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The Unlawful Activities (Prevention) Act is an
Indian law The legal system of India consists of civil law, common law, customary law, religious law and corporate law within the legal framework inherited from the colonial era and various legislation first introduced by the British are still in eff ...
aimed at the prevention of unlawful activities associations in
India India, officially the Republic of India, is a country in South Asia. It is the List of countries and dependencies by area, seventh-largest country by area; the List of countries by population (United Nations), most populous country since ...
. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India. The most recent amendment of the law, the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA 2019) has made it possible for the Union Government to designate individuals as terrorists without following any formal judicial process. UAPA is also known as the "Anti-terror law". The
National Integration Council The National Integration Council (NIC) is a group of senior politicians and public figures in India that looks for ways to address the problems of Communalism (South Asia), communalism, Caste system in India, casteism and regionalism. Council me ...
appointed a Committee on National Integration and Regionalisation to look into the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India. The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism. Pursuant to the acceptance of recommendations of the committee, the Constitution (Sixteenth Amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India. In 2019, the BJP led NDA government claimed that in order to implement the provisions of 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament.
United Nations special rapporteur Special rapporteur (or independent expert) is the title given to independent human rights experts whose expertise is called upon by the United Nations (UN) to report or advise on human rights from a thematic or country-specific perspective. De ...
s stated that the provisions of the UAPA 2019, contravenes several articles of the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal D ...
and the
International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom ...
. ''
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'' has reported that people arrested and charged with UAPA find it harder to get bail.


History

Pursuant to the acceptance by Government of a unanimous recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law, reasonable restrictions in the interests of sovereignty and integrity of India, on the: # Freedom of Speech and Expression; # Right to Assemble peaceably and without arms; AND # Right to Form Associations or Unions. The object of this bill was to make powers available for dealing with activities directed against the integrity and sovereignty of India. The bill was passed by both the Houses of Parliament and received the assent of the President on 30 December 1967. The Amending Acts are as follows: # The Unlawful Activities (Prevention) Amendment Act, 1969 # The Criminal Law (Amendment) Act, 1972 # The Delegated Legislation Provisions (Amendment) Act, 1986 # The Unlawful Activities (Prevention) Amendment Act, 2004 # The Unlawful Activities (Prevention) Amendment Act, 2008 # The Unlawful Activities (Prevention) Amendment Act, 2012 # The Unlawful Activities (Prevention) Amendment Act, 2019 This last Amendment was enacted after
POTA Pota is a village Panchayati raj in India, panchayat located in the Mahendragarh district in the Indian state of Haryana. Location and history Pota is a village in Kanina Khas, Kanina tehsil in Mahendragarh district of Haryana state, India. ...
was withdrawn by the Parliament. However, in the Amendment Act in 2004, most of provisions of POTA were re-incorporated. In 2008, after
Mumbai attacks Terrorism in India, according to the Ministry of Home Affairs (India), Home Ministry, poses a significant threat to the people of India. Compared to other countries, India faces a wide range of terror groups. Terrorism found in India inclu ...
, it was further strengthened. The most recent amendment has been done in 2019. According to the statement of objects and reasons, the Bill amends the Unlawful Activities (Prevention) Act, 1967 to make it more effective in preventing unlawful activities, and meet commitments made at the Financial Action Task Force (an intergovernmental organization to combat money laundering and terrorism financing). In July 2019, the ambit of UAPA was expanded. It was amended allowing the government to designate an individual as a terrorist without trial. The previous versions of the Bill allowed for only groups to be designated as terrorists. In a ruling passed on 1 February 2021, the
Supreme Court of India The Supreme Court of India is the supreme judiciary of India, judicial authority and the supreme court, highest court of the Republic of India. It is the final Appellate court, court of appeal for all civil and criminal cases in India. It also ...
ruled that bail could be granted to accused if the right to speedy trial was violated. In another significant judgement in 2023, the Supreme Court ruled that "membership of an unlawful organisation" constituted an offence under UAPA.


Unlawful Activities (Prevention) Amendment Act, 2019

The Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in
Lok Sabha The Lok Sabha, also known as the House of the People, is the lower house of Parliament of India which is Bicameralism, bicameral, where the upper house is Rajya Sabha. Member of Parliament, Lok Sabha, Members of the Lok Sabha are elected by a ...
by the Minister of Home Affairs,
Amit Shah Amitbhai Anilchandra Shah (born 22 October 1964) is an Indian politician who is currently serving as the 32nd Ministry of Home Affairs (India), Minister of Home Affairs since May 2019 and the 1st Ministry of Co-operation, Minister of Co-operat ...
, on 8 July 2019. The Bill amends the Unlawful Activities (Prevention) Act, 1967. The Act provides special procedures to deal with terrorist activities, among other things. The act was passed in the Lok Sabha on 24 July and Rajya Sabha on 2 August. It received the assent of the president on 8 August.
PRS Legislative Research PRS Legislative Research, commonly referred to as PRS, is an Indian non-profit organisation that was established in September 2005 as an independent research institute to make the Indian legislative process better informed, more transparent an ...
explained the act below: Who may commit terrorism: Under the Act, the central government may designate an organisation as a terrorist organisation if it: :(i) commits or participates in acts of terrorism, :(ii) prepares for terrorism, :(iii) promotes terrorism, or :(iv) is otherwise involved in terrorism. The Bill additionally empowers the government to designate individuals as terrorists on the same grounds. Approval for seizure of property by NIA: Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police to seize properties that may be connected with terrorism. The Bill adds that if the investigation is conducted by an officer of the
National Investigation Agency The National Investigation Agency (NIA) is the principal counter-terrorism law enforcement agency in India. Established under the National Investigation Agency Act, 2008, it is tasked with investigating and combating offenses related to terroris ...
(NIA), the approval of the Director General of NIA would be required for seizure of such property. Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases. Insertion to schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill also adds another treaty to the list. This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).


Mechanism

For prosecution under Section 13 of the UAPA, the permission of the
Ministry of Home Affairs An interior ministry or ministry of the interior (also called ministry of home affairs or ministry of internal affairs) is a government department that is responsible for domestic policy, public security and law enforcement. In some states, the i ...
(MHA) is required. However, for prosecution under Sections 16, 17 and 18, the permission of the respective State government is required. Section 25 allows the NIA to seize property it considers to be proceeds of terrorism, with the written consent of the Director General of Police (DGP) of the State. However, it is possible for the NIA officer to obtain the consent of the DGP of the NIA thus bypassing the State DGP. The police normally have 60 to 90 days to investigate a case and submit a charge-sheet failing which the accused may obtain default bail. However, under the UAPA, this pre-charge sheet time is extended to 180 days. Further, normal bail rules do not apply to an accused under Section 43(d)5 of the UAPA.


Criticism

UAPA is criticized for its low conviction rate, which is around 2%. According to the data shared by the
Union Government The Government of India (ISO: Bhārata Sarakāra, legally the Union Government or Union of India or the Central Government) is the national authority of the Republic of India, located in South Asia, consisting of 36 states and union territor ...
, in the period 2016 to 2020, 5,027 cases were registered under the act against 24,134 individuals. Only 212 of the 24,134 people were convicted and 386 were acquitted. This means, in the years 2016-2020, 97.5% of the people arrested under UAPA remain under prison awaiting trial. In July 2019 while introducing the Unlawful Activities (Prevention) Amendment Bill, 2019 the BJP led Union Government claimed that the bill would give it power to probe terror attacks on India, the Opposition parties in the Lok Sabha termed it draconian. The Opposition claimed that the Bill did not contain any provisions to prevent misuse. Specifically, the power to designate an individual as a terrorist before being proven guilty by trial, was criticised. Critics of the UAPA consider the definitions of "terrorist", "like to threaten" and "likely to strike terror" to be very broad and open to misuse by the police as the burden of proof of innocence is on the accused. The example of Gaur Chakraborty among others is cited wherein he spent 7 years in prison during trial only to be acquitted of all charges, wherein the imprisonment during trial itself amounted to punishment. In 2020,
United Nations special rapporteur Special rapporteur (or independent expert) is the title given to independent human rights experts whose expertise is called upon by the United Nations (UN) to report or advise on human rights from a thematic or country-specific perspective. De ...
s stated that the provisions of the UAPA 2019, contravenes several articles of the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the Human rights, rights and freedoms of all human beings. Drafted by a UN Drafting of the Universal D ...
and the
International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom ...
. Lawyer Rongeet Poddar wrote in the
Oxford Human Rights Hub Sandra Fredman FBA, KC (hon) is a professor of law in the Faculty of Law at the University of Oxford and a fellow of Pembroke College, Oxford. Early life and education Fredman was born in Johannesburg, South Africa, and received her undergra ...
, that UAPA 2019 has made it possible for the Union Government to designate individuals as terrorists without a due process of law. He wrote, "Neither the Amendment Bill nor the parent statute provides a concrete definition of terrorism. This opens a Pandora's box. Categorization as a 'terrorist' by the executive bears serious consequences, such as social boycott or loss of employment." Such labeling by the executive could lead to mob lynching by the vigilante groups in India. Calling it a "colourable legislation which bears the potential for abuse by the executive", he noted that the constitutionality of the act should be contested. He wrote, the UAPA 2019 "echoes laws made under the colonial regime to crush the freedom movement in the garb of ensuring public order." As part of the K. G. Kannabiran Lectures on Law, Justice and Human Rights, Senior Advocate
Mihir Desai Mihir Desai is a human rights lawyer in cases of mass murders and riots, fake encounter and custodial deaths by the police, police brutality, freedom of speech and journalists, political activists and prisoners of conscience, excesses by the state, ...
in a lecture titled, "The Problem Of Preventive Detention in India", delivered on 23 November 2020, stated
''"Preventive detention laws and special legislations like UAPA -- anti-terror laws as they are called -- allow the state to carve out exception for its own lawlessness. These are the laws which permit the state to claim that we are governed by the rule of law and on the other hand pass such legislations which violate the rule of law altogether. These are the laws which go against the basic tenets of the constitution, such as freedom, equality, right to life, liberty etc. It therefore becomes important to look at these laws which gives an exceptional power to the state over citizens -- to arrest them, to detain them, to charge them with offences which otherwise they may not be able to charge them with, keep them behind bars for years together, and also for ensuring that dissent in all forms is crushed."''
On 25 July 2021, Justice Aftab Alam, former
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
judge spoke on a webinar titled "Discussion On Democracy, Dissent and Draconian Law – Should UAPA & Sedition Have A Place In Our Statute Books?". In the discussion, he called UAPA a "draconian law" and said that it was the UAPA that caused the death of Father
Stan Swamy Stanislaus Lourduswamy, Society of Jesus, SJ (26 April 1937 – 5 July 2021), popularly known as Stan Swamy, was an Catholic Church in India, Indian Catholic priest, a member of the Jesuit order, and a tribal rights activist for several decade ...
without a trial. Stan Swamy was an activist that was charged with UAPA for his alleged role in the
2018 Bhima Koregaon violence The 2018 Koregaon Bhima riots refers to violence during an annual celebratory gathering on 1 January 2018 at Koregaon Bhima to mark the 200th anniversary of the Battle of Koregaon Bhima. The violence and stone pelting by a crowd at the gatherin ...
and links to the
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and later died in prison due to
COVID-19 Coronavirus disease 2019 (COVID-19) is a contagious disease caused by the coronavirus SARS-CoV-2. In January 2020, the disease spread worldwide, resulting in the COVID-19 pandemic. The symptoms of COVID‑19 can vary but often include fever ...
. Alam further stated that UAPA has a realistic conviction rate of 2%. He further stated that this law can lead to situations where case may fail but the accused would have been incarcerated for 8 to 12 years. He said in such cases, the case may have no legs to stand on but the accused has suffered and he concluded that in such cases the process becomes the punishment. In June 2021, Delhi High Court called out UAPA misuse by the Union government by observing the state had broadened the scope of "terrorist activity" to include ordinary penal offences. While the misuse of the law has been constantly debated, Police was also criticized for not invoking UAPA in some cases like the Haridwar hate speech case. On 20 January 2022, ''
BBC The British Broadcasting Corporation (BBC) is a British public service broadcaster headquartered at Broadcasting House in London, England. Originally established in 1922 as the British Broadcasting Company, it evolved into its current sta ...
'' called the UAPA a draconian anti-terror law and reported that many protestors and journalists were arrested, detained or charged with UAPA. UAPA had made it harder for the accused to get bail. PM
Narendra Modi Narendra Damodardas Modi (born 17 September 1950) is an Indian politician who has served as the Prime Minister of India, prime minister of India since 2014. Modi was the chief minister of Gujarat from 2001 to 2014 and is the Member of Par ...
led BJP Union Government has been accused of misusing UAPA to stifle dissent and target minorities in India.


Notable individuals charged under the Act

Between 2014 and 2020, 10,552 people were arrested under UAPA.


See also

*
List of organisations banned by the Government of India The Ministry of Home Affairs (India), Ministry of Home Affairs of India has banned a number of organizations that have been proscribed as terrorist organizations under the Unlawful Activities (Prevention) Act. The list this is the list of bann ...
*
Prevention of Terrorism Act, 2002 The Prevention of Terrorism Act, 2002 (POTA) was an Act of Parliament, Act passed by the Parliament of India by Atal Bihari Bajpayee government in 2002, with the objective of strengthening anti-terrorism operations. The Act was enacted due to ...


References


Bibliography


The Unlawful Activities (Prevention) Act, 1967
Updated text of the Act a
India Code
* *


Further reading

* {{cite web , title=Constitutionality of India's Unlawful Activities (Prevention) Amendment Bill, 2019: India's McCarthyism Moment , url=https://ohrh.law.ox.ac.uk/constitutionality-of-indias-unlawful-activities-prevention-amendment-bill-2019-indias-mccarthyism-moment/ , website=Oxford Human Rights Hub, The Faculty of Law , publisher=University of Oxford , access-date=1 March 2022
Sr Adv Mihir Desai: The Problem of Preventive Detention in India
Acts of the Parliament of India 1967 Crime in India Separatism in India Terrorism laws in India