How Arrests under the Unlawful Activities (Prevention) Act are different from the general criminal law in India
Yesterday, 5 activists were arrested from different cities of India, for allegedly instigating or promoting violence in Bhima Koregaon in Pune in January. We have been getting enquiries from people on social media, as well as in our offline networks about the arrests, and the legal process involved in them. General arrest procedure are quite different from the arrests that happened in this instance. These arrests happened under the Unlawful Activities (Prevention) Act (“UAPA”), which gives wider powers to the police, in comparison to provisions in Indian Criminal law.
This post is an attempt to deconstruct and explain the UAPA, and see how the provisions are different in comparison to the general rule of criminal law.
Introduction
The Act was created with an objective to prevent certain unlawful activities of individuals and associations, and for dealing with terrorist activities and any other related activities.
Under the UAPA Law, the government can ban unlawful organizations and terrorist organizations and other similar groups.
The law defines unlawful activities as “ any activity that is intended to, or supports any claim, to bring about the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or which causes or is intended to cause disaffection against India”
Any organization or a group that involves in such unlawful activities is termed as an unlawful organization and the more extreme ones are termed as terrorist organizations. Apart from defining what would constitute an unlawful organization, a terrorist organization or an unlawful association, the law also talks about various ways in which persons related to such activities can be punished. There are various provisions which talk about confiscation and sealing of property which are intended to be used for such activities. A Tribunal is also created for the purpose of prosecuting persons who are booked under this law.
Ambiguous provisions
The UAPA has been criticised time and again for being ambiguous and the provisions being arbitrary. The various controversial provisions are:
Membership of unlawful associations, terrorist organization and etc
Section 10 and section 20 of the Act of the talk about penalties and punishments for being a member of an unlawful association but the term membership has not been defined in the Act. This gives a lot of discretion to the authorities to arrest people on mere suspicion of being associated with various groups. It has been argued by various human rights advocates that the Constitution gives the citizens the right to free association under article 19(c) and this law has a potential to term any association as illegal and unlawful. The Supreme Court has also held that the term membership should not be read ambiguously and membership of a person should be only seen in cases where an individual has engaged in active incitement to violence. Merely being a member of a group which the police suspect to be unlawful does not make a person guilty under UAPA. However, there have been cases where people have been arrested for possessing books about some presumably unlawful organization or having an ideology which is common to an unlawful organization, thus limiting the fundamental right of free speech and expression.
Arbitrary arrest
As per the Constitution under Article 22 and the provisions of the Criminal Procedure Code, a person arrested has to be produced before a magistrate within 24 hours of the arrest. This rule however does not apply in the case of UAPA and a person can be detained for 30 days without being produced before a magistrate. Further, if the circumstances require then they can be kept in judicial custody (when you are kept with court authorities as opposed to with jail authorities) for 90 days and even more than that.
Search and Seizure
Under the Criminal Procedure Code a Police Officer has to have a warrant in order to arrest a person for a non-cognizable offence but the offences under UAPA are seen as Cognizable offences, hence the police can conduct search and seizure operation without a warrant from the magistrate.
Bail
As a general rule, bail is granted in most of the offences but in UAPA under section 43 D (5) , a magistrate can refuse to grant bail to an accused person if the magistrate is of the opinion that there are reasonable grounds to believe that the charges against the person are true. The court can do so on the deposition of the investigation officer in that instant case.
This section is in contravention of the general principles of criminal law which believe a person to be innocent until proven guilty. It has been seen that there are various people who have been kept in Jails for months before they are even produced before the court for a trail. This has been seen as being in contravention of the rule of law.
The person arrested in the UAPA cases cannot seek for anticipatory bail as well. To know more about anticipatory bail look here
Conclusion
The UAPA law has been termed as a controversial law for its provisions which give lot of discretion to the Police as well as the courts. The law has been a matter of debate for being violative of the rights of the people. There is a hue and cry from various stakeholders for its abolishment. Only coming times will tell what the future of this law will be.
Written by Mustafa Haji
