Updated: Jul 31
During early years there were various organisations and associations that were not willing to be part of India. They acted like a bad fish that would manipulate the thinking of its whole surrounding. Those associations or organs that were made functioned against the interest of the country were put on rest (ban). Article 19 of Constitution of India guarantees fundamental freedom of expression, assembly and associations had been continuously defanged since 1951. By the very First Amendment Act 1951 several changes were made to the fundamental rights provisions of the Indian constitution. Few words like "reasonable" before restrictions and "public order" as being on more ground for abridging fundamental rights were then added in the Article 19 of Indian Constitution.
In the 1960's Indo-China war happened, and then Indian government thought that there are communist parties who favour China during the war period. There were few politicians as well who openly favoured China. On the other hand in Tamil Nadu protests were going on against Hindi language at that time. DM Party (Dravida Munnetra Kazhagam) openly said that if they came in power they'll demand for secession. So to control all this, changes were needed that brought up the amendment and gave rise to the formulation of UAPA.
An Indian law has been made so as to prevent unlawful activities; that act is called Unlawful Activities Prevention Act 1967. Its main objective was to form powers available for handling activities directed against the ‘integrity and sovereignty’ of India. To put reasonable restrictions within the interest of sovereignty and integrity of India, the National Integration Council appointed a committee on National Integration and Regionalization. In accordance with the acceptance of the recommendations of the commission, the Sixteenth Constitution Act, 1963 was promulgated in such a way as to impose reasonable restrictions in the interest of the sovereignty and integrity of India, such as freedom of speech and expression, the right to assemble peacefully and without arms. and the right to form associations or unions. The National Integration Council (NIC) appointed a committee on National Integration and Regionalism that recommended further restrictions on fundamental rights in 1963. In order to implement the provisions of the 1963 law, the bill on the prevention of illegal activities was presented to Parliament and received the assent of the president on December 30, 1967. Indian states could now declare associations or bodies which demanded the secession of India as “illegal”. In this way, the UAPA has given powers to the central government to impose all bans - Indian on associations. Following amendments are made in the law: -
The Unlawful Activities Prevention Amendment Act, 1967
The Criminal Law Amendment Act, 1972.
The Delegates Legislation Provisions Amendment Act, 1986
The Unlawful Activities Prevention Amendment Act, 2004
The Unlawful Activities Prevention Amendment Act, 2008
The Unlawful Prevention Amendment Act, 2012
The Unlawful Prevention Amendment Act, 2019
The 2004 Amendment Act
In 2004, amid public outcry against the abuse of the Prevention of Terrorism Act (POTA), the government then decided to repeal it, but made major changes to the UAPA at the same time. The revocation of POTA was an election promise done by the then newly elected Congress government. The amendments in UAPA made considerable changes in the definition of ‘unlawful activity’, including the definition of ‘terrorist act’ and ‘terrorist organisation’ from the revoked POTA. It also introduced the concept of a ‘terrorist gang’. In fact, chapters IV, V and VI handling ‘punishment for terrorist activities’, ‘forfeiture of proceeds of terrorism’ and ‘terrorist organisations’ respectively, were borrowed from the revoked POTA.
The UAPA has been incorporated with the schedule of the POTA of ‘terrorist organisations’. Terrorist and Disruptive Activities (TADA) and POTA was removed as it was earlier a part of anti-terror acts. Even if one had to choose the logic of "desperate times, we need desperate measures", where a restriction on fundamental rights is cheap given the extraordinary situation of terrorist threat, one cannot justify the absence a sunset clause within the UAPA.
The 2008 and 2012 Amendment Acts
On December 17, 2008, an amendment on UAPA was moved and was thus adopted following the attack that happened in Mumbai on November 26, 2008. Other provisions such as POTA and TADA regarding maximum length of police custody, incarceration without charge and bail restrictions have been incorporated into the UAPA. The 2012 amendments to the UAPA further broadened the already vague definition of "terrorism" to include offenses that threaten the economic security of the country.
Draconian Provisions of UAPA
In this act, there is a vague definition of terrorism that is mentioned. It is given that any non violent political activity (e.g. political protest) against government may also lead to UAPA provision against a person. If a person uses slangs against the government that are offensive in manner then that person shall be prosecuted under UAPA.
UAPA authorises the government to ban ‘unlawful organisations’ and ‘terrorist organisations’ which is subjected to judicial review. In this an organisation may go to the Court with the appeal that they are not the part of a terrorist organisation. But the government can claim an organisation as terrorist that happened with SIMI (Student Islamic Movement of India) in the year 2002. It was a student’s body earlier but few students were found to be suspected in various unlawful activities hence the whole organisation was banned all over India.
The definition of "illegal activities" includes "rejection" or "questioning" of the territorial integrity of India and "disaffection" against India. If these things are done that divides India then UAPA can be enforced and ban is put. The problem here lies is that if a person raises the voice against the State that he/she is not getting proper facility towards certain things or Indian government is unjust, in that case also UAPA can be enforced on a person most likely. This can be termed as thought-crime which means you think and you commit a crime.
UAPA allows police to search, seize and arrest without warrant. Confinement without a charge sheet for up to 180 days and police custody can be up to 30 days. When it comes to anticipatory bail it is out of question as bail is an impossible thing to ask for when UAPA charges have been put. The presumption of guilt for terrorist activity is made without proving it in the Court. Hence, creation of special courts with wide discretion to hold in camera proceedings (closed door hearings) and use of secret witnesses. There is no sunset clause and no provisions for mandatory periodic review.
Repeal of the UAPA
On December 15, 2008, three weeks after a sea attack in Mumbai on November 26, killed 166 of the weakest and injured more than 300 others, the Indian government introduced two new anti-terrorism laws to parliament. Amendments to the Unlawful Activities (Prevention) Act 1967 (UAPA) was adopted by the Parliament. The National Investigation Agency Act (NIAA) was thus passed by India’s principal federal counterterrorism law. In 2008, law’s provisions were mentioned that mirror earlier counterterrorism legislation. Previous governments had allowed those laws to fall, or repealed them, because they had led to serious human rights violations. The Terrorist and Disruptive Activities (Prevention) Act 1985 (TADA) may have been the subject of a sunset clause in 1995, while the Prevention of Terrorism Act 2002 (POTA) was repealed in 2004. Serious human rights violations by the government have occurred during counterterrorism operations, including arbitrary arrests, torture, extrajudicial killings and enforced disappearances.
Under POTA the abuses were so widespread and heavy that the then-opposition Congress Party demanded the repeal of the law within the 2004 election campaign, and swiftly moved to try to do so once in office. In response to the 2008 attacks, several of the most important offensive provisions of TADA and POTA have been restored, raising fears that India will repeat past human rights violations.While India, like all governments, incorporates a responsibility to guard their citizens from terrorist attacks, the fight against terrorism must be conducted in accordance with international human rights law. Of particular relevance is that the International Covenant on Civil and Political Rights (ICCPR), to which India could be a state party, which sets out fundamental group action and fair trial protections that are applicable in the least times, even during states of emergency. As world organization SC Resolution 1456 corroborate, “States must make sure that any measure taken to combat terrorism must suits all their obligations under law … specifically international human rights, refugee and humanitarian law.”
The UAPA has been employed by all enforcement agencies throughout the country because the foremost anti-terror law though most of the States have their own anti-terror laws like the Maharashtra Control of Organised Crime Act, 1999; Chhattisgarh Special Peace Act, 2005; Jammu and Kashmir Public Safety Act, 1978; and State Peace Act, 1992. The state prosecution agencies are employed additionally to the UAPA as local law are sometimes less draconian. The repeal of POTA was essentially eyewash. A facet of civil liberties and democratic rights organizations across the country has acted as an umbrella organization called the "Popular Movement Against the UAPA" has been launched since January 2014.