The Unlawful Activities Prevention Act – A Law of Extensive Debate

Policy Update
Naushaba

The Unlawful Activities Prevention Act (UAPA), India’s principal anti-terrorism legislation was formulated in 1967 to prevent unlawful activities which threaten the sovereignty, integrity, and security of India. Although the act has seen major amendments over time which have expanded its scope on terrorism, the original act was focused more on preventing activities related to secession and disruption of territorial integrity. It is the only Indian law on terrorism which has been posing a potential threat to India, however, it remains controversial and a bone of contention among civil society, human rights activists and the government. 

Background

With India’s defeat in the 1962 Sino-India war and the breeding succession movement in the 1960s in Tamil Nadu (Dravida Nadu), Nagaland and Manipur grew fears among the government circles about foreign-backed movements and internal threats. The 16th Amendment Act to the Constitution of India in 1963 laid the framework for the UAPA. The act allowed the central government to address the concerns related to such secessionist demands and empowered them to impose “reasonable restrictions” on freedom of speech and expression to curb the individuals and organisations advocating succession. However, today the act is seen more in terms of addressing “Terrorism.”

With the failure and repellations of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA) in the years 1995 and 2005 respectively, the government further strengthened and expanded the scope of UAPA by including several provisions on anti-terrorism. Section 15 of the act defines “terrorist acts” as activities aimed at threatening India’s unity, integrity, or security which include acts involving weapons, explosives, or hazardous materials. The punishment for such acts ranges from imprisonment to life sentences, and in some cases, the death penalty for terrorist acts causes loss of life.

This act plays a critical role in India’s legal framework for countering terrorism and maintaining national security. It grants broad powers to authorities for dealing with terrorism and unlawful activities but has also raised concerns regarding its potential for misuse, especially in terms of civil liberties and human rights.

Functioning

The UAPA is one of the earliest and still existing legislation on terrorism. As mentioned, it did emerge as an act of terrorism but the growing failure to enact an encompassing yet fastidious act led to several amendments within the act to make it suitable for existing terrorist threats. TADA was formulated in response to several terrorist and secession acts including demand for Khalistan, however, the bill was lapsed later due to widespread abuse. Similarly, TADA was enacted after the 2001 Parliament attack but again due to heavy criticism of its misuse, the act was repealed.

Under Section 3, the government can declare any association as “unlawful” if it believes the association is engaged in activities that threaten the sovereignty and integrity of India. Section 4 speaks about setting up Tribunals to confirm or cancel the declaration. The government is also empowered to freeze funds and assets of such associations, organisations, and individuals involved in unlawful activities. The act criminalises terrorist activities like using weapons, explosives, biological, chemical, or nuclear substances to cause harm.

Under investigation and persecution, the acts enable investigating officers to use extensive power, including the power to arrest, search, and seize without a warrant in cases involving terrorist activities. Section 43 D states that the suspects can not only be detained for up to 180 days without filing a chargesheet but also be put under highly restricted bail provisions. However, individuals or organizations affected by the Act have the right to take the matter to the court and challenge the government’s decision (Section 36).

Additionally, the act also criminalises the recruitment of terrorist organizations, organising terrorist camps, harbouring terrorists, providing financial support (raising funds) or facilitating meetings to support such organisations. Punishments for such activities vary from the death penalty or life imprisonment in case of death and lesser punishments in case of no casualties. Properties and assets belonging to such individuals or associations to be used for terrorist activities can be seized by the government. 

Performance

Several individuals, associations, and organisations have been booked under the UAPA over the years for being involved in unlawful activities related to terrorism, insurgency, and anti-state and anti-government actions- It is the last two that have made UAPA talk of the town.  The UAPA is not only applicable to its citizens within the Indian territory and Indian citizens outside India but also to foreign nationals committing offences against India or on Indian-registered ships and aircraft. 

A total of 32 organisations have been banned and charged under the UAPA which includes terrorist organisations like Jaish-e-Mohammd, Lashkar-e-Taiba, ISIS, Al-Qaeda, Hizbul Mujahideen etc. Separatist insurgent organisations include the Khalistan Liberation Force, the National Socialist Council of Nagaland, and the United Liberation Front of Assam. Maoist and Naxalite organisations like the Communist Party of India (Maoist) and the Revolutionary People’s Front. Others like the Students Islamic Movement of India and the Popular Front of India are also part of the list. 

Although the act has been effective in curbing external threats from terrorist organisations and internal security threats, the complication arises when it comes to its potential misuse. When it comes to the domestic usage of the act, its performance has been marred with extensive criticism nationwide due to human rights violations, controlling political dissent, and long pre-trial detention periods. Reports suggest that there has been overuse of the act as the number of UAPA cases has increased but the conviction rate is low. 

As per the 2022 report released by The National Crime Records Bureau in its annual publication Crimes in India, the country saw 191 increase in cases as compared to 814 in 2021 and 1005 in 2022. The country saw a nationwide surge in UAPA cases with the highest number of cases reported in Jammu & Kashmir followed by Manipur, Uttar Pradesh and Bihar. Furthermore, a draft report released by the People’s Union of Civil Liberties (PUCL) emphasised that less than 3% of the arrests have been under UAPA between 2015 and 2020.

Impact

As emphasised, the conviction rate under UAPA is at a low of 3% while arrests made under it cross the thousand mark, meaning that 97% of the cases were discharged after lengthy trial processes and long detention of one year or so. Over the years, an increase in high-profile UAPA cases of journalists like Siddique Kapan (2020), activists and intellectuals like Stan Swamy (2021), Umar Khalid (2020), Anand Teltumbde and Sudha Bhardwaj etc have led to nationwide criticism, calling the act draconian. As the report prepared by PUCL, data suggests that most of the cases were invoked under Section 18 of UAPA i.e. Punishment for conspiracy etc.

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(Top 10 most commonly invoked UAPA offences) (Source: PUCL)

Despite UAPA’s incorporation of provisions to meet India’s international obligations under United Nations Security Council Resolutions related to terrorism, particularly those requiring action against designated terrorist entities, the act has been internationally criticised for its Violation of Human Rights and Civil Liberties. Amnesty International and Human Rights Watch have consistently raised concerns over the overreach of UAPA by criminalising political dissent. The United States government, the United States Commission on International Religious Freedom, the British Parliament, the European Union, the United Nations and various other countries and organisations have shown concerns about misuse of the act which hampers India’s international stature as being the largest democracy in the world. 

Emerging Issues

A major issue with the act is the use of its ambiguous terms which can create a lot of ruckus when it comes to its implementation and in reality, it has created a lot of chaos. The loose definition of “terrorist act” under UAPA has made the provision a “draconian and undemocratic one”. The law defines a “terrorist act” as “an act intended to disrupt law and order, public order or endanger the unity, integrity and security of the State or to spread terror in the minds of sections of people.” Because of such loose definition many human rights activists, journalist, political opposition members have been falsely booked. 

Many Bhima Koregaon (2018m) activists and intellectuals were charged under UAPA which violated their fundamental right to speech and expression. The case of Stan Swamy and his death in judicial custody in 2021 sparked outrage. Similarly, in response to the Citizenship Amendment Act protests (2020), the government booked many under UAPA, among them was the student leader, Umer Khalid. Umer Khalid was arrested for making provocative speeches during the protests and inciting communal violence and has been in jail since then (4 years). These instances not only suggest the misuse of UAPA for curbing political dissent and denying fundamental rights but also the slow and long working process of UAPA. 

Way Forward

The UAPA is India’s primary legislation to counter emerging terrorism and its frontiers and maintain its internal security. The law had evolved over a long period including new provisions as time required, however, ambiguity and misuse have hampered its proper functioning. The act has been effective in banning terrorist organisations and individuals, taking away their assets and punishing them for terrorist activities but so far it has not been able to keep itself clean of the misuse by the government in power.

There has been reported misuse of UAPA by the government, hence, rather being used for genuine national security purposes, the act has become a political tool to criminalise political dissenters. It gave sweeping powers to the central government and the police working under it. Such provisions violate the civil liberties of individuals, impact their freedom of speech and expression and disproportionately affect minorities which has been the case during the Bheema Koregaon and CAA protests. Furthermore, the process of the UAPA itself is tirelessly slow and long which can often drag a case for years and the Umar Khalid is a clear example. 

The new Bhartiya Nyaya Sanhita Bill of 2023, is a significant legislative proposal aimed at replacing the Indian Penal Code, which has been in place since its enactment in 1860 during British rule. It is a broader effort by the government of India to reform the criminal justice system and aims to strengthen anti-terrorism laws to effectively deal with national security threats.

Therefore, it will be interesting to look at the understanding of this new bill on terrorism and how it will cover up for the anomalies of previous laws on terrorism. Besides this, there is an immediate need to look into the shortcomings of UAPA so that it does not end up being a magic wand for some political party but rather fulfils its true purpose of combatting terrorism.

References

About the Contributor– Naushaba (she/her/hers) is a research intern at the Impact and Policy Research Institute and a postgraduate student of the Academy of International Studies, Jamia Millia Islamia. Her research interests lie in Global Politics, Gender Studies, Climate Change and Sustainable Development.

Acknowledgement– The author would like to express her sincere gratitude to Dr Arjun Kumar, Ms Aasthaba Jadeja, Ishita Deb and Mukti for their invaluable contributions to this article. Their support, guidance, and expertise were instrumental in its completion.

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