Taming India’s Exacting UAPA And How It Compares to its Foreign Counterparts
Authored By Sana Yasmin Khan
Introduction:
In the vast tapestry of India’s legal landscape, only a few laws have attracted as much controversy and debate as the draconian Unlawful Activities (Prevention) Act (UAPA).
The Unlawful Activities (Prevention) Act (UAPA) was enacted in India in 1967 with the aim of combating unlawful activities and addressing threats to national security. Originally focused on dealing with secessionist movements in certain regions, the UAPA has undergone several amendments and expansions over the years to encompass a broader range of offenses, including terrorism. Its aim is to prevent unlawful associations, terrorist acts, and promote the investigation and prosecution of individuals or organizations involved in activities that pose a threat to the integrity and sovereignty of India, aphrase can be found in oaths of democratic and executive office holders.
In recent years, the UAPA has emerged as a potent instrument in the hands of the state, curbing civil liberties, stifling dissent, and impeding the exercise of fundamental rights. As a nation founded on democratic principles and pluralistic values, it is incumbent upon us to critically examine the problems posed by the UAPA and devise a comprehensive solution that upholds justice, fairness and the spirit of our Constitution.
The Problems:
Regrettably, the UAPA, in its current form, has become a potent weapon used by successive governments to suppress dissent and muzzle voices that challenge the status quo. One of its most significant shortcomings lies in the ambiguous definition of “unlawful activities”, which provide a carte blanche to authorities to label peaceful activists, journalists, and political opponents as ‘terrorists’ merely for expressing their views.
Under the garb of national security, the UAPA has been deployed to incarcerate individuals for prolonged periods without bail, obstructing their right to a fair trial and presumption of innocence. This has resulted in a climate of fear, stifling free expression and creating a chilling effect on civil society activism. The law’s provisions regarding seizure and attachment of property often amount to collective punishment, disregarding the principles of proportionality and due process.
Furthermore, the UAPA’s provisions regarding bail and pre-trial detention are a cause for great concern. The Unlawful Activities (Prevention) Act (UAPA) has faced criticism for its alarmingly low conviction rate, estimated to be around 2%.
Government data from 2016 to 2020 revealed that out of 24,134 individuals accused in 5,027 registered cases under the UAPA, only 212 resulted in convictions, while 386 individuals were acquitted. This means that a staggering 97.5% of those arrested under the UAPA during this period remained in prison awaiting trial [1].
The Act bestows upon the prosecution the ability to seek an extended period of custody without sufficient judicial oversight. This results in an erosion of the basic tenets of natural justice, as individuals are held behind bars for indefinite periods without being convicted of any crime. Such prolonged detention without trial undermines the presumption of innocence and sets a dangerous precedent that compromises the very essence of our legal system.
What the Courts say:
In a landmark ruling on 1st February 2021, the Supreme Court of India established that bail could be granted to individuals accused under the Unlawful Activities (Prevention) Act (UAPA) if their right to a speedy trial was infringed upon. This decision emphasized the importance of timely justice delivery and provided a crucial safeguard for those facing prolonged detention without trial.
Adding to the judicial discourse surrounding the UAPA, the Supreme Court rendered another significant judgment in 2023. In this ruling, the Court clarified that the mere “membership of an unlawful organization” itself constituted an offense under the UAPA. This interpretation underscored the expansive scope of the law, emphasizing that merely being associated with an organization deemed unlawful was sufficient grounds for prosecution under the Act. The judgment emphasized the need to curtail any form of support or affiliation with groups involved in unlawful activities.
These rulings by the Supreme Court have had far-reaching implications for the interpretation and implementation of the UAPA
In the aftermath of the Bhima Koregaon violence in 2021, the Supreme Court of India granted bail to Sudha Bharadwaj, observing that dissenting views and ideologies could not be criminalized unless they incited violence. The court highlighted the importance of protecting freedom of speech and expression, even when it involved criticism of the government.
Around the globe:
A comparative analysis of anti-terrorism laws in different countries can provide valuable insights into the scope and impact of the Unlawful Activities (Prevention) Act (UAPA) in India.
By examining the similarities and differences between the UAPA and similar legislation in other democratic nations, we can gain a nuanced understanding of the challenges posed by counter-terrorism measures and their implications for civil liberties.
One notable comparison can be drawn with the United States’ Patriot Act, enacted in the aftermath of the September 11 attacks. While both the UAPA and the Patriot Act aim to address terrorism, there are notable distinctions in their approach. The Patriot Act primarily focuses on expanding surveillance powers and enhancing intelligence gathering capabilities, which have also raised concerns about privacy and civil liberties.
Another interesting example is the United Kingdom’s Terrorism Act, which has undergone significant amendments and revisions over time. The Terrorism Act initially granted authorities wide-ranging powers for detention without charge, but subsequent judicial and parliamentary scrutiny led to the introduction of safeguards, including sunset clauses. These clauses ensured that specific provisions of the law would expire unless explicitly renewed by Parliament, highlighting the importance of regular review and accountability.
Furthermore, examining anti-terrorism laws in countries like Canada, Australia, and Germany can shed light on diverse approaches and safeguards incorporated to protect civil liberties while countering terrorism. Canada’s Anti-Terrorism Act incorporates judicial oversight and regular parliamentary review, ensuring ongoing scrutiny and accountability. Australia’s Counter-Terrorism Legislation Amendment Act focuses on preventative measures, such as control orders, while still maintaining judicial oversight. Germany’s Counter-Terrorism Act emphasizes the importance of individual rights and due process, setting clear limitations on state powers.
Similarly, in the United Kingdom, the Prevention of Terrorism Act incorporated sunset clauses, which mandated the expiration of specific provisions unless explicitly renewed by Parliament.
In the UK case of A v. Secretary of State for the Home Department, the House of Lords (now the Supreme Court) emphasized the importance of upholding human rights and liberties while combating terrorism. The court ruled that indefinite detention without charge under the Prevention of Terrorism Act violated the right to liberty and was thus unlawful.
By conducting a comparative analysis of anti-terrorism laws, we can identify best practices and lessons learned from other jurisdictions. This analysis can serve as a guide for reforming the UAPA, striking a balance between national security concerns and the protection of civil liberties, while upholding democratic principles and fundamental rights.
Moving Forward:
To dismantle the oppressive facets of the UAPA while preserving its original intent to counter terrorism, the law requires an urgent reconfiguration.
First and foremost, an objective redefinition of “terrorist acts” and “unlawful associations” is imperative. This would entail differentiating between genuine acts of violence and non-violent dissent, ensuring that legitimate opposition is not erroneously targeted.
A fundamental safeguard must be the guarantee of the right to a speedy and fair trial for those accused under the UAPA. The use of prolonged detention without charge should be strictly curtailed, with a clear timeline established for filing charges against any individual. Moreover, independent judicial oversight should be a cornerstone in cases invoking the UAPA, to prevent the potential abuse of power by the executive.
It is the solemn responsibility of India’s democratic leaders to rectify the alarming trajectory of the UAPA and restore faith in the principles of justice and liberty. By undertaking judicious reforms, we can strike a delicate balance between national security imperatives and the cherished rights of individuals. Only then can India confidently reclaim its position as a beacon of democracy, showing the world that we can combat terrorism without compromising our core values.
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Source
[1] https://thewire.in/government/uapa-case-data-process-punishment-home-ministry-rajya-sabha
