Disclaimer: You should stop reading the post if you don’t believe in constitution of India. The post does not endorse any hate towards any section of the ruling regime but examines the law ‘very’ critically.
UAPA (Amendment 2019) has been one of the most debated act in recent times perhaps most feared too. Let’s look at how this has been a reason for controversies and even unconstitutionality of the law.
The Unlawful Activities (Prevention) Act was first formed in 1967, under the directions given by the National Integration Council. UAPA was amended 6 times before the recent one in 2019. This law was formed such that the Centre had the power to ban organisations and punish its members if they indulge in activities under- Unlawful Activities(Writings,videos,audio,pictorial). Terrorist activities(Arms).
Therefore if anyone was part of these banned organisation, there was a legal process through which they will be trialled and if proved guilty by the prosecution(state representative), the court will label them as terrorist and they will be served with life imprisonment or death. Some of the banned organizations are the Communist Party of India (Maoist), Tamil Nadu Liberation Army, Hizbul Mujahideen.
There were two major anti-terror acts which were introduced and later repealed by the government at that time as they felt it had been misused. These were Terrorist and Disruptive Activities(Prevention)Act-TADA, Prevention of Terrorism Act, 2002-POTA.
Amendments that are controversial.
1. The Act empowers the central government to designate an individual a “terrorist” if the govt believes so. The govt is not required to give the individual an opportunity to be heard before such designation.
2. The NIA, unlike in the past, is not required to seek the permission of the respective state DGP to conduct investigations in a state. The investigating officer only requires the approval of the Director-General of NIA.
3. Allows the NIA officers of Inspector rank to carry out investigations. Earlier this only applied to officers on or above the Deputy Superintendent or Assistant Commissioner of Police of the NIA.
Arguments given in favour of the law by govt.
1.There are several other national powers which have their own laws similar to designating individuals as “terrorist”, then why not India.
2. Several individuals divert their finance and resource by making another organisation once their previous one is banned.
3. Like the attacker in the New Zealand mass shooting in 2019, where there are no organisations backing an individual’s action.
4. It has now become simpler for the NIA to carry out investigations without state political patronage.
Here is what one can do if charged under UAPA
1. File a petition to the central govt, which will probably be rejected because they designated the individual as a “terrorist”.
2. Within 30 days he/she can file another petition where a 4 member review committee will look into the matter. They will hear from both the sides of the case and give a judgement to reject or accept the petition. These members are cherry-picked by the centre.
3. Even then one can knock the doors of the Supreme court.
Arguments against UAPA
1. Similar to Maintenance of Internal Security Act (MISA) which was imposed onto the country during the emergency in 1976.
2. Against Right to life which includes a right to dignity and right to reputation(Article 21)
Eg:- When an individual is designated as a “terrorist” without trial, FIR, charge sheet, conviction or judicial process, there are grave consequences that the individual faces such as:-
You may not be arrested, there may not be a charge sheet, the property may not be confiscated but you are labelled as a “terrorist” which is the polar opposite to the “ procedure of law” followed by organisations like the UN. The law doesn’t have a framework. Along with this, there will be social boycott and mob justice who would take the law into their hands in order to achieve morality in the term of “national interest”. No one would dare to ask questions to the mob as it has been a case of killing a “terrorist”. This all could happen to innocents too. There have been several arrests of activists under this law, which now equates them to Masood Azhar and due to this their work and reputation are trampled down. So anyone that disagrees with the Centre can be designated as “terrorist” which would end up in the loss of dignity and reputation.
3. The burden of proof shifts from prosecution(the state) to an accused. So an individual has to prove the state machinery which is an immense task.
4. It is a violation of Article 21 as the state is tagging an individual as a “terrorist” before a trial and violates “procedure established by law”.
5. Violates Article 6 of the International Covenant on Civil and Political Rights.
Basically back to emergency days, ‘Na waqeel na daleel na appeal’
Here is why UAPA should be repealed.
1. The term “Unlawful activities” is so vague that several activists against the interest of the ruling party can be tagged as a terrorist(BHIMA KOREGAON CASE). Equating them to terrorists like Masood Azhar.
2. Membership” of an unlawful organisation hasn’t been defined and is vague.
Eg:- A researcher who covers on, let’s say, separatists in J&K or about Maoists in Jharkhand can be arrested as they happen to be holding literature of that organisation and participated in their meetings as part of the research. This is against the verdict of SC in 2011 case of Indra Das vs State of Assam, where only an individual who incites people to violence is a member of an organisation.
If you are covering anything you need to keep your phone clean. Does that hurt?
3. Absence of a bail. According to section 43(d)(V) of UAPA, if a charge sheet is produced against the accused and because the judiciary is convinced prima facie that he/she is guilty, then no bail is provided to the individual.
There have been many cases where activists, journalists and prominent members who work towards social upliftment have been charged under the draconian UAPA. It has been used as a tool to silence the dissent or to criminalize it. It has now become simpler, more than ever, for the centre to label anyone who disagrees with the Centre as “terrorist” and holds them in jail for months if not years till the tension in the society settles.
Having been through the legality and instances of how it has been enforced at certain citizens, What do you think? Does this law have the risk of being misused to silence dissent? Should the amendments exist? Should the law itself exist? Should we be scared of it?