Mains Marathon 2024

Approach Give a brief introduction about UAPA Mention the merits of UAPA in fighting terrorism Highlight the demerits of UAPA Suggest a way forward for UAPA in fight against terrorism Conclude Suitably

Introduction

The Unlawful Activities (Prevention) Act (UAPA) of 1967 was enacted to prevent unlawful activities threatening India's sovereignty, integrity, and security. Empowering the National Investigation Agency (NIA) for nationwide investigations, the Act plays a pivotal role in countering terrorism. However, its stringent provisions have sparked debate over potential misuse and human rights concerns.

Body

Merits of UAPA:

• Effective Counter-Terrorism Tool: UAPA empowers swift action against individuals and organizations involved in terrorism, allowing the central government to declare any activity as unlawful, thereby preventing and disrupting potential threats.
  • The Act allows the government to designate both individuals and organizations as terrorists, creating a strong deterrent. This power was further strengthened by the 2019 amendment.
• Preventive and Expedited Measures: UAPA enables preventive detention, with the investigating agency allowed up to 180 days to file a charge sheet, extendable with court approval. This ensures timely intervention and effective prosecution.
• Global Alignment and Applicability: UAPA aligns India’s anti-terror laws with international standards and applies to both Indian and foreign nationals, even if the crime is committed abroad.
  • The Act includes severe penalties, including death and life imprisonment.
• Expanded Scope Beyond Secession: Initially focused on secession and cession, UAPA’s scope was broadened in 2004 to include terrorist acts, thereby enhancing its effectiveness in addressing a wider range of threats to national integrity.

Demerits of UAPA:

• Vague Definition of Terrorist Acts:
  • The UAPA offers an overbroad and ambiguous definition of "terrorist acts," allowing for the inclusion of a wide range of activities, which may not meet the international standards set by the United Nations. This broad definition increases the potential for misuse.
• Denial of Bail:
  • Section 43(D)(5) of the UAPA makes it extremely difficult for accused individuals to obtain bail, as it prevents release if the police present prima facie evidence. This provision undermines the constitutional right to liberty, as bail is a fundamental safeguard.
• State Overreach and Violation of Fundamental Rights:
  • The Act grants the state sweeping powers to arrest and detain individuals on suspicion of terrorism, potentially infringing on constitutional rights such as free speech, assembly, and association. This can lead to the targeting of activists, journalists, and marginalized groups.
• Undermining Federalism:
  • The UAPA's provisions allow the central government to take over terrorism cases, bypassing state authorities, which may undermine the federal structure as 'Police' is a state subject under the 7th Schedule of the Indian Constitution.
• Low Conviction Rate and Judicial Overreach:
  • The low conviction rate (around 18%) highlights the inefficacy of the UAPA in securing justice. Additionally, the 2019 amendment allowing the government to designate individuals as terrorists without judicial review raises concerns about due process and potential misuse.

Way Forward for UAPA

• Selective Application and Rights Protection: UAPA should be used as a last resort, focusing on protecting fundamental rights and avoiding its misuse to suppress dissent or criticism.
  • Dialogue and negotiation should be prioritized to resolve conflicts.
• Amendment for Clarity: Narrow down the definition of “unlawful activity” and “terrorist act” to exclude constitutionally protected activities such as peaceful protests, dissenting opinions, and ideological expressions. The current definitions are vague, broad, and subjective, and can be used to criminalize any act that the government deems undesirable or threatening.
  • Dissent is an indispensable feature of the right to free speech under Article 19(1)(a) as rendered in Maqbool Fida Hussain v. Rajkumar Pandey (2008).
• Independent Review and Bail Clarity: Establish an impartial review mechanism for government decisions under UAPA, and clarify bail provisions to emphasize the presumption of innocence, preventing arbitrary denial of bail.
  • Recently, the Supreme Court in Jalaluddin Khan vs Union of India case has held that bail should be the rule and jail an exception even under laws such as the Unlawful Activities Prevention Act (UAPA).

Conclusion

Balancing individual freedom with state security under UAPA remains a complex challenge. It is crucial for the state, judiciary, and civil society to collaborate in ensuring that the act is applied judiciously, protecting constitutional rights while effectively combating terrorism.