Unlawful Activities (Prevention) Act (UAPA), 1967

The UAPA – an enhancement on the TADA (Terrorist and Disruptive Activities (Prevention) Act), which was allowed to lapse in 1995 and the Prevention of Terrorism Act (POTA) was repealed in 2004 — was originally passed in 1967 under the then Congress government led by former Prime Minister Indira Gandhi. Eventually, amendments were brought in under the successive United Progressive Alliance (UPA) governments in 2004, 2008 and 2013

Introduction

The Unlawful Actions (Prevention) Act, 1967 (hereinafter ‘UAPA’) is designed to make illegal and terrorist activities that threaten India’s integrity and sovereignty, punishable by nature. It gives the Central Government, wide authority to designate organisations as terrorist organizations and to prescribe punishments for those who participate in such related activities. The Act was enacted to ease the process of prevention of certain illegal activities by persons and organisations, as well as matters related to them. The Act was amended by the Parliament in 2019 and the same was notified on August 8, 2019. The most notable alteration brought about by the amendment was that it changed Section 35 of the Act and provided the Central Government with the right to declare someone a ‘terrorist’ under Schedule IV. Individuals were not covered under the head of ‘terrorists’ prior to this amendment since only organisations were identified in that way.

Salient Features of the UAPA Act

The Act gives special procedures to handle terrorist activities, among other things. It aims at the effective prevention of unlawful activities associations in India. Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
Who may commit terrorism: According to the Act, the union government may proclaim or designate an organisation as a terrorist organisation if it: (i) commits or participates in acts of terrorism, (ii) prepares for terrorism, (iii) promotes terrorism, or (iv) is otherwise involved in terrorism. The Bill also empowers the government to designate individuals as terrorists on the same grounds.
UAPA has the death penalty and life imprisonment as the highest punishments. The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
Under UAPA, both Indian and foreign nationals can be charged. The offenders will be charged in the same manner whether the act is performed in a foreign land, outside India.
Approval for property seizure by National Investigation Agency (NIA): As per the Act, an investigating officer is required to obtain the prior approval of the Director-General of Police to seize properties that may be connected with terrorism. The Bill adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director-General of NIA would be required for seizure of such property.
The investigation by the National Investigation Agency (NIA): Under the provisions of the Act, investigation of cases can be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
Insertion to the schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, comprising of the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill adds another treaty to this list namely, the International Convention for Suppression of Acts of Nuclear Terrorism (2005).

Importance of UAPA, 1967

The Unlawful Acts (Prevention) Act, 1967 aims to prevent illegal activities in India. Its principal goal is to give authorities the power to deal with acts that threaten India’s integrity and sovereignty. The UAPA,1967 was enacted to make it easier to prevent certain illegal activities by persons and organisations, as well as matters related to them.
UAPA was passed for the first time in 1967. The statute stems from a recommendation made by a committee created by the National Integration Council to look into the subject of ‘national integration and regionalization’ in order to impose ‘appropriate constraints.’ The Constitution (16th Amendment) Act of 1963 was passed in response to the committee’s findings, imposing reasonable restrictions on the exercise of some fundamental rights, including:

Freedom of Speech and Expression.
Right to assembly peacefully.
Right to form associations and unions.

In order to enable the implementation of these restrictions, UAPA was introduced and enacted in the year 1967.

Arguments in Favour of Amendments

The objective of the proposed amendments is to facilitate speedy investigation and prosecution of terrorist offences and designating an individual as a terrorist in line with international practices.
The amendments will also allow the NIA probe cybercrimes and cases of human trafficking, sources aware of the proposal said Sunday.
Amendment to Schedule 4 of the Act, the NIA will be allowed to designate an individual suspected to have terror links as a terrorist. In the current scenario, before the amendment was made, only organisations were designated as ‘terrorist organisations’.
A strict law is of utmost necessity to strengthen the investigation agencies and to uproot terrorism from this country in this regard.
Hon’ble Home Minister stated in Lok Sabha that law can not be misused against any individual, yet, those individuals who engage in terrorist activities against the security and sovereignty of India, including the urban Maoists, would not be spared by the investigating agencies either.
There are no changes to the bail or arrest provisions. Hence, it is evident that there will be no fundamental rights violation of anyone. Also, the burden of proof is on the investigating agency and not on the accused.
The amendment about attaching properties amassed through proceeds of terrorism is being proposed in order to accelerate investigation in terror cases and is not against federal principles.
At present, Section 25 of the UAPA states that forfeiture of property acquired from terrorism can be done only with the prior approval given in writing by the DGPs of the state wherein lies such property. But the problem is that many times, the terror accused owns properties in multiple states. In this kind of a scenario, it becomes tough to get the approvals of several DGPs and can cause a delay in the whole process of forfeiting property, which can help the accused transfer such property to someone else.

The UAPA (Amendment) Act, 2019

The Unlawful Activities (Prevention) Amendment Act, 2019 was enacted by the Parliament on August 2. It soon gained the President’s approval on August 8th, 2019. The Unlawful Activities (Prevention) Act of 1967 underwent a number of amendments thanks to the Amendment Act, which was passed by Parliament. The main adjustment was made to Section 35 of the 1967 Act.
The UAPA (Amendment) Act, 2019, included a contentious revision that broadened the definition of “terrorists” under the Act. Under Sections 35 and 36 of Chapter VI of the parent legislation, the Central Government revised it in 2019 to identify persons as ‘terrorists’ if it believes that the individual is involved in terrorism. Once the person is so categorized, their name will be added to Schedule 4 of the Act.
Sajal Awasthi is the primary petitioner in the two cases that have been brought thus far against the Amendment Act, namely, Sajal Awasthi v. Union of India (2019) and Association for Protection of Civil Rights v. Union of India (2019). Both petitioners had essentially made the same objections to the proposal. Both petitioners’ main contention is the fact that a person can be labelled as a terrorist without any court review and even before a case is started, unjustified. They contended that the Amendment Act violates the Constitution’s rights to life (Article 21), free speech (Article 19), and equality (Article 14).
According to the Awasthi petition, the provision’s lack of specific criteria upon which one may be labelled a terrorist constitutes a violation of the right to equality. The clause is, therefore, ‘manifestly arbitrary.’ According to the notion of evident arbitrariness, a law is plainly arbitrary and incompatible with the right to equality if it is made without a sufficient guiding basis and is excessive or disproportionate in nature.

Awasthi further asserts that the amendment violates the right of dissent, which is an integral part of freedom of speech. To emphasise the value of free expression and the related freedom to dissent, they cited the rulings in Romesh Thappar v. State of Madras (1950) and Maqbool Fida Hussain v. Rajkumar Pandey (2008).

The Amendment has been heavily criticised since it grants the Union Government broad and unlimited authority to arrest people without going through the proper channels. The Supreme Court declared in the infamous Justice KS Puttaswamy v. Union of India (2018) case that the right to life and personal liberty (Article 21 of the Indian Constitution) can only be abridged if the due process is followed properly. Article 20 of the Indian Constitution refers to the internationally recognised principle of ‘Presumption of Innocence’ or ‘Innocent till Proven Guilty,’ which does not apply to the designated terrorist under UAPA.

Concerns/Criticism

The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
The opposition voiced concerns about the amendments, saying the provisions were against the federal structure of the country enshrined in the Constitution of India.
There was no pre-legislative consultation.
Designating an individual as a terrorist raises serious constitutional questions and has the potential for misuse.
An individual cannot be called a ‘terrorist’ prior to conviction in a court of law, It subverts the principle of “innocent until proven guilty. A wrongful designation will cause irreparable damage to a person’s reputation, career and livelihood.

K.A. Najeeb v. Union of India (2021)

The Supreme Court concluded in Union of India v. K A Najeeb (2021) that, despite the UAPA’s restrictions on bail, constitutional courts can nevertheless grant bail if the accused’s fundamental rights have been violated. The accused had been detained at Najeeb for more than five years. The Court found that the rigours of UAPA bail limitations “will melt down where there is little chance of a speedy trial and the duration of detention already served has exceeded a substantial portion of the stipulated sentence.”

The Delhi High Court carried this logic a step further in Asif Iqbal Tanha v. State of NCT (2021), saying that courts should not wait until the accused’s right to a speedy trial has been completely revoked before releasing them. Courts should have foresight, especially in situations involving hundreds of prosecution witnesses and a trial that would take years to complete. Courts should adopt the Najeeb principles.

However, the differing outcomes in cases like Asif Tanha and Mohammad Gaus highlight the disparity in access to legal remedies like those provided by Najeeb. Mohammad Gaus indicated that he was unaware that the NIA had filed an appeal and obtained a stay against his bail decision in the Supreme Court after he was freed on ordinary bail in July 2019. Even when accused persons have access to legal counsel, UAPA jurisprudence frequently leads to outrageously unjust conclusions, such as the Supreme Court’s recent home arrest decision in Gautam Navlakha v. NIA (2021). The Supreme Court ruled that home arrest was judicial custody, but it refused to recognise Navlakha’s days in house arrest as custody for the purpose of granting him default bail. In a related case, the Supreme Court’s vacation bench recently ruled that the Delhi riots bail judgments should not be considered precedent until the state’s appeal against the judgments is resolved.

FAQs

What is the Unlawful Activities (Prevention) Act (UAPA)?

The Unlawful Activities (Prevention) Act (UAPA) is a law enacted by the Government of India in 1967 to prevent unlawful activities and associations that threaten the sovereignty, unity, and integrity of India. It is also used to combat terrorism and activities that promote secession or disruption of public order.

What is considered an "unlawful activity" under the UAPA?

Unlawful activities include actions or speech that threaten the sovereignty and integrity of India, cause disaffection against the country, or promote secession. This also includes supporting, funding, or being associated with organizations or individuals involved in terrorism.