Legislations
A Critical Legal Analysis of The Enforcement of UAPA (Amendment) 2019
By Maria Binny Palamattom
Introduction
The Unlawful Activity (Prevention) Act, 1967 is an Act that sustains to prevent the ‘unlawful’ activities undertaken by the citizens of the country and in its simplest interpretations, it is referred as a major anti-terror legislation. The latest amendment bill that was passed by the parliament brought in definitions of what a terrorist act is irrespective of the oppositions and criticisms the bill had faced. When the Act provides the Central Government with the power to criminalize the dissent of its citizens when analyzed at a deeper notion and increased possibility of infringing the civil rights of the individuals, the question of the constitutionality of the Act gets raised from the grass-root level.
The origin and legislative intention behind the formation of UAPA can be traced to the Criminal Law Amendment Act, 1908 which was passed in the British Era, hence, the evolution of the Act raises serious questions. The Act that was formed to suppress the Indian Nationalist freedom movements, which categorizes its current status as unlawful assemblies.
The legislative intention of the 1967 Act majorly revolved around the need to address the terrorist activities, unlawful possession of arms, terrorist funding, money laundering state of cognizance and related assignments of authorities. The amendments those followed in the years 2004 and 2008 reinstated the Prevention of Terrorism Act and were further strengthened after the Mumbai Terrorist Attacks later followed by its repulsion.
The UN Resolution, condemning the terrorist attacks that occurred in New York, Washington D.C and Pennsylvania also provided a reasonable basis to amend the existing Act. Though the Act functions with the interest to counter terror attacks, the contentions of civil rights violations remain prevalent and often questioned when its enforcement ends up being misinterpreted and misused.
The Act on its enactment succeeds in ensuring the security of the nation and its citizens, however, provides enormous power to the Government to choose any individual, group (inclusive of political groups), or a section or any contention as planned legislative violence, ultimately parents the other two Acts, Terrorist and Disruptive Activities (Prevention) Act and Prevention of Terrorist Activities Act and other State-specific Acts.
Constitutional and Other Restrictions
The Rights bestowed by the Constitution are subjected to ‘reasonable’ restrictions as and when imposed by the State that is not, however, to be arbitrary. The vagueness in defining “what is a terrorist act?”, even after the most recent amendment, raises several questions over the freedom of an individual, specifically, Freedom of Speech and Expression (Article 19(1)(a)), Freedom of Assembly (Article(1)(b)), Freedom to form Association(Article (1)©) and ultimately the Right to Life (Article 21), which is again inclusive in the Basic Structure of the constitution.
The restrictions imposed by UAPA turns further complicated, when there are pre-existing restrictions which are laid down over the Freedom of Speech and Expression by the IPC and the Constitution, that are The Security of the State, Friendly Relations with Foreign State, Public Order, Decency or Morality, Contempt of Court, Defamation, Incitement to Offence and Sovereignty and Integrity of India which were enforced by the First Amendment Bill, 1951 to which further restrictions that can label citizens as terrorists or their actions as terrorist acts get added.
Mishandling of Power and Controversial Situations
The events that had been taking place ever since the pre-independence era, where the Act entitled the State, to mercilessly prosecute the agitations and movements against British Rule, under the umbrella of Nationalist movements, have taken up an entirely polished agenda of arrests, charged for the conduction of Unlawful Activities which often leaf to strict confinements, police brutality and false charges followed by the intent to falsely prosecutes. This indicates the possibility of mishandling the power and authority by the State through their Servants vicariously.
Following the latest amendment that took place on 8th of August 2019, several arrests were undertaken against the unlawful activities of individuals. These events though vary in nature of arrest raises similar concerns when scrutinized. One among these notable arrests was the one undertaken in the state of Kerala, where 2 communist party workers were arrested for being suspected to have Maoist links on the claim by the police authority about the seizure of Maoist Literature from the youth which turned out to be the incriminating evidence. This arrest again added to the 162 cases of UAPA arrest in the State which demanded re-investigations. This event in the South was followed by the arrest and detention of numerous Anti- CAA protestors in Delhi who were charged with UAPA and Sedition Law, where an individual is charged for making attempts by conduct or other means to bring up hatred against the Government established by Law. Hence, a protest, irrespective of the absence of violence against the legislation passed by the Government was suppressed by the application of the Unlawful Activities (Prevention) Act, 1967, which raised the predominant controversy.
The arrest followed by the detention of a 27-year-old Jamia Milia Islamia student Safoora Zargar was charged under UAPA on the allegation of her role in North East Delhi riots, though she was denied bail several times at her second trimester of pregnancy, was finally granted bail on humanitarian grounds by the Delhi High Court, after the storm across the country via social media and repeated pleas for bail against the imposition of the charge.
In the light of the enforcement of the amendments, several pleas had approached the Supreme Court of India, inclusive of the one by the Association for Protection of Civil Rights, for the judicial intervention `to declare the Act unconstitutional, questioning the extensive power conferred on the Government to designate any individual as a terrorist.
Latest Amendment
The contentions rose against the 2019 amendment, majorly revolves around 2 sections, i.e. Section 35 and 36 that have changed specifically in the Act, as per the pleas filed in the Supreme Court to declare them unconstitutional. Hence, the need to analyze the legal validity of the controversial sections gets necessitated.
Previously, the Act had instituted the Government to declare any organization that commits, participates, prepares, promotes, encourages or is involved in terrorism; inclusive of numerous organizations such as CPI (Maoist), Indian Mujahideen (IM), Garo National Liberation Army (GNLA), Kamtapur Liberation Organization (KLO), ISIS, Ansar-Al-Ummah, Islamic State of Iraq and the Levant-Islamic State of Iraq, Harkat-Al-Mujahideen / Harkat-Ul-Ansar/ Harkat-Ul-Jihad-E-Islami/ Ansar-Ul-Ummah, NSCN(K), AQIS, ISKP, Khalistan Liberation Force, TuM, Jamaat-Ul-Mujahideen Bangladesh and most of their manifestations and ally organizations were declared as terrorist organizations before the introduction of the amendment.
Followed by the amendment, individual terrorists were identified by adding their names to Schedule 4 of the UAPA, 1967 such as Maulana Masood Azhar, Hafiz Muhammed Sahib, Zaki-ur-Rehman Lakhvi and Dawood Ibrahim Kaskar. The insertion was made by adhering to the declaration of the United Nations as laid down in the amendment made to clause (b) of the Act.
The Supreme Court had addressed the pleas concerning the unconstitutionality of the sections conferred, by issuing notices to the Ministries of Law and Home on the petition that challenged the legality of the Amendment rather than making a direct intervention to the same. The Question of Law comes up against the amendment made in Section 35, which altogether changed the head of Terrorist Organizations to Terrorist Organizations and Individuals where individuals’ dissent can also lead to them being deemed to be terrorists and also fails to be precise on the grounds or valid reasons to accuse an individual as a terrorist.
This is also accompanied with the procedure of attaching/confiscate the properties, irrespectively violating, one’s Right to Property (Continues to be a legal/ Constitutional right) of the individual identified as a terrorist, much before conviction or the initiation of the trial. Hence, ultimately the Act that was laid down with the legislative intent on combating money laundering and terrorist financing has now reached in a position to deny the human rights from its core by the arrests under the section even for the genuine dissents made. Whereas, as one head towards Section 36 of the Act, the Central Government is further, conferred with the exclusive option, removing of an organization or an individual from the charge imposed, by Schedule 4 of the Act, i.e. from being a terrorist or a terrorist organization.
The legality of the Amendment is questioned when, it has turned out to be mere satisfaction of an International Obligation against the terrorist activities and attacks across the globe by taking an arbitrary stand towards the Civil Rights of people including Article 21, 14 and 19(1) (a) of the Indian Constitution that guarantees Right to Life, Right to Equality and Right to Freedom of Speech and Expression respectively. Why it becomes violative of Article 19(a), the reason would be that when the right to express dissent gets questioned or practically violated, the Central Government has the complete unbound authority here;
Question of crushing Article 21 is when an individual on an arbitrarily defined ground gets arrested and later gets confined with his/her property confiscated provides a societal taboo equivalent to conviction much earlier being possible raises serious concerns against the Right to Life with Dignity and finally, Article 14 gets equally injured when the majority party led Central Government performs discretionary, unbound and unfettered antithesis of the same powers.
Conclusion
Being an Anti-terrorist legislation, the Act along with its amendments have a great role to play in the security of the nation on one hand and the need to prevent the exploitation and injury to the rights of the citizens on the other hand keeping in par with the legislative intent of the Act. Frequent judicial intervention must be necessitated in the enforcement of the Act in such a way that it doesn’t curtail the civil, political and legal rights of the individuals.
Unless the recent amendments are considered as Emergency Provisions in the Act, the possibility of exploitation and mishandling of it cannot be held under control. The recent arrests of the students of JNU and other forums for their protests, against the legislation Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) were also on the charges under UAPA which critically questions the right to protest or express dissent in a democracy, like India. Therefore, the Central Government’s unbound authority to declare individuals and associations by unlawful means of acts those are undertaken to allegedly disrupt the country’s sovereignty, cause disaffection against India and so on are easily misinterpreted and misunderstood with the criticisms raised against the violative nature of the legislation passed by the Government nowadays which automatically creates chaos and disharmony.
Ultimately, the Amendments of this kind can lead to a position, where the future gets silent towards the implementation of their basic civil rights and prevention of them from getting injured, thereby making the population passive in itself. Once imposed a charge under the Act, in the light of the recent amendments, the possibility of bail and retrieval from the confinement is almost a dream.
Hence, the changes made to the existing legislations like that of UAPA or the formation of new legislation such as the CAA shall be scrutinized in a manner such that they do not hamper the basic civil rights bestowed upon individuals by the Constitution, provided, that they undergo regular impartial judicial review for a healthy system of justice deliverance.
Maria Binny Palamattom BA LLB, School of Law, CHRIST(Deemed to be University), Bengaluru.
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