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UAPA And Its Amendments Pose An Incredible Threat To Democracy. Here’s Why The Law Needs To Go

They go against the basic tenets of the criminal justice system — "innocent until proven guilty".

Enacted in 1967 by the Indira Gandhi-led Congress government, the Unlawful Activities (Prevention) Act, 1967 aimed to “provide for the more effective prevention of certain unlawful activities of individuals and associations“.

UAPA was later amended in 2004, 2008 and 2013 adding several chapters on terrorist acts and organisations to accommodate for the repeal of the Prevention of Terrorism Act, 2002. UAPA, in its current form (the Amendment Bill has not been assented to the President and has not been published in the official gazette), gives the Central Government the power to declare associations as unlawful, penalise persons for being members of “unlawful associations” or for participating in unlawful activities, notifying organisations as terrorist organisations and punishing persons for a host of terrorism-related activities.

What changes do the Unlawful Activities (Prevention) Bill, 2019 bring about?

The Amendment Bill, which has been passed in the Rajya Sabha,  proposes to bring about the following major changes in the UAPA:

  1. The Director-General of the National Investigation Agency (NIA) shall have the power to grant approval to officers investigating terrorism-related offences to seize and attach property. Before this, the approval was to be obtained from the Director-General of Police of the state in which the property is sought to be seized or attached.
  2. An expansion of the scope of powers of the Central Government, from declaring organisations as “terrorist” organisations to now have the power to declare individuals as terrorists and names of such individuals are to be included in a newly added Fourth Schedule. This power is subject to the same safeguards that existed before — application to the Central Government to be denotified, and further appeal to a review committee set up by the Central Government.
  3. With respect to investigations handled by NIA, officers of the rank of Inspector and above can investigate cases under UAPA. With respect to State Police, the rank required is that of Deputy Superintendent of Police or Assistant Commissioner of Police or above.
  4. Expansion of the scope of the definition of “terrorist act”, by adding the International Convention for Suppression of Acts of Nuclear Terrorism to the Second Schedule.

Why is UAPA dangerous?

There are several criticisms of the UAPA in the form before the Amendment Bill was even moved. These arise from the concerns regarding human rights and the divergence in procedural practices from the Code of Criminal Procedure (CrPC). For example, as opposed to a maximum period of fifteen days of police custody, UAPA provides for the maximum period to be thirty days. Similarly, the maximum period for which a person may be detained without filing a chargesheet is ninety days under the CrPC, and this period is one hundred and eighty days under UAPA. The bail provisions are extremely stringent, making it almost impossible for those charged under the Act to post bail.

Concerning declaring organisations as terrorist organisations, the burden of proof is reversed, since the organisations need to approach the Central Government first, and later a Tribunal, to prove their innocence. The process of declaring an organisation as such is without judicial process and only after such a declaration, does the organisation have any chance to contest allegations leading up to it. This goes against the basic tenets of the criminal justice system — “innocent until proven guilty”.

Further, there is severe misuse of the law.

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Statistics from the National Crime Record Bureau suggests that very few cases are actually sent to trial and even then, police often do not have the required evidence or witnesses to get a conviction under UAPA. In 2015, out of 76 cases in which trial was completed, the accused in 65 cases were acquitted. In 2014 there were 24 acquittals in 33 completed trials.

What are the issues with the Amendment Bill?

There are largely two concerns regarding the amendments to the UAPA. One is regarding federalism — a central agency, the NIA, getting powers over approval of seizure and attachment of property in states. Police is a subject under the State List in the Seventh Schedule, and under the same, only state legislatures are empowered to enact on the subject. Since seizure and attachment of property falls squarely under policing powers, regional parties have been protesting against taking over of this function by the NIA.

The second issue is concerning a person being declared to be a “terrorist” without due process, trial and application of judicial mind. This is violative of the basic tenet of “presumption of innocence until guilt is proven”, as well as the reversal of the burden of proof on the accused.

The designation of a person as a “terrorist” does not carry legal consequences in terms of automatic arrest, detention, etc. by the mere declaration of such a tag. Even without this amendment, the government has the power to launch investigations into and prosecute individuals on the basis of suspicion. Therefore, in terms of the law, the government will not be able to take any action over and above what it can against any person suspected, by attaching the tag of “terrorist” to a person. It is then questionable as to what the amendment would achieve.

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However, what follows such a label is immense loss of social capital, one’s image in the community, and ostracisation leading to social death of a person. Even if it is argued that such social death can also occur to persons who are tried by a court of law, convicted and then given such a label, it is important to recognise the importance the judicial involvement in this process. By circumventing the judiciary and labelling an individual a terrorist, the government is stripping one off of the primary tenets of the criminal justice system in our country — the presumption of innocence. Although the procedure of designation of organisations as terrorist organisations is similar, the designation of an individual as such seriously infringes on that individual’s dignity and personal freedom.

An underlying objective that any government can achieve with this amendment is deciding what ideology, literature and theory are promoting “terrorism”, and this power is dangerous to the idea of a democracy. It is important to note that Union Home Minister Amit Shah said the following in the Lok Sabha: “… there are those who attempt to plant terrorist literature and terrorist theory in the minds of the young. Guns do not give rise to a terrorist. The root of terrorism is the propaganda that is done to spread it, the frenzy that is spread.”

It has been observed that the UAPA is invoked against persons for subscribing to a particular ideology. GN Saibaba, a physically disabled, wheelchair-bound educator, was convicted by a sessions judge at Gadchiroli under Sections 13,18, 20, 38 and 39 of UAPA and Section 120B of IPC. The charge was allegedly having links with Maoist organisations. Saibaba’s lawyer Rebecca John said that there was no evidence that he had “any role to play in any violence, or incitement to violence, or any active participation at all,” and instead, he was accused of “promoting and propagating communist ideology.”

The UAPA in itself has been called draconian by human rights activists. However, the recent amendments to the statute have brought in concerns which constitutional experts are bound to challenge.

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