Why in the
news?
The Supreme court granted bail to
activists accused in the Bhima-Koregaon case citing that ‘mere holding of
literature propagating violent acts or participation in seminars will not
constitute a terror act’ under UAPA,1967.
Bhima-Koregaon case: · Bhima-Koregaon is a small
village in Maharashtra, which marked the defeat of Peshwa army headed by
Peshwa Bajirao II by a Dalit-dominated British army on January 1, 1818. · The victory was marked by
erecting a pillar called Vijay Sthamb (victory pillar) by the East India
Company for those who fought for them in the battle. · This incident is considered
by the Mahars, the Dalit community as “Dalit
affirmation against Brahminical tyranny” and a “symbol of Dalit pride”. · Dalit
groups commemorated the Bhima-Koregaon battle on January 1 every year where
numerous people of Dalit descent would come to pay their respect. · The 200th
year of the battle was commemorated in 2018, witnessed by an extensive
gathering of people. · Unfortunately,
violent altercations broke out between Dalit and Maratha groups during the celebration,
leading to the death of an individual and injuries and damages to many
others. · The start
of the animosity simmered when destruction of Govind Gopal Mahar’s memorial
was discussed in a major public conference held on December 31,2017. · After the violence, cases
were registered for “provocative speeches” made in the public conference
held, with all the accused activists were detained, the investigation taken
over by NIA and booked under UAPA,1967 and IPC sections Ø 153 A (promoting enmity between groups), Ø 505 (1)(b) (with intent to cause, or which is likely
to cause fear or alarm to the public). Ø 117 (abetting commission of an offense by the
public or by more than ten persons). Ø Section 13 (unlawful activities), Ø Section 16 (terrorist act), 18 (conspiracy), Ø Section 18B (recruiting of any person or persons for
the terrorist act), Ø Section 20 (being a member of a terrorist gang or
organisation) and Ø Section 39 (offence relating to support given to
terrorist organisations) of the UAPA.
|
What are the
provisions of UAPA, 1967?
·
Prior to UAPA
amendment 2004, terrorist activities were dealt by the now repealed
1) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
2) Prevention of Terrorism Act, 2002 (POTA)
·
UAPA Amendment,
2014:
The 1967 anti-terror law was amended in 2014 by introducing a dedicated Chapter
(Chapter IV) towards punishing terrorist activities and empowered the
National Investigating Agencies and the state agencies.
·
The Unlawful Activities (Prevention) Amendment Act, 2019
Section 35 of UAPA was amended this provision to allow
the government to categorise individuals as terrorists besides earlier
provision of categorising organisations only as terror groups. Once the person
is so categorized, their name will be added to Schedule 4 of the Act, a step to
tackle terrorism and Naxalism in the country.
Provisions of the Act:
1) Indulgence of an individual in “unlawful activities” shall attract a
punishment of imprisonment extending to 10 years, and for which an association
could be declared unlawful.
2) The Unlawful activities shall include, any activity
a. which is intended or supports any claim to bring about on any ground
whatsoever the cession of a part of
the territory of India from the Union or
which incites any individuals to bring about such cession or
secession;
b.
which disclaims or
questions the sovereignty of India in respect of any part of the territory of
India
c. which disrupts or is intended to disrupt the integrity of India
3) Any Indian or foreign national charged under UAPA
is liable for punishment under this Act, irrespective of the location of
crime/offense committed
4) UAPA will be applicable to the offenders in the
same manner, even if the crime is committed on foreign land, outside India.
5) Under Section 43D of the act, an accused can be
detained under Police custody for 30 days and under Judicial custody for a
period of 180 days without filing a chargesheet.
Challenges
associated with the act:
1)
Low rates of convictions accompanied
by large number of cases filed under UAPA over the years.
o National Crime Records Bureau (NCRB) that in 2019,
1,226 cases were filed under the UAPA, a 33 per cent increase from 2016 with the
average conviction rate over the five-year period (2015-2019) is 2.19%
2)
Violation of Fundamental Rights of the
citizens:
o An individual may be identified as a terrorist without
any judicial scrutiny and even before the commencement of a trial. Thus, it is
violative of
§
Right to equality
(Article 14)
§
free speech (Article 19)
§
Right to Life (Article 21) with
Right to Reputation being an integral aspect of it.
3) “Manifestly arbitrary” provisions and a very broad
definition of “unlawful activity”.
The
definition of ‘unlawful activity’ includes ‘disaffection against India’ which
does not have a defined meaning under the Act and can be used to target anyone
or curb popular dissent.
4)
UAPA offers the State
“excessive and overwhelming powers to act against groups and persons” who
criticise “the governing party or majoritarian attitudes.
5)
Inclusion of ‘criticism of
the government’, even though it might not pose a threat to the public
order, security, sovereignty, or integrity of India, gives a wide
discretion for the application of the law.
·
This has been completely
divorced by the act.
·
The law’s total ban on
anticipatory bail and the very impossible task of obtaining normal release
under it had a “chilling impact” on the right to free speech.
·
Great power entitled by the
provisions of the UAPA, needs to be exercised with great responsibility and
restraint to ensure that the protection of constitutional rights of individuals
are not given due consideration and importance due to arbitrary action.
·
constitutionality of Section
43D, which mandates that a person shall not be released on bail if the court is
of the opinion that there are reasonable grounds for believing that the
accusation against a person is “prima facie” true is questionable since the Act
is not a law enacted for preventive detention.
Supreme Court
verdicts on the Act:
·
Court had held
that ‘mere membership of a banned organisation 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’.
2) Thwaha Faisal
Case, 2021:
·
Mere membership or support to a terrorist
organisation cannot be considered an offence.
·
Allegations of conspiracy based ob behaviour
of the individual or possession of material is not enough to file a charge
sheet against the accused.
3) Asif Iqbal
Tanha case (2021):
·
UAPA is meant to apply only
to exceptional cases and not as substitutes for ordinary penal law
·
A distinction should exist
between the state of exception and the state of normalcy
·
The state’s action to
confuse “protest” for “terrorist activity” was criticised by the judiciary.
·
The word “terrorism” has to
be given a specific meaning that distinguishes it from offences that are dealt
with under ordinary law.