Syllabus: Indian Constitution — historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
Context: Supreme Court granted bail to 55-year-old tribal man, terming two-year custody without chargesheet as “wholly unjustified” and “illegal custody”, reprimanding Assam Police for UAPA violations.
UAPA
- Essence of the UAPA Framework
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- Enacted in 1967 to counter secessionist activities and anti-national threats.
- Underwent multiple amendments, most recently in 2019, introducing provisions on terror financing, cyber terrorism, individual designation, and property seizure.
- Empowers the National Investigation Agency (NIA) to investigate UAPA offences nationwide.
- Provides for death penalty or life imprisonment for severe terrorist acts.
- Allows detention without charge for up to 180 days and imposes strict bail conditions.
- Defines unlawful activity as actions encouraging cession, secession, or undermining India’s sovereignty and territorial unity.
- Describes terrorism as acts causing death, injury, destruction of property, or threatening India’s unity, security, or economic stability.
- Arguments Supporting UAPA
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- National Security Imperative: Enables preventive action against organisations or individuals threatening India’s security.
- Counterterrorism Utility: Facilitates designation of groups and persons as terrorists, allowing asset freezes and restricted mobility.
- Preventive Detention: Allows disruption of potential threats even before sufficient evidence for trial emerges.
- Global Commitments: Aligns India with global norms under conventions such as the UN treaty on terror financing.
- Effective Prosecution: Enables use of electronic surveillance, intercepted communication, and forensic tools, aiding convictions like in the 26/11 Mumbai case.
- Deterrence: Strong penalties discourage involvement in terrorist or extremist networks.
- Arguments Criticising UAPA
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- Fundamental Rights Concerns: Limits freedoms of speech, association, and peaceful assembly; prone to targeting activists, journalists, and minorities.
- Weak Safeguards: Government can unilaterally designate individuals as terrorists without judicial review; burden of proof shifts to accused.
- Judicial Interpretation: Rulings such as Watali (2020) restricted courts from detailed bail scrutiny, though later judgments (e.g., Thwaha Fasal, 2021) eased bail conditions.
- Federal Issues: Central dominance affects State police powers over public order.
- Low Conviction Rate: Only 2.2% convictions (2016–2019), indicating misuse and overreach.
- Judicial Perspectives
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- Arup Bhuyan (2011): Mere membership of banned groups insufficient for conviction without violent intent.
- PUCL (2004): Human rights violations during counterterror operations are counterproductive.
- K.A. Najeeb (2021): Constitutional courts may grant bail if fundamental rights are compromised.
- MKSS (2018): Peaceful dissent and protest fall within democratic rights.
- Suggested Reforms
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- Refine Definitions: Narrow terms like “unlawful activity” and “terrorist act” to exclude constitutionally protected expression.
- Restore Burden of Proof: Ensure prosecution, not the accused, must establish guilt.
- Independent Review System: Create impartial mechanisms to examine bans and designations.
- Last-Resort Principle: Apply UAPA cautiously, avoiding use against peaceful dissent or civil society activism.
- Conclusion
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- A balanced approach is essential, one that protects national security while safeguarding civil liberties. Strengthening due process, improving oversight, and rationalising definitions can make UAPA a more credible and effective counterterrorism instrument.