HomeLegal ColumnsAn Analysis of Unlawful Activities Prevention (Amendment) Act, 2019 through the prism...

An Analysis of Unlawful Activities Prevention (Amendment) Act, 2019 through the prism of Constitutional Values

Introduction

“It is the prime responsibility of every citizen to feel that his country is free and to defend his freedom is his duty”

– Sardar Vallabhbhai Patel

The Unlawful Activities Prevention Act (hereinafter ‘UAPA’) was first introduced in the year 1967 centered on authorizing the government to designate organizations as unlawful and further criminalized the unlawful activities being carried out by these organizations. Further an amendment was brought about in 2004, to bring within the ambit of the Act, terrorist activities which were termed criminal and yet again the government was empowered to ban these terrorist organizations for the purpose of national security. With the amendment act of 2019, UAPA has been refurbished yet again and this time it has brought with it various controversies and disagreement with questions being raised against it failing to protect the rights of an individual guaranteed by the Constitution of India. It has been termed, at multiple occasions as a draconian law forwarding the U.S. concept of McCarthyism. It is inarguably vital to fight out the evil of Terrorism which requires the imposition of strict laws yet it also crucial to identify the thin line that exists between national security laws and its overbearing effect on protection of human rights. The main highlights of the act which are also the sensitive points are; firstly, it entitles the center with an absolute power to declare an individual as a terrorist who renders unmitigated power with the center which is arbitrary in nature and against the tenets of Rule of Law. Secondly, it gives National Investigating Agency an unwarranted power to take control of such cases falling under UAPA which would have been otherwise under the jurisdiction of the police of each state which organically leads to centralization of powers as a result of shift in power. The imbalance thus created is the very antithesis of the federal structure of the Indian Constitution as was opined by our constitutional makers.

The author through the means of this study intends to assess the impact of the newly conceived UAPA Amendment Act of 2019, whether it is a good or a bad law? The same will be achieved through case studies that will be taken up during the course of the analysis, to name some; the Bhima-Koregaon case, Devangana Kalita and Natasha Narwal (members of the women students and alumni collective Pinjra Tod) in Kashmir, Khalid Saifi (United Against Hate), Jamia Millia Islamia student Safoora Zargar and the recent arrest of Umar Khalid etc.

Breaking down UAPA

The Unlawful Activities (Prevention) Act, 1967 is an upgraded version of the Terrorist and Disruptive Activities (Prevention) (TADA) which lapsed in 1995 and the Prevention of Terrorism Act (POTA) which was repealed in 2004. The Unlawful Activity (Prevention) Act, 1967 (hereinafter ‘UAPA, 1967’) is the current parent counter-terrorism legislation in the Indian legal context which seeks to prevent ‘unlawful’ activities being carried out by individuals and associations. The main intent this piece of legislation aims to fulfill is; firstly, to empower the Indian executive and various other organs of the government machinery to be able to achieve national security for its citizens and secondly, for India to accept its international obligations viz. a) to realize the transnational nature of terrorism and b) the growth of cyber terrorism rendering it as a global threat, for the purpose of which exists a duty on behalf of India to bring in domestic legislation supporting the international treaties and conventions it has ratified.[1] This infamous piece of legislation which has often been termed ‘draconian’ by the ones who oppose it has undergone various reforms since it was first introduced with the recent and the most controversial one being The Unlawful Activities (Prevention) Amendment Act, 2019 (hereinafter ‘2019 Amendment Act’). The bill was passed on 8th August 2019 by the parliament even though it couldn’t garner any support from the opposition and was also criticized by many for violating various constitutional values, rights of individuals and in general for being a vulnerable legislation susceptible to misuse and misinterpretation.

Where does the lacuna lie?

Social Contract theory as was advanced by the great English philosopher Thomas Hobbes who also if one of the founding fathers of this theory has given a very systematic philosophical reasoning to it. Hobbes states that “it is natural and rational for people to give up some liberty in order to gain security of self-preservation, the condition in which people give up some individual liberty in exchange for some common security is the Social Contract”[2] Giving up liberty in exchange of security[3] forms the basic tenet for Hobbes’s take on the social contract theory. This very genesis gives rise to the classic dilemma and the existence of this tussle between the importance of upholding the individual rights and states obligation to provide security to its citizens. So questions like- Up to what extent is an individual required to surrender his/her rights in favor of the government? How much protection is required by the people? To what extent are the governments empowered in this respect? Et al. These are the irregularities that require to be creased out and gaps that need to be abridged for upholding the constitutional values as was intended by our constitution framers and at the same time protecting the larger interest of the society as a whole.

The answer to this irregularity lays in the concept of ‘due process of law’ as was opined in Maneka Gandhi v. UOI, 1978[4] which means that ‘unless according to the procedure established by law’ under Article 21 of the Constitution of India actually meant ‘due process of law’ as is present under the 5th Amendment of the U.S. Constitution which requires the law to be just, fair and reasonable.

The intent behind amendment (also arguments for it+against)

The legislative intent behind the amendment was broadly two fold; firstly for the purpose of resolving various practical difficulties faced by the acting authorities while dealing with ‘unlawful’ offences under the parent act which also meant empowering the authorities for this purpose and secondly, to further mould the parent act into an intolerant legislation in order to tackle the menace of terrorism which remains to be one of the biggest threats to humans globally.

Salient features of the Amendment

Under UAPA, 1967 2019 Amendment Act
1)    Who can commit terrorism Designation of organization as terrorist. Designation of individuals as terrorists.
2)    Approval for seizure of property by NIA Investigating officer is required to obtain approval of DGP. When investigating officer is that of NIA, the approval of DG of NIA is sought.
3)    Investigation by NIA Investigation conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police and above. Investigation conducted by officers of the rank of Inspector and above.
4)    Insertion to schedule of treaties Terrorist acts also include those defined under the treaties listed in the act. A total of nine treaties listed. Addition of International Convention for suppression of Acts of Nuclear Terrorism (2005).

 

The above table aims at providing a clear distinction between the principal act and the provisions inserted through the 2019 amendment.

A progressive step towards curtailing terror

“Only the wearer of the shoe knows where it pinches”

Firstly, the amendment made changes so as to designate ‘individuals’ as terrorists by amending Section 35 and 36[26] of the parent act which originally only empowered the government to declare ‘organizations’ as terrorist for carrying out ‘unlawful’ activities. The need for this provision was much appraised by Mr. Anil Chowdhry, Former Secretary, Internal Security, Ministry of Home affairs (MHA). He also further highlighted that without the insertion of this particular provision it would’ve been impossible for the government to designate ‘lone wolves’[6] who don’t necessarily operate under any organization, as terrorists. He also cited some examples from across the globe where the perpetrator was mainly an individual for example- the Christchurch mosque shooting in New Zealand and the London bridge attack.

Secondly, the amendment act has made changes to Section 43 of the principal act under which post the amendment even an officer of the rank of an Inspector under NIA can conduct Investigation. This change was indeed a practical one as was enumerated by Mr. Navneet Wasan, Former DG, NIA because NIA was always short of DSPs, instead, more number of Inspectors were present which led to a real legal difficulty as prior to the amendment an Inspector was not empowered to conduct investigation[7] and the 2019 amendment act provided for that proviso as well. This particular amendment was also commented upon by Mr. Anil Chowdhry, he emphasized on the fact that the Inspector does not and will not have the final say in the investigation as this declaration by him will be further scrutinized by the tribunal and whether or not there is a sufficient cause to believe this declaration will be up for judicial scrutiny which acts as a safeguard for those designated under the Act, the right to appeal will exist too.

Further the amendment brought to Section 25 of UAPA, 1967 which mandated the prior approval of DG of NIA by the investigating officer to conduct investigation was also explained by Mr. Navneet Wasan on practical grounds as he stated that many a times there have been instances of states refusing to attach property in cases of investigation that were referred to NIA by the state itself[8] which meant that it became extremely necessary to give some amount of unrestricted power to NIA in order to maintain its individuality as a national agency in order to ensure uninterrupted performance which in turn would yield better results.

It is also pertinent to point out here that for such an amendment to be a success it becomes extremely important for states to not let its personal political ideology come in the way, the interest of the ruling party should be set aside and neither should center take undue advantage of its position and interfere in state duties by carrying out unwarranted acts. The fundamental value of co-operative federalism should be observed wherein the state and central government work together to tackle the issue of terrorism which affects India as a whole rather than in parts.

Followed by the amendment, individual terrorists were identified by adding their names to Schedule 4 of the UAPA, 1967 such as Maulana Masood Azhar, Hafiz Muhammed Sahib, Zaki-ur-Rehman Lakhvi and Dawood Ibrahim Kaskar.[9]

Square peg in a round hole: Why the amendment fails

The persisting gray area

United Nations Special Rapporteur on protection of human rights and fundamental freedoms while countering terrorism provided for a comprehensive definition of terrorism which stated; “The specificity of terrorist crimes is defined by the presence of three cumulative conditions: (i) the mean used, (ii) the intent, and (iii) the aim, which is to further underlying political or ideological goal.”[10] The void that exists in the definition of Terrorism under the UAPA due to its loose interpretation under the Act has led to the creation of an extremely hospitable environment for violations to take place in. This vagueness leads to UAPA encompassing under its ambit a large range of activities being carried out; it fails to distinguish many ordinary crimes that shouldn’t be subject to such draconian treatment. Also as far as ‘sufficient proof’ to designate an ‘individual’ as a terrorist by the government is concerned under the garb of this legislation, it adds to the larger gaping hole that exists by not providing any kind of definite means to legitimize this process.

The ‘repressive’ amendment vis-à-vis recent examples

Bhima Koregaon case: procedural ineptness leading to abuse

The Hon’ble Supreme Court of India (SCI) in Romila Thapar v. Union of India[11] decided upon whether or not the arrests of 5 human rights activists under UAPA Act carried out by the Maharashtra Police were impartial and subject to probe by SIT. The five activists namely; Sudha Bhardwaj, Vara Vara Rao, Vernon Gonzalves, Gautam Navalakha, and Arun Farreira were alleged of being responsible for the Elgaar Parishad back in 2018 which had resulted in the Bhima Koregaon violence and sedition case. Claims were also laid against these activists of being a part of the banned Communist Party of India.

A joint petition was filed by various eminent personalities including historian Romila Thapar at the Supreme Court challenging the manifest arbitrariness in the way which the arrests were conducted by the Maharashtra Police, to curb dissent which had violated various individual rights of the activists including the right to equality before the law (Article 14), free expression (Article 19) and personal liberty (Article 21)[12]. They emphasized that the activists had been booked under the draconian UAPA. Further, they claimed that the Maharashtra Police had made serious procedural lapses during the raids.[13] On 28th September, the Court in its 2:1 majority judgment disallowed probe by SIT and Maharashtra Police’s investigation was given a green signal to proceed with the investigation, uninterrupted.

Justice DY Chandrachud was the only one who gave a separate and dissenting judgment; “Our recent decisions reiterate the value of individual dignity as essential to a democratic way of life. But lofty edicts in judicial pronouncements can have no meaning to a citizen unless the constitutional quest for human liberty translates into securing justice for individuals whose freedom is under threat in specific cases.”[14] He further emphasized the need to constitute a SIT to conduct a court monitored investigation as there existed a sufficient doubt that had been cast on the impartiality of the Maharashtra Police.

Constitutional validity case

The most significant and also the most contentious change brought about by the 2019 Amendment Act was that it amended Section 35 and gave the Central Government the power to designate an individual as a ‘terrorist’ under the Act one of the reasons of its criticism was that it designated immense arbitrary powers at the disposal of the executive which organically made it prone to misuse. Critiques also argued that due to this unwarranted and unchecked declaration of power to the executive an individual’s right to due process of law, right to dissent, and right to reputation could severely be injured.

For the purpose of addressing this very loophole, two separate petitions were filed in the Supreme Court; i) Sajal Awasthi v. Union of India[15] and ii) Association for Protection of Civil Rights v. Union of India[16], both challenging the constitutional validity of the Amendment on the grounds of it posing a threat to the constitutional values of India, were tagged together by the Court for the purpose of hearing. The overarching argument of both Petitioners is that an individual being identified as a terrorist without any judicial scrutiny and even before the commencement of a trial is against the principles of natural justice.[17] Thus, they challenge the Amendment Act as being violative of the right to equality before the law (Article 14), free expression (Article 19) and personal liberty (Article 21), similar to that of the Bhima Koregaon Controversy.

As per the Awasthi petition, the right to equality is violated since the provision does not provide any detailed grounds based on which one may be categorized as a terrorist.[18] For this reason, the provision is ‘manifestly arbitrary’.[19] ‘Manifest arbitrariness’ forms the very antithesis of right to equality guaranteed under Art.14 of the Constitution of India. It was further argued that this amendment was gag on the right to dissent, which is a facet of the right to freedom of speech.[20] The Hon’ble SC had opined as follows in Romesh Thappar v. State of Madras[21] and the Delhi High Court in Maqbool Fida Hussain v. Rajkumar Pandey[22] which was reiterated the present case –

“…The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.”

One of the other grounds for filing this petition was that it infringed upon the Right to life and liberty (Art. 21) of an individual who can potentially be designated as a terrorist. It is well established that Art.21  within its wide ambit also includes the ‘right to reputation’ which means not only does one have the right to live but also to lead a life of dignity. Sajal Awasthi v. Union of India[23] claims that the right to reputation is an integral aspect of right to life and this right will be taken away by the arbitrary exercise of powers under Section 35.[24]

Umar Khalid case: when students become targets

A large majority of alleged and jailed persons involved in the Delhi riots case include young students and scholars who have been slapped with charges of conspiracy under UAPA. Those jailed include five women, all under the age of 31 years, three of them — Natasha Narwal, Devangana Kalita and Safoora Zargar — are students; Ishrat Jahan is a lawyer; and Gulfisha Fatima is an MBA graduate and aspiring teacher.[25]

Umar Khalid, PhD, Jawaharlal Nehru University is one amongst the several young activists who have been engulfed by the stringent measures under UAPA as he was alleged to be a part of the violence which took place earlier in February in the capital. Various provisions under UAPA have been invoked by the police to investigate the alleged “larger conspiracy” behind the riots. This is worrisome because whether guilt will be proven or not, Umar Khalid, Sudha Bharadwaj and many other leftist comrades like them whose only crime is that they fearlessly opposed governments in courts while defending their clients[26] won’t be granted bail easily after the Hon’ble Supreme Court’s decision in National Investigation Agency v. Zahoor Ahmad Shah Watali[27] in which the Court held that bail under section 43D(5) of the Unlawful Activities Prevention Act (UAPA) can be denied by relying upon prosecution documents even though they would be inadmissible in evidence during the trial. [28]

Public participation is essential to policy making in democracies, as it captures dissenting views and helps establish conduits of transparency and expanded understanding.[29] In this context it becomes extremely important to recognize the role of political dissent, especially from those who are impacted by an action of the government. To accept political dissent as constructive criticism and to resolve issues that demand to be resolved should be the kind wholesome decision making process a government should thrive to inculcate in order to uphold its constitutional values.

Other instances of views of the courts

There have been multiple instances from the past where the validity of various anti-terrorism legislations have been challenged, some of them include-

The validity of the Union’s legislative authority to enact these laws which come under the ambit of state list was challenged on the grounds of federalism.

In Kartar Singh v. State of Punjab[30], validity of TADA was one of the main the point of contention and the same was challenged on the grounds that the issue of ‘public order’, which was under the legislative domain of states, was wrongly exercised by the union. Interference of union in a state subject is the very anti-thesis of Federal structure of governance. The Hon’ble Supreme Court upheld the validity of TADA and opined that ‘public order’ covers issues of lesser gravity and more serious threats that are covered in TADA fell within the Union’s domain such as national defense.

Further in POTA in PUCL v. Union of India[31], a similar question was raised which was denied by the Court on similar grounds.

As far as UAPA  is concerned the Court in Sri Indra Das v. State of Assam[32], read down Section 10 of UAPA and Section 3(5) of TADA, both of which made mere membership of a banned organization, criminal. The Court held that a literal interpretation of these provisions would make them violative of Articles 19 and 21 of the Constitution. Which was also previously held in Arup Bhuyan v. State Of Assam[33] where the Court had held that; ‘mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence’.

The way ahead

Where issues like threatening national security, waging war against the state and also conniving against destructing the peace of the government are an unabashed and a despicable acts, one doesn’t get christened a ‘terrorist’ just because she is speaking against the deplorable state the government is in. Since no man is an island, no one is a terrorist just because of some isolationist reason. A whole admixture of extremities will make you even think about acting in a hateful manner. Our schools and universities are based on experiencing hedonism and not nihilism towards other human emotions. We are told to question everything and do not come with premeditated answers impregnated by the higher authority in our minds. Vices are not crimes and people are not terrorists just by the virtue of them going a bit astray from their right to speak up.

The fiery nature of Balgangadhar Tilak is not venerated because of his valour solely, but to add to it, his nature of speaking freely against a government who took him for a terrorist. On Balgangadhar Tilak’s hundredth death anniversary, one is bound to reminisce with a sense of utmost pleasure and pride that it was his ultimate faith in truth ( both in action and thought) that gave him the courage to take on the entire empire of colonialists. Tilak’s two trials, if not for anything else, at least proved that suppressing widespread public protest and strong-arming the citizenry can prove to be counterproductive. Maybe Big Brother is watching us but can he say the immense fabric of truth laced with the right to speak freely?

The UAPA Amendment of 2019 is a fairly new piece of legislation which requires thorough readings and suggestions from historians, scholars, judges, citizens, etc. to be judged this early. Where the author thinks that facets like identifying people acting individually to topple a system as terrorists is a progressive step, the implementation part since its formulations has gone awry, as already taken up via the aforementioned case studies.


[1] The Unlawful Activities (Prevention) Act, 1967.

[2]At,https://oregonstate.edu/instruct/phl201/modules/Philosophers/Hobbes/hobbes_social_contract.html

[3] Ibid.

[4] Maneka Gandhi v. Union of India, 1978 SCR (2) 621.

[5] The Unlawful Activities (Prevention) Amendment Act, 2019, s. 35 and 36.

[6] At, https://www.youtube.com/watch?v=Xr_Q_bBPZg0

[7] At, https://www.youtube.com/watch?v=Xr_Q_bBPZg0

[8] Ibid.

[9] Maria Binny Palamattom, “A Critical Analysis of The Enforcement of UAPA (Amendment) 2019”, Medium, 2019.

[10] Tarique Anwar, “’Unlawful’ Amendment to UAPA 2019; A Brief Analysis”, Newsclick, 2019.

[11] Romila Thapar v. Union of India, WP (Cr) No. 260 of 2018.

[12] At, https://www.scobserver.in/beyond-the-court/uapa-challenge-a-brief-history

[13] Ibid.

[14] Romila Thapar v. Union of India, WP (Cr) No. 260 of 2018.

[15] Sajal Awasthi v. Union of India, WP (C) 1076/2019.

[16] Association for Protection of Civil Rights v. Union of India, WP (C) No. of 2019.

[17] Ibid.

[18] Id.

[19]At,https://scobserverproduction.s3.amazonaws.com/uploads/case_document/document_upload/1215/Sajal_Awasthi_v._Union_of_India.pdf

[20] Id.

[21] Romesh Thappar v. State of Madras, 1950 AIR 124.

[22] Maqbool Fida Hussain v. Rajkumar Pandey, 2008 Cri. L. J. 4107.

[23] Sajal Awasthi v. Union of India, WP (C) 1076/2019.

[24]At,https://scobserverproduction.s3.amazonaws.com/uploads/case_document/document_upload/1215/Sajal_Awasthi_v._Union_of_India.pdf

[25] Harsh Mander, “Umar Khalid’s arrest shows the future of dissent in India only gets darker from here”, The Print, 2020.

[26] Colin Gonsalves, “It is unjust that refusal of bail to Sudha Bharadwaj is based on inadmissible evidence”, The Indian Express, 2020.

[27] National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 SCC Online SC 461.

[28] Colin Gonsalves, “It is unjust that refusal of bail to Sudha Bharadwaj is based on inadmissible evidence”, The Indian Express, 2020.

[29] Gerston LN., Public Policymaking in Democratic society: A guide to civic Engagement, Routledge, London, 2014.

[30] Kartar Singh v. State of Punjab, 1994 SCC (3) 569.

[31] PUCL v. Union of India, Writ Petition (C) 389 of 2002.

[32] Sri Indra Das v. State of Assam, (2011) 3 SCC 380.

[33] Arup Bhuyan v. State of Assam, (Cr) No. 889 of 2007.

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Law Wire Team
Law Wire Teamhttps://lawwire.in/
Law Wire Team attempts to delve into pertinent (and sometimes not immediately pertinent) questions regarding socio-politics, Law and their interesting matrix.
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