GS3/GS2 Paper
Syllabus: Internal Security
Source: TH
Context: The article discusses a recent judgment by the Division Bench of the Jammu and Kashmir High Court in the case of journalist Fahad Shah, highlighting issues related to personal liberty and the application of the Unlawful Activities (Prevention) Act (UAPA), India’s primary anti-terror statute.
What did the court say?
The court granted bail to Fahad Shah and partially set aside the charge against him. It emphasized the need for circumspection in enforcing anti-terror laws that allow vast interference with personal liberty. The High Court raised concerns about the UAPA’s procedural aspects, specifically, Section 43-D(5), which restricts bail if accusations are deemed ‘prima facie true.’
The judgment rejected the government’s argument that publishing an article could be considered an act of terror, emphasizing the need for common sense in criminal law. It underscored that the UAPA should not extend to punishing alleged defamation of the country.
What is UAPA?
The Unlawful Activities (Prevention) Act (UAPA) is an anti-terrorism law enacted in India (in 1967) with the aim of preventing unlawful activities and combating terrorism. The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
Key features of UAPA:
- Under UAPA, both Indian and foreign nationals can be charged.
- It will be applicable to the offenders in the same manner, even if the crime is committed in a foreign land, outside India.
- It has the death penalty and life imprisonment as the highest punishments.
- Under the UAPA, the investigating agency can file a charge sheet in maximum of 180 days after the arrests and the duration can be extended further after intimating the court.
- As per amendments of 2019: The Act empowers the Director General of National Investigation Agency (NIA)to grant approval of seizure or attachment of property when the case is investigated by the said agency.
- The Act empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.
- It also included the provision of designating an individual as a terrorist.
Arguments in Favour:
| Arguments | Description |
| National Security | UAPA empowers the government to preventively act against individuals and organizations involved in or supporting terrorism, safeguarding the nation’s security. |
| Counterterrorism Measures | Designation of individuals and organizations like Masood Azhar, Hafiz Saeed, and Lashkar-e-Taiba as terrorists under UAPA, enabling asset freezes, travel bans, and sanctions. |
| Preventive Detention | UAPA enables the preventive detention of individuals suspected of unlawful activities, crucial for averting potential threats in cases lacking sufficient evidence for formal trials. |
| Global Commitments | UAPA amendments align with the United Nations Convention for the Suppression of the Financing of Terrorism, showcasing India’s commitment to international efforts against transnational terrorism. |
| Effective Prosecution | Use of UAPA in prosecuting and convicting Ajmal Kasab, the lone surviving terrorist of the 26/11 Mumbai attacks, based on intercepted communications, electronic evidence, and modern investigative techniques. |
| Deterrence | Severe penalties under UAPA in the case of the 2001 Parliament attack, discouraging individuals from engaging in or supporting activities detrimental to the nation’s security, as seen in the hanging of Afzal Guru. |
Issues with UAPA:
| Issues with UAPA | Description |
| The broad and vague definition of ‘Terrorism’ | The UAPA’s definition of ‘unlawful activities’ is broad and vague, potentially encompassing legitimate political activities or dissent under the label of ‘terrorism.’ |
| Pre-emptive Arrests and Detentions | UAPA allows pre-emptive arrests and prolonged detentions without bail, permitting arrests based on suspicion or the anticipation of potential offences. |
| Poor conviction | A 2022 PUCL report revealed that less than 3 per cent of UAPA arrests resulted in convictions between 2015 and 2020, raising concerns about the legitimacy and effectiveness of the charges. |
| State Overreach | The Act includes acts “likely to threaten” or “likely to strike terror,” granting broad powers to label individuals, including ordinary citizens or activists, as terrorists without the actual commission of such acts. |
| Denial of Rights | Section 43(D)(5) of UAPA prevents the release of bail if the police charge sheet indicates reasonable grounds for believing the accusation is prima facie true. Only a small percentage of detainees secured bail according to the PUCL report. |
Court’s Perspective on UAPA:
- Justice Rohinton Nariman urged the SC to strike down “the offensive portions of the UAPA”.
- SC: Arup Bhuyan vs State Of Assam (2011): Mere membership in a banned organization is not incriminating; involvement in violence or incitement is necessary.
- SC: The People’s Union for Civil Liberties v. Union of India (2004): Combating terrorism with human rights violations is self-defeating.
- SC: Union of India v. K A Najeeb (2021): Constitutional courts can grant bail, overriding UAPA restrictions, if the fundamental rights of the accused are violated.
- SC: Mazdoor Kisan Shakti Sangathan v. Union of India (2018): Legitimate uprisings against governmental actions are recognized, emphasizing peaceful and non-violent protests.
Way forward:
| Reform Measures | Brief Description |
| Amend the Law | Narrow down vague definitions like “unlawful activity” and “terrorist act” to exclude constitutionally protected activities such as peaceful protests and dissenting opinions. |
| Shift the Burden of Proof | Ensure the burden of proof lies with the prosecution, not the accused. The current UAPA reverses the normal principle of criminal law, making it challenging for the accused to get bail or a fair trial. |
| Establish a Review Mechanism | Create an independent review mechanism to monitor and challenge government decisions on designations. The existing process lacks transparency and can be biased. |
| Use the Law as the Last Resort | Reserve UAPA for extreme cases and avoid using it as the primary response to security threats or social unrest. It should not suppress dissent, criticism, or opposition, respecting citizens’ rights and freedoms. |
| Promote Dialogue and Reconciliation | Emphasize the use of dialogue, negotiation, and reconciliation as preferred methods to address conflicts and grievances, avoiding unnecessary use of the UAPA. |
Conclusion
Drawing the line between individual freedom and state obligation to provide security is a case of classical dilemma. It is up to the state, judiciary, and civil society, to strike a balance between constitutional freedom and the imperative of anti-terror activities.
Mains Link:
Do you agree that the Unlawful Activities (Prevention) Amendment Act could prove catastrophic for fundamental rights? Is sacrificing liberty for national security justified? Discuss and provide your opinion. (15M)
