How Lawful Is The Unlawful Activities (Prevention) Act?

by Nafia Zahoor

The Act needs to be amended, to ensure the avoidance of its misapplication, ensure its judicious use and ensure that a constitutional functionary, who is independent of the executive, is in charge of sanctions for prosecutions and investigations under this law.

A December 2020 photograph showing a young man arrested after police recovered two grenades from his possession. Pic: Jammu and Kashmir Police

The unlawful activities (prevention) Act, 1967 has its origin deeply rooted in the draconian colonial laws that were enacted by the British Government in India, just to crack down on the nationalist sentiments of the Indian populace.

The evolution of the Unlawful Activities (Prevention) Act (UAPA) has to be seen in the background of a gradual but steady constriction of Article 19, which guarantees the fundamental freedoms of expression, assembly and association. A major step in the abridgement of the freedom of expression, assembly and association occurred in the shape of the 16th amendment in 1963.

Further ‘reasonable restrictions in the interest of the sovereignty and integrity of India’ were amended to Article 19 (2). This amendment occurred in the immediate wake of the Sino-Indian War, as well as the threat posed by the DMK contesting elections in Tamil Nadu with secession from India being a momentous part of their manifesto. It was in this background that the UAPA was enacted on December 30, 1967, to satisfy the need of the Indian state to declare associations that sought secession from India as “unlawful”.

POTA In UAPA

In this way, the UAPA gave powers to the central government to impose All-India bans on associations. The process of banning associations could simply be done by the government announcing them as “unlawful” under section 3 of the Act. Again in 2004, amidst the public convulsion against the misuse of the Prevention of Terrorism Act (POTA), the then Congress government repealed the POTA, fulfilling their election promise. But at the same time, all those provisions rescinded in the form of POTA were successfully indemnified in the then major amendments made to the UAPA. Substantial changes were made to UAPA such as changes in the definition of “unlawful activities”, the inclusion of the definitions of “terrorist act” and “terrorist organisation” from the repealed POTA, and also the introduction of the concept of a “terrorist gang”.

In fact, chapters IV, V and VI dealing with “punishment for terrorist activities”, “forfeiture of proceeds of terrorism” and “terrorist organisations” respectively, were heavily borrowed from the repealed POTA. The schedule to the POTA related to “terrorist organisations” altogether was also incorporated into the UAPA verbatim, and most importantly the “sunset clause” that was earlier a part of so-called anti-terror Acts like Terrorist and Disruptive Activities (TADA) and POTA was done away within the amended UAPA.

Even if one were to buy the “desperate times call for desperate measures” logic, where a restriction on fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA. Veritably, the justification for the inclusion of a sunset clause in previous unwonted acts like TADA is that when there is a drop in the perceived threat, there would be no need for the legislation. Also, unlike PDA (preventive detention act), the UAPA has discarded the periodic review clause, thus making it valid indefinitely, unless repealed by the Parliament. By and by, recurrently, more amendments were moved and adopted to the UAPA, one following the 26/11 Mumbai attack, regarding the maximum period in police custody (for up to 30 days), incarceration without a charge sheet (for up to 180 days), and restrictions on bail were incorporated into the UAPA. The 2012 amendments to the UAPA further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.

Continuous Amendments

Perpetual amendments were made to the UAPA according to the whims and fancies of the Government of the day, facilitating the law to criminalise a broad spectrum of activities, which the government of the day found inconvenient. As a preventive detention law, UAPA has been misused rampantly and has led to politically motivated detentions and human rights violations. Speaking of contemporary India, there has been a nationwide misuse and misapplication of the Act, by the officials and authorities in charge. According to the data provided by the Ministry of Home Affairs in Parliament in March 2020, a total of 1126 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015, with a conviction rate of less than 2 per cent.

In Jammu and Kashmir

After extensive misuse of the provisions of the Preventive detention Act (PDA), AFSPA, POTA, TADA, in the past 30 years, there has also been a wide misuse of UAPA against the people of Jammu and Kashmir within and outside the Union Territory.  Out of the 796 UAPA cases registered in the country in 2020, the maximum number was from Jammu and Kashmir (287).

This caution is significant with respect to the recent detentions of the medical students for mere cheering for the Pakistani cricket team in the recent ICC T20 world cup. The term “unlawful activities” is so vaguely defined in the Act that the authorities can slap UAPA, detain and designate as “terrorist” on any individual, for any insignificant act of mischief that nudges the Government of the day.

Slapping individuals with the provisions of UAPA has become so trivial in Jammu and Kashmir that even those who show solidarity with the people of Palestine, those who express dissent towards the government of the day are being designated as “terrorists” and the act so committed, as an “Act of terror”, under the Act. The prevailing circumstances in Jammu and Kashmir, and all over the country as well, insinuates that the De Facto intendment of the Unlawful Activities (Prevention) Act,1967 is mere incarceration of individuals and associations who do not concur with the ideologies and ways of operating of the government of the day.

India’s security laws framework is supposed to salvage the sovereignty, integrity and security of the nation and not to throw book at just any individual or association that does not see eye to eye with, or exercises their right to dissent, against the Government of the day.

Way Ahead

The anti-terrorism law is needed in India. However, its enforcement will always result in some draconian anomalies. The existing UAPA does have some effective provisions to combat terrorism (cognizable offences), but there are also some defects and demerits, which need to be rightly addressed to make the law effective and efficient to prevent and combat terrorism. The Act needs to be amended, to ensure the avoidance of its misapplication, ensure its judicious use and ensure that a constitutional functionary, who is independent of the executive, is in charge of sanctions for prosecutions and investigations under this law.

“Terrorism and unlawful activities are ones that always create political issues. If the Act has to work, its application must, at all times, look apolitical “.

(The author @NafiaZahoor is a lawyer at the Jammu and Kashmir High Court in Srinagar. The opinions expressed in this article are those of the author’s and do not purport to reflect the opinions or views of Kashmir Life.)

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