Redefining UAPA to Avoid Misuse: HC

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The Delhi High Court ruled that there is a need to redefine “terrorist activity” strictly to avoid misuse of UAPA in cases of ordinary penal offences.The Delhi High Court ruled that there is a need to redefine “terrorist activity” strictly to avoid misuse of UAPA in cases of ordinary penal offences.

About

• The Delhi High Court granted bail to three student activists accused in a Unlawful Activities (Prevention) Act related to the Delhi riots case.
• The recent data provided by the Ministry of Home Affairs indicates a sharp rise in cases registered under UAPA (from 897 in 2015 to 1126 in 2019).

Delhi High Court’s Orders

• Define Strictly & Narrowly:Delhi HC held that- the Court must be careful in employing the definitional words and phrases used in Section 15 in their absolute literal sense which defines “terrorist act”.
  • The UAPA is a stringent anti-terror law, and thus, its provisions must be interpreted more strictly and narrowly, as compared to other conventional penal offences.
• Different from Conventional Offences: While reiterating the essence of terrorism as laid down by the Supreme Court in various judgments, the court held that terrorism can’t be conflated with “law and order problems” or “violent protests”. 
  • In Hitendra Vishnu Thakur case, while calling terrorism an “abnormal phenomenon”, the Supreme Court said that the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order.
  • In PUCL v Union of India, the apex court termed terrorism as acts that challenge the whole nation. Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, razing the constitutional principles, and creating a psyche of fear.

• Protests are NOT Terrorism: The court has highlighted that when the protests turn violent, it would prima facie be seen as a “law and order” issue and not as terrorism. The court expressed its concern that the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’.
• Called Out Alleged Misuse: The three orders by the Delhi High Court are perhaps the first instance of a court calling out alleged misuse of the UAPA against individuals in cases that do not necessarily fall in the category of “terrorism” cases.
• Quoted Earlier Judgments: The bail orders also refer to how the Supreme Court itself, in the 1994 case of Kartar Singh v State of Punjab, flagged similar concerns against the misuse of another anti-terror law, the Terrorists and Disruptive Activities (Prevention) Act, 1987.

Unlawful Activities Prevention Act (UAPA)

• It was passed in 1967.
• The Act provides special procedures to deal with terrorist activities, among other things.
• Unlawful activity means any conduct which constitutes a crime or which contravenes any law whether such conduct occurred before or after the commencement of this Act and whether such conduct occurred in the Republic or elsewhere.
• Section 15 of the UAPA defines “terrorist act” and is punishable with imprisonment for a term of at least five years to life. In case the terrorist act results in death, the punishment is death or imprisonment for life.
• 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.
• The provisions of this Act apply also to— 

(a) citizens of India outside India; 

(b) persons in the service of the Government, wherever they may be; and 

(c) persons on ships and aircrafts, registered in India, wherever they may be.

Issues with UAPA

• Criminalizing Thoughts: It criminalizes mere thoughts and political protests that cause “disaffection” with the state. It is an assault of citizens’ right to expression which is also a collective right of groups and unions to disseminate their views. 
• Ignoring Fundamental Rights: It can simply be used to bypass fundamental rights and procedures. For instance, those arrested under UAPA can be incarcerated up to 180 days without a charge sheet being filed. It thus directly violates Article 21 of the constitution. 
• Highly Discretionary: It confers upon the government broad discretionary powers and also authorizes the creation of special courts with the ability to use secret witnesses and to hold closed-door hearings. 
• Hindering dissent: It is being used to suppress dissent through intimidation and harassment thus threatening the very existence of public debate and freedom of press and criminalizing the performance of civil liberties.
• Parliamentary Powers: The issue still remains whether the Parliament under any circumstance can classify the individual as terrorist only because it believes him to be involved in terrorism without any trial or whatsoever. 
• Restricts Freedoms: UAPA empowers the parliament to restrict the rights and freedoms of citizens to protect ‘the sovereignty and integrity of India’. 
• Stringent Provision of bail: The standard for bail under the UAPA is that it cannot be granted unless the court is of the view that the accused is innocent of the alleged offence. This is a prima facie standard, which means that the onus of proof of innocence, even for the purpose of obtaining bail, is effectively reversed. It is for the accused to show, for the purposes of bail, that he is innocent.
• Sharp Rise in Use: This caution is significant given the sharp surge in the state’s use of this provision in a sweeping range of alleged offences – against tribals in Chhattisgarh, those using social media through proxy servers in Jammu and Kashmir; and journalists in Manipur among others.

Way Forward

• A strong anti-terrorism law is needed in India, but its enforcement will always result in some draconian anomalies like the arrests of activists. 
• The existing UAPA does have effective provisions to combat terrorism (cognizable offence) but there are also some defects and demerits which needs to be addressed properly to make the law effective and efficient to prevent and combat terrorism. 
• The UAPA is a fairly harsh law drafted to deal with some harsh circumstances and with people spending more than a decade in jail before being acquitted, its potential for misuse has been realised. 
• UAPA, in relaxing timelines for the state to file chargesheets and its stringent conditions for bail, gives the state more powers compared to the Indian Penal Code.
• The Act needs to be amended, in order to ensure a constitutional functionary who is independent from the Executive, be in charge of sanctions for prosecutions and investigations under this Act. Maybe a High Court Judge could be designated for this purpose. 
• Terrorism and unlawful activities are ones that always create political issues. If the Act has to work, its application must, at all times, look apolitical.

Sources: IE+TH