UAPA – State’s Machinery to Criminalize Dissent

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Image Source: Sabrang India

The amendments in the anti-terror law have given the union arbitrary power to curb freedom and infringe the rights of the citizen.

The Constitution Sixteenth (Amendment) Act, 1963, which amended clauses 2, 3, and 4 of Article 19 of the Indian constitution, has paved the way for the enactment of UAPA. Empowering the central government to enact any legislation imposing reasonable restriction on rights bestowed under Article 19 sub-clause (a)[freedom of speech and expression]; (b) [assemble peaceably and without arms]; (c) [form associations or unions] of clause (1) in the interest of the sovereignty and the integrity of the nation. The Unlawful Activities (Prevention) Act was first passed in 1967, which provided government power to impose ‘reasonable restrictions’ on the fundamental right to association confirmed under Article 19 of the Indian Constitution. Before the enactment of UAPA, 1967, a resolution was passed by the National Integration Council (NIC) headed by the Prime Minister. The NIC urge the parliament to frame a law to tackle unlawful activities and unlawful organisations.

The UAPA of 1967 can broadly be categorized into three primary objectives. 

  • Declaration of an association as unlawful.
  • Penalty for being a member of an unlawful association.
  • Penalty for dealing with the funds of an unlawful association.

However, the Act has been amended seven times, with the recent amendment in 2019, to incorporate the changing technique of terrorism, from shifting the burden of proof to making an extraterritorial arrest. Before 2019, UAPA dealt with unlawful activities and terrorist acts. It banned unlawful organisations as well as terrorist organisations. Moreover, the parliament enacted two alternative laws to deal with terrorism, namely, Terrorist and Disruptive Activities (Prevention) Act – TADA and Prevention of Terrorist Act, 2002 – POTA. However, both the laws were repealed on the ground that the statutes were misused, overused, and abused, but the new amendments in the UAPA are in the lines of these repealed laws.

Prominent Amendments in 2019

The significant amendments made in 2019, in the parent Act of 1967 include: First, the Designation of an individual as “terrorist”. The parliament amended the section 35 and 36 of chapter VI, which empowered the Central government to tag an individual as “terrorist” if he/she: commits or participate in terrorist activities, prepare for terrorism, encourage terrorism or otherwise involved in terrorism. 

Second, the amended Act amended the section 25 and has empowered the NIA to conduct a raid and the seizure of properties that are suspected to be linked to terrorist activities, by taking the sanction of the Director-General of NIA. Before the 2019 amendment, the NIA officers were required to take the permission of DGP of the state for raid and seizure of the properties. This very amendment in section 25 seems to attack the federal structure of the nation.

Third, the recent amendments, apart from the officers of the status of Deputy Superintendent or Assistant Commissioner of Police or above, have additionally empowered the officers of the NIA, of the rank of Inspector or above, to investigate cases under section 43.

Fourth, the amended Act adds another treaty to the existing nine treaties recorded in a schedule of the Act. The newly added treaty is the International Convention for Suppression of Acts of Nuclear Terrorism (2005). Now, any act which would come under the scope of the treaty mentioned above would term as terrorist Act. 

Analysis

The Unlawful Activities (Prevention) Amendment Act, 2019, is yet again another machinery to curb the dissenting voice of the nation. Despite the searing opposition to the bill, it was passed in the parliament. The law got criticised mainly on two grounds. First, the new amendments undermine Human Rights. Second, the new bill undermines the federal structure of the nation. 

The power vesting on the union to designate an individual as a “terrorist”, seems to be a problematic provision, as the Act fails to define what constitutes terrorism. The vagueness in the fundamentals of the Act means a massive discretionary power in the hands of the union and its investigative authorities to bring anyone in the domain of the “terrorist offence”. Moreover, the criteria for designation an individual is the same as that of an organisation. This means the Act fails to recognise that an individual, unlike an organisation, has their fundamentals rights enshrined under Part III of the Constitution. Further, the terrorist tag on an individual without any trial would curtail the right to reputation and right to life with dignity guaranteed under Article 21. As there is no prescribed guideline, as what will happen to a person designated as a terrorist, it may lead to a social boycott of the individual. Also, the 2019 amendment is conflicting with the principle of “innocent until proven”, which is a universal human right under the International Covenant on Civil and Political Rights, 1967.

Conclusion

The law enacted to combat terror in the nation is a threat to its citizens. As it is capable enough to be misused as other laws such as MISA, POTA, TADA, which were repealed. However, the recent amendment in the UAPA is on the same line as the repealed law and is a threat to democracy. As it can be speculated, through the recent arrests of the students, activists, and journalists who do not comply with the government. The law is used to curb the voice of the dissenters. The law is a threat to free speech guaranteed under the Fundamental Rights of the Indian Constitution.

References

  1. Anushka Singh: “Criminalising Dissent Consequences of UAPA,” Economics & Political Weekly, Sep. 22, 2012.
  2. “Designating Individual as Terrorist,” Economics & Political Weekly, Aug. 10, 2019.
  3. Siddharth Varadarajan, “Allowing the State to Designate Someone as a ‘Terrorist’ Without Trial is Dangerous,” https://thewire.in/rights/uapa-bjp-terrorist-amit-shah-nia, Aug. 02, 2019.
  4. “The Unlawful Activities (Prevention) Amendment Bill,” 2019, “https://www.prsindia.org/billtrack/unlawful-activities-prevention-amendment-bill-2019,
  5. Naorem Anuja, “The Unlawful Activities (Prevention) Amendment Act,” https://scio.uk/wp-admin/post.php?post=3617&action=edit, Apr. 20, 2019.

This Article is written by Priya Singh, Student at West Bengal, National University of Juridical Sciences.


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