INTRODUCTION:
There is a long history of terrorism in India. It’s a sensitive issue causing peril and disjunction in the minds of the people. Till now, terrorism has evolved much, as modes of operation of terrorist organizations have changed continuously in past few years.
There have been many anti-terrorism operations, peace agreements, etc. by India to deal with the problem of terrorism. Some of them showed positive result while other just failed. Thus, there is a crucial need to understand the root cause of this and measures to prevent these activities. So, here in this article, we are going to discuss the constitutional validity of the Unlawful Activities (Prevention) Act, 2019.
BACKGROUND:
India has made various Acts to immune itself from these terrorist attacks. Some of them got repealed due to misusing power by law enforcement agencies.
The first anti-terrorism law was “The Terrorist and Disruptive Activities Act, 1985”. Through this Act, two new offenses were introduced i.e., “terrorist act” and “disruptive activities” and also the definition of “terrorism” was provided through this Act. However, this Act got repealed in 1995 due to allegations of abuse.
After the terrorist attack on parliament in 2001, the Prevention of Terrorism Act, 2002 came into force. The act provided arbitrary power to the investigating agencies to detain as well as prosecute for terrorist-related offenses. Due to the misuse of power by these agencies the Act lapsed in 2004.
In 1967 another Act came into force i.e., the Unlawful Activities (Prevention) Act, 1967. The aim of the Act is the effective prevention of unlawful associations in India. Its objective was to deal with activities that were against the integrity and sovereignty of India. The Act gave power to authorities to declare any association unlawful.
After the lapse of the Prevention of Terrorism Act, 2002, the Unlawful Activities (Prevention) Act, 1967 got amended in 2004 and then it got amended in 2008. Further, this Act got amended by the Unlawful Activities (Prevention) Amendment Act, 2019.
The Act bought amendments to many sections that include Sections 2, 25, 35, 36, 38, 43, and 45. Schedule 1st, 2nd, and 4th also got amended.
The Act now gives power to the government under Sections 35 and 36 to declare an individual as a terrorist on the same grounds which gave power to the central government to proclaim an association as a terrorist organization. And the names of terrorists will be included in the 4th schedule of the principal act.
The new amendment of 2019 has inserted a clause that additionally provides power to investigate offenses related to terrorism to the officers of the National Investigating Agency (NIA) of the inspector rank or above.
CONSTITUTIONAL VALIDITY OF THE ACT:
The Act violates Article14, 19(1)(a), and 21 of the Indian Constitution which guarantees the right to equality, the right of freedom of speech and expression, and the right to life of the citizens.
The amendment gives a vague definition of terrorist. The grounds which determine whether an individual is a ‘terrorist’ are arbitrary and unlimited power has been provided to the government. This is unreasonable and hence violates Article 14.
Section 35 of the Unlawful Activities Prevention Amendment Act, 2019 adversely affects the Fundamental Right to free speech and expression as enshrined under Article 19(1)(a) of the Indian Constitution.
Unlawful Activities Prevention Amendment Act, 2019 also violates the right to reputation as part of the right to life, by tagging an individual as a terrorist even before he has been proved guilty. Hence, there is a violation of Article 21 of the Indian Constitution.
There are various cases in which people to whom government thought of being involved in terrorist attacks in India but later on they were proven innocent. According to the statistics, till 2015 more than 72% of people who were charged under the Unlawful Activities Prevention Act have been acquitted of all charges.
One such case is the Hubli Conspiracy case, in this seventeen persons were arrested in 2008 on a charge of conspiracy for sabotage across South India and were later acquitted by the first additional district and sessions court.
The second case is Mohammad Javed Abdul Wahid Shaikh v. State of Maharashtra, Wahid Shaikh was accused of the 7/11 Mumbai train blasts in 2006. He was acquitted in 2015 by MCOCA court, after spending 9 years in jail.
Another case is Jyoti Chorghe v. State of Maharashtra, in this case, two women Jyoti Chorghe and Sushma Ramteke were arrested because of having possession of Naxalite literature. Thus, after spending one and a half years in jail there bail application came before the High Court.
Unlawful Activities Prevention Act, even upholding an ideology without committing any violent act is a crime. Membership or association with any such organization is a crime. But the word “MEMBERSHIP” used in the Act is not defined. Search, seize and arrest can take place without any warrant. Presumption for being guilty as a terrorist is made without proving it in court. So, how the Act with the ample arbitrary power given to central and state government can be held constitutionally valid?
There is a phrase used by Indian courts, ‘let hundred guilty be acquitted, but no innocent should be punished. But it looks like that no one even thought of this while making the Unlawful Activities Prevention Act.
CONCLUSION:
Terrorism is a global issue. The security of the individual is one of the basic human rights and it has to be protected. And for this proper anti-terrorism mechanism should be adopted.
The Unlawful Activities Prevention Act, 2019 is empowering the government with arbitrary power. It imposes restrictions on various Fundamental Rights of citizens like, on right to dissent, right to reputation. Thus to prevent the right of citizens government should be careful while slapping the charges under this Act.
SUGGESTIONS:
- The coordination between various agencies and NIA should be smooth.
- Police should file the charge sheet within 90 days instead of 180 days.
- Time-bound reports should be provided by the state.
