Soon after its adoption, the constitution of India was amended in 1951. At the time, several progressive judgements by the judiciary held that laws that curb fundamental rights are essentially unconstitutional and fundamental freedoms could only be curbed in the most extreme cases. The first amendment countered this by amending Article 19 to add the word ‘reasonable’ before restrictions and to add ‘public order’ as being one more ground for abridging fundamental rights.
The evolution of Unlawful Activities (Prevention) Act (UAPA) has to be seen in the background of this gradual but steady constriction of Article 19, which guarantees the fundamental freedoms of expression, assembly and association.
The UAPA, 1967
The next major step in the abridgement of freedom of expression, assembly and association occurred in shape of the 16th amendment in 1963. Further ‘reasonable restrictions in the interest of the sovereignty and integrity of India’ were amended to Article 19 (2). This amendment occurred in the immediate wake of the Indian army’s defeat in the Sino-Indian War, as well as the threat posed by the DMK contesting elections in Tamil Nadu with secession from India being part of their manifesto. It was in this background that the UAPA was enacted on December 30, 1967 – to satisfy the need of the Indian state to declare associations that sought secession from India as ‘unlawful’. In this way, the UAPA gave powers to the central government to impose all-India bans on associations. The process of banning associations could simply be done by the government announcing them as ‘unlawful’ and hence banned (Section 3). Though the original 1967 Act had provisions for a tribunal to review or to hear an appeal against the ban, this remained a mere farce, as was seen in the case of SIMI.
The 2004 amendment
In 2004, amidst public outcry against the misuse of the Prevention of Terrorism Act (POTA), the government repealed it, but majorly amended the UAPA at the same time. The repeal of POTA was an election promise of the then newly elected Congress government. The amended UAPA made substantial changes to the definition of ‘unlawful activity’, included the definition of ‘terrorist act’ and ‘terrorist organisation’ from the repealed POTA, and also introduced the concept of a ‘terrorist gang’. In fact, chapters IV, V and VI dealing with ‘punishment for terrorist activities’, ‘forfeiture of proceeds of terrorism’ and ‘terrorist organisations’ respectively, were heavily borrowed from the repealed POTA. The schedule to the POTA of ‘terrorist organisations’ was also incorporated into the UAPA verbatim. A sunset clause that was earlier part of so-called anti-terror acts like Terrorist and Disruptive Activities (TADA) and POTA was done away with.
Even if one were to buy the ‘desperate times call for desperate measures’ logic, where a restriction to fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA. In fact the justification to the inclusion of a sunset clause in previous extra ordinary acts like TADA is that when there is a drop in the perceived threat, there would be no need of the legislation.
The 2008 and 2012 amendments
On December 17, 2008, another amendment of the UAPA was moved and adopted following the attack by armed gunmen in Mumbai on November 26, 2008. More provisions similar to POTA and TADA regarding maximum period in police custody, incarceration without a chargesheet and restrictions on bail were incorporated into the UAPA. The 2012 amendments to the UAPA further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.
What is a crime and who is a criminal?
Like the TADA and POTA, UAPA also criminalises ideology and association. By virtue of declaring an organisation ‘unlawful’ or ‘terrorist’ and banning it, these Acts have de facto criminalised their ideologies. Hence mere possession of any literature of such an organisation or even upholding an ideology common to that organisation in the absence of any violent act is construed as an offence. On the other hand, mere membership or association with such an organisation too becomes an offence. It is by this logic, that very often, organisations advocating the rights of a certain minority community or that of oppressed sections are easily labelled as fronts of a proscribed organisation under the schedule of the Act. Their activists or members get arrested and remain in prison for years, and are denied bail.
The draconian provisions of the UAPA
The Act introduces a vague definition of terrorism to encompass a wide range of non-violent political activity, including political protest. It empowers the government to declare an organisation as ‘terrorist’ and ban it. Mere membership of such a proscribed organisation itself becomes a criminal offence.
Furthermore, it allows detention without a chargesheet for up to 180 days and police custody can be up to 30 days. It also creates a strong presumption against bail and anticipatory bail is out of the question. It creates a presumption of guilt for terrorism offences merely based on the evidence allegedly seized.
In addition, the Act authorises the creation of special courts, with wide discretion to hold in-camera proceedings (closed-door hearings) and use secret witnesses but contains no sunset clause and provisions for mandatory periodic review.
Repeal of the UAPA
If the UAPA 1967 made anti-secession law a permanent requirement, UAPA 2004 made anti-terror law permanent. After it effectively substituted POTA in 2004, the UAPA has been used by all law enforcement agencies throughout the country as the foremost anti-terror law, though many states have their own anti terror laws – such as the Maharashtra Control of Organised Crime Act, 1999; Chhattisgarh Special Public Security Act, 2005; Jammu and Kashmir Public Safety Act, 1978; and Andhra Pradesh Public Security Act, 1992. These local laws are sometimes as, if not more, draconian and are used by the state prosecution agencies in addition to the UAPA. The repeal of POTA was essentially an eyewash.
In the absence of any sunset clause or provisions for mandatory periodic review, the repeal of the UAPA will depend on a mass movement. However, merely mentioning its misuse or low conviction rate may eventually lead to another eyewash, as in 2004. A movement against the UAPA should hence clearly stand for its repeal and that of all other state anti-terror laws with similar provisions. Other than civil liberty and democratic rights organisations throughout the country, an umbrella organisation called ‘Peoples’ Movement against UAPA’ has been initiated since January 2014.