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UAPA: THE THINNING LINE OF INNOCENCE

INTRODUCTION 

In the year of 1967, the enactment of “The Unlawful Activities Prevention Act” by the Parliament of India was facilitated by “National Integration Council”, which was directed by the then Prime Minister, to frame a law for tackling unlawful organisations and their activities. The 7th amendment of the Act was done in the year 2019. The most substantial ones were made in the year 2008 and 2013 respectively.  Unlawful activity includes under its ambit such activities which through submission of the exhibition, or by words written, or spoken, through portrayal or indication threatens to disrupt the unity, integrity and sovereignty of India, or which threatens to result in alienation against the State.

BRIEF OBJECTIVES OF THE ACT

The Unlawful Activities (Prevention) Amendment Bill, 2019” was introduced in the Lok Sabha, by the “Minister of Home Affairs – Mr Amit Shah” on the 8th of July, 2019. This Bill was able to amend the “Unlawful Activities (Prevention) Act, 1967”. This act included “special procedures” to deal with terrorist activities in whichever form they may manifest themselves. It also specifies the grounds on which an organisation can be deemed as ‘unlawful’. 

  • They participate in and/or commit activities of terrorism
  • They prepare to spread terrorism
  • They promote the terrorism
  • or, in case, they are involved with terrorism

This Bill further empowers the government to label any individual as a ‘terrorist‘ based on the above grounds.

REASONS TO REFORM

Unlawful activity or terrorist activities as defined by the Act is very subjective and confines every person in dissent with the State, to be categorized as a terrorist. In 1976, the national emergency facilitated extensive preventive detention operating through the MISA and labelled the people with opposite views to the government as ‘anti-nationals’. The Supreme Court was of the view that the arrests were justified, overriding the writ of Habeus Corpus in the name of ensuring the security, sovereignty and interest of the nation. Although, Justice H.R. Khanna stated his opposing view, as “the writ of habeas corpus cannot be suspended with reference to Article 21 of the Indian Constitution.

Article 21 of the Constitution of India enshrines the Right to Life. But the Hon’ble Supreme Court held that the Right to Life does not only encapsulate the act of breathing of a human being. It impliedly talks about the “Right to live with dignity” and reputation. In the course of labelling an individual as a terrorist without the formal procedure of FIR and charge sheet being executed, the individual does not undergo trial or conviction and irrespective of the conduct of the judicial process becomes entitled to a social verdict of a criminal. United Nations follow a distinct procedure that entails a specific course of action that will follow after a person is declared as a ‘terrorist’. There will be subsequent restrictions on the travelling of the individual, imposition of an arms embargo, and sealing of funds by the State. Although the procedural implementation of this law is truncated

After receiving the designation of a ‘terrorist’, the designated individual has the right to file an appeal, which in case gets rejected, could be filed for the second time within 30 days. A committee would be situated in this step. If the appeal gets rejected yet again, the individual has the right to approach the judiciary. But this process could take a minimum span of a hundred days. These hundred days would result in the individual being subjected to a thorough social boycott and brutal vigilante justice where the mob decides into their hands without any due process of law. There have been instances where Human Rights activists have been arrested and labelled as ‘Terrorists’. The mob and the government are equating these people with Maulana Masood Azhar. The people fighting for tribal rights and the upliftment of Dalits, the people working in environmentalism and other humanitarian causes cannot be labelled as terrorists by the operating Central government. Cases were filed against the social activists Rona Wilson, Varavara RaoArun Ferreira, Sudha Bharadwaj and Gautam Navlakha in 2018 in the incident of Bhima Koregaon violence and the Maharashtra police had foisted a case in connection with the same. In this case, the entitlement of the Right to Life under Article 21 gets violated on the precarious ground that anybody who disagrees with the provisions of the government is a terrorist.

The Amendments of 2019 are far-reaching and stand on unstable grounds. Any propaganda subjectively could be shown as an ideology of terrorism and can demarcate a person involved in it in any manner as a terrorist. This sole ground is comprehensive enough to violate the provisions of Article 21 of the Indian Constitution that guarantees us the “Right to live with dignity” and reputation. This would mean that the Central government has no right to declare a person a terrorist without following the appropriate judicial procedure. When a person, under this Act, is declared a terrorist, the burden of proof shifts to the accused person. During a criminal case, the burden of proof rests on the prosecution because it is for the State to prove beyond any reasonable doubt that the accused individual is guilty. But under UAPA; the very accused individual is required to provide evidence for himself to the Judiciary that they are wrongly accused of being a terrorist which becomes difficult because the State is the machinery to press the accusations. Also, the accused person could not take the defence of protection of his Right to Life because Article 21 in its exceptions talks about the depriving of a person of their Right to Life and personal liberty, provided it is according to the “procedure established by law”. Yet the Right to reputation which is an inherent part of Article 21 of the Constitution, gets violated when a person is before the commencement of a trial, tagged as a terrorist. The notion of Article 21 becomes diluted in the amendment of 2019. These amendments also violate the International Covenant on Civil and Political Rights, as it states in Article 6 that ‘every human being has an inherent ride to Life this right shall be protected by law and no one shall be arbitrarily deprived of his Life.

The grounds for labelling a person as a member of a terrorist organisation are precarious. A researcher studying the ideology or literature and operation of any terrorist organisation could be deemed to be a member of that organisation since the individual had to participate in the meetings or associations of the organisation for academic purposes. Hence anybody who has literature on banned or terrorist organisations could be penalized. But this comes into conflict with the Supreme Court’s verdict in the case of Indra Das v State of Assam where the Hon’ble Supreme Court stated that an individual having any form of literature of an outlawed organization in his belongings or participating in any of the meetings of the same does not make them, a terrorist, provided they are not inciting people to violence. The police officials have the authority under Sections 43A and 43B of this Act to search, seize, and even arrest anybody engaging in any illegal activity without a warrant. This is a direct violation of the Right to Privacy of the person if the accusations made against them are ambiguous

In Section 43(D)(5) of the UAPA, the concept of bail or anticipatory bail has been discussed.

During the 1970s, the Supreme Court stated “as much as possible to release individuals on bail if an individual is not a threat to public property, individual accused cannot tamper with the evidence, cannot threaten with the witnesses, cannot run away from this country otherwise keep him in jail”. But in the case of the UAPA the credibility of a charge sheet or case diary, if filed, could not be held as legible. Because the prosecution or the State cannot be convinced based on a charge sheet filed prime facie, as it is proof that there is a case against the accused. The charge sheet and case diary of the incident are only assumptions of the State officials and the judiciary cannot be trusted to guarantee the Right to Life under Article 21 of the Indian constitution, based on the assumptions of the State.

CONCLUSION 

Although the aim of UAPA is to secure national security by combatting terrorism, this goal costs a citizen their personal liberty. It is not a fair trade of liberty with greater good of the nation, because all our rights are subjected to reasonable restrictions, in favour of the nation. The legislation should be focused more on the theory of rule utilitarianism, than act utilitarianism so that the Act ensures the utility of maximum number of citizens, for a majority of time. This would ensure a comprehensive law to safeguard the fundamental rights and to secure the nation.

Author(s) Name: Kasturi Bhowmick (University of Calcutta)