The Constitution’s 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 and impose reasonable restrictions on rights bestowed under the 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 in 1967, a resolution was passed by the National Integration Council (NIC) headed by the Prime Minister. The NIC urged the parliament to frame a law to tackle unlawful activities and organisations.
The UAPA of 1967 can broadly be categorised into its three primary objectives.
- Declaration of association as unlawful.
- Creating a penalty for being a member of an unlawful association.
- Creating a penalty for dealing with the funds of an unlawful association.
However, the Act has been amended seven times, with the recent amendment being made in 2019, to accomodate for the changing techniques of handling terrorism, from shifting from 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 a 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 However, both the laws were repealed on the grounds that the statutes were misused, overused and abused, but the new amendments in the UAPA are in line with these repealed laws.
Prominent Amendments in 2019
The significant amendments made in 2019, in the parent Act of 1967, included the designation of power to designate a person as a “terrorist”. The parliament amended Section 35 and 36 of Chapter VI, which allowed the Central government to tag an individual as “terrorist” if he/she: commits or participate in terrorist activities, prepares for terrorist acts, encourage terrorism or otherwise is involved in terrorism.
Secondly, the Act amended Section 25 and has empowered the NIA to conduct a raid and allowed for the seizure of properties that are suspected to be linked to terrorist activities, by taking permission from the Director-General of NIA. Before the 2019 amendment, NIA officers were required to take the permission from the DGP of the state for raid and seizure of properties. This very amendment in Section 25 seems to attack the federal structure of the nation.
Thirdly, officers apart from the Deputy Superintendent or Assistant Commissioner of Police, have been empowered to investigate cases under Section 43.
Also, 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 be described as a terrorist act.
The Unlawful Activities (Prevention) Amendment Act, 2019, is yet again another machine to curb the dissenting voice of the nation. Despite searing opposition to the bill, it was passed in parliament. The law was criticised mainly on two grounds. Firstly, the new amendments undermine Human Rights. Secondly, the new bill undermines the federal structure of the nation.
The power of the union to designate an individual as a “terrorist”, seems to be a problematic provision, as the Act fails to define what constitutes a terrorist. The vagueness in the fundamentals of the Act means a massive discretionary power lies in the hands of the union and its investigative authorities, which allows them to bring in anyone in the domain of the “terrorist offence”. Moreover, the criteria for designation of an individual is the same as that of an organisation, which means the Act fails to recognise that an individual, unlike an organisation, has fundamentals rights enshrined under Part III of the Constitution. As well as this, 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 to 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 the principle of “innocent until proven guilty”, which is a universal human right under the International Covenant on Civil and Political Rights, 1967.
The law enacted to combat terror in the nation is a threat to its citizens. As it is very much possible that it will be misused as other laws such as MISA, POTA and TADA have, which were all repealed. The recent amendment in the UAPA are on the same lines as that of the repealed law and is a threat to democracy. As it can be speculated, through the recent arrests of students, activists and journalists who do not comply with the government, the law is being used to curb the voice of its people.
- Anushka Singh: “Criminalising Dissent Consequences of UAPA,” Economics & Political Weekly, Sep. 22, 2012.
- “Designating Individual as Terrorist,” Economics & Political Weekly, Aug. 10, 2019.
- 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.
- “The Unlawful Activities (Prevention) Amendment Bill,” 2019,”https://www.prsindia.org/billtrack/unlawful-activities-prevention-amendment-bill-2019,
- Naorem Anuja,”The Unlawful Activities (Prevention) Amendment Act,”https://scio.uk/wp-admin/post.php?post=3617&action=edit, Apr. 20, 2019.