Syllabus: Role of external state and non-state actors in creating challenges to internal security.
Features of the Act
- Declaration of Unlawful Association
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- Central Government may declare associations unlawful for supporting secession or questioning sovereignty.
- Ban on organisations can be imposed and extended up to five years.
- Government may designate organisations as terrorist for committing, preparing, promoting, or supporting terrorism.
- Definition of Terrorist Acts
- Section 15 defines terrorist acts threatening unity, integrity, security, or sovereignty of India.
- Includes acts intended to strike terror in India or foreign countries.
- Covers acts under international conventions listed in the Act’s Schedule.
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- Tribunal Mechanism
- Central Government may constitute Unlawful Activities Prevention Tribunal headed by a High Court Judge.
- Extended Detention Provisions
- Police remand can extend to 30 days instead of the usual fifteen.
- Judicial custody before charge-sheet may extend up to 180 days.
- Stringent Bail Conditions
- Bail denied if court finds charges prima facie true.
- Burden shifts to accused to disprove allegations.
- Punishments
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- Death penalty or life imprisonment if terrorist act causes death.
- Five to ten years’ imprisonment and fine for other terrorist activities.
- Minimum five years’ imprisonment for preparatory acts.
- Investigating Agency
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- National Investigation Agency (NIA) empowered to investigate UAPA cases.
Evaluation of the Act
- Arguments in Favour
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- National security: Enables preventive action against individuals and organisations supporting terrorism.
- Counterterrorism capacity: Terrorist designation enables asset freezes, travel bans, and sanctions.
- Preventive detention: Allows custody to avert imminent threats despite insufficient trial-ready evidence.
- Global commitments: Amendments align with UN Convention on Terrorist Financing obligations.
- Effective prosecution: Enabled conviction in 26/11 Mumbai attacks using electronic and intercepted evidence.
- Deterrence: Severe penalties discourage terrorism, exemplified by punishment in 2001 Parliament attack cases.
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- Issues with UAPA
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- Vague definitions: Broad meanings of “unlawful activity” risk covering legitimate political dissent.
- Pre-emptive arrests: Permits arrests and prolonged detention based on suspicion or anticipated offences.
- Low conviction rate: PUCL report shows below 3% convictions (2015–2020), questioning efficacy.
- State overreach: Phrases like “likely to threaten” allow labelling without completed violent acts.
- Denial of rights: Section 43D(5) severely restricts bail if accusations appear prima facie true.
- Judicial Perspective
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- Justice Rohinton Nariman urged striking down offensive provisions of the Act.
- Arup Bhuyan (2011) Case: Mere membership of banned groups is insufficient without violence or incitement.
- PUCL (2004) Case: Counterterrorism through human rights violations is counterproductive.
- K.A. Najeeb (2021) Case: Constitutional courts may grant bail to protect fundamental rights.
- MKSS (2018) Case: Peaceful, non-violent protests against government actions are constitutionally protected.
Way Forward
- Amend definitions: Narrow vague terms to exclude peaceful protest and constitutionally protected dissent.
- Restore burden of proof: Place evidentiary responsibility on prosecution, not the accused.
- Independent review: Create transparent mechanisms to review and challenge terrorist designations.
- Last-resort use: Reserve UAPA for extreme cases; avoid suppressing criticism or opposition.
- Dialogue and reconciliation: Prefer negotiation to address grievances, reducing reliance on coercive laws.
Conclusion
- Balancing individual liberty and state security requires coordinated action by State, judiciary, and civil society.