause fear amongst the population or to compel a government or international organisation to do or refrain from doing something; and

  • the aim must be to further an ideological goal.


UAPA, on the other hand, offers an overbroad and ambiguous definition of a “terrorist act” which includes the death of, or injuries to, any person, damage to any property, an attempt to overawe any public functionary by means of criminal force, and any act to compel the government or any person to do or abstain from doing any act, etc. It also includes any act that is “likely to threaten” or “likely to strike terror in people”.[25] Thereby allowing the government now to declare a private person as a terrorist on mere "likelihood".


Conclusion:


Thus, UAPA was passed in the Parliament as "Security Legislation", i.e., a special legislation aimed at countering terrorism. But as we have seen in recent times, this legislation has often been used by the state to suppress dissent from political activists rather than fulfilling its main objective. Time and again the misuse of such laws have bought them under the scrutiny and has garnered similar views from people across the country, finding it more problematic rather than helpful. War against terrorism through such legislations is often misused because of the misplaced intentions of the ruling government.


The Act and its subsequent amendments, as can be seen from the above criticism was designed for abuse and with the intent of silencing dissent. The claim that the constitutional system of checks and balances keeps the misuse of such legislations in check is erroneous and uncorroborated. Political dissent is a fundamental right that should be protected in a democracy.


[1] United Nations Security Council Resolution 1373, United Nations (September 28, 2001), available at https : //www.un.org/sc/ctc/resources/databases/recommended-international-practices-codes-and-standards/united-nations-security-council-resolution-1373-2001/, accessed 22nd June, 2021. [2] The Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967) [3] South Asia Human Rights Documentation Centre, Alternate Report and Commentary to the United Nation Human Rights Committee on India's Third Periodic Report under Art. 40 of the International Covenant on Civil and Political Right (SAHRDC, 1997) available at http : //www.hrdc.net/sahrdc/resources/alternate_report.htm accessed June 22, 2021. [4] Ibid. [5] Art. 1 of the Universal Declaration of Human Rights [6] Section 43D (2) of the Unlawful Activities (Prevention) Act,1967. [7] Article 21 of the Indian Constitution,1952. [8] CRLA No. 39/2021, Asif Iqbal Tanha v. State of NCT of Delhi.

[9] SLP(Crl.) No. 4289/2021, State of NCT of Delhi v. Devangana Kalita. [10] (2018) 17 SCC 324. [11] AIR 2017 SC 4161 [12] Rongeet Poddar, “Constitutionality of India’s Unlawful Activities (Prevention) Amendment Bill, 2019: India’s McCarthyism Moment”, (OxHRH Blog, August 2019), <https://ohrh.law.ox.ac.uk/constitutionality-of-indias-unlawful-activities-prevention-amendment-bill-2019-indias-mcarthyism-moment/>, last accessed on 22nd June, 2021. [13] Federalism and State Criminal Procedure, as reproduced in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 : 1978 Cri LJ 968. [14] State of Rajasthan v. Balchand alias Baliya in 1978. [15] Section 43D (5) of the Unlawful Activities (Prevention) Act,1967. [16] Unlawful Activities (Prevention) Act, Section 43E; Human Rights Watch, Back to the Future: India’s 2008 Counterterrorism Laws, July 27, 2010, available at: https://www.hrw.org/report/2010/07/27/back-future/indias2008-counterterrorism-laws [17] While abuses happen throughout the country, Human Rights Watch has identified the Ahmedabad Crime Branch of the Gujarat state police as the location of some of the worst abuses. Here, suspects testify that they were “blindfolded and shackled with their arms crossed over their knees from morning to night.” Suspects also claimed to have been denied proper food and water and some were tortured with electric shocks. Human Rights Watch, Anti-Nationals: Arbitrary Detention and Torture of Terrorism Suspects in India (February 2011), at 4, available at http://www.hrw.org/sites/default/files/reports/india0211W.pdf [18] Unlawful Activities (Prevention Act, Section 49; Rethink the new UAPA, The Hindu, Dec. 20, 2012, available at: http://www.thehindu.com/opinion/editorial/rethink-the-new-uapa/article4218425.ece. [19] Section 49 of the Unlawful Activities (Prevention) Act, 1967. [20] Kapil Sibal “UAPA undermines personal liberty” < https://www.hindustantimes.com/opinion/uapa-undermines-personal-liberty-101624273476408.html> last accessed on 22nd June, 2021. [21] Article 19(1)(a) of the Indian Constitution, 1952. [22] 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430; 1969 U.S. LEXIS 1367; 48 Ohio Op. 2d 320. [23] Section 15 of the Unlawful Activities (Prevention) Act, 1967. [24] The Unlawful Activities (Prevention) Amendment Bill, 2019 < https://prsindia.org/billtrack/the-unlawful-activities-prevention-amendment-bill-2019> last accessed on 22nd June, 2021. [25] Section 15 of the Unlawful Activities (Prevention) Act, 1967.


Author: Ayushi Srivastava, Paralegal, S&D Legal Associates.

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