Unlawful Activities (Prevention) Act, 1967

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.

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·         Prior to UAPA amendment 2004, terrorist activities were dealt by the now repealed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.

6)     Stringent Bail Provisions:

Golden thread of common law criminal jurisprudence: a person is innocent until proven guilty

      ·         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:

1)      Arup Bhuyan’s case

·         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.