Mr. Amit Shah, Minister of Home Affairs, introduced the Unlawful Activities (Prevention) Amendment Bill, 2019 in Lok Sabha on July 8, 2019. Eventually, was enforced on December 30, 1967. The bill amends the Unlawful Activities (Prevention) Act of 1967. Among other things, the Act establishes special procedures for dealing with terrorist activities.

Who can Commit Terrorism:

Under the Act, the central government may designate an organization as a terrorist organisation if it:

1. Commits or participates in acts of terrorism,
2. Prepares for terrorism,
3. Promotes terrorism, or
4. Is otherwise involved in terrorism.

The Bill also gives the government the authority to label people as terrorists for the same reasons.

UAPA

Unlawful Activities Protection Act, an act infamous for its rigorous application. Time and again it is used by those in power to supress dissent, just the way it was witnessed recently in 2019, how thousands of activists were thrown into jails for voicing their opinion and dissent against Citizenship Amendment Act and National Register of Citizens.

The conviction is strongly supported by the facts and figures:
Union Minister of State for Home Nityanand Rai said in Rajya Sabha that 1,421 people were arrested in 2018 under the UAPA, 1,948 in 2019 and 1,321 in 2020.[1]

Justices Chandrachud, emphasised upon the fact that criminal legislations including UAPA, should not be misused for quelling dissent or harassment of citizens.'' He further said that deprivation of liberty even for a single day is one day too many, and that we must always be mindful of the deeper systemic implications of our decisions.[2]in the Arnab Goswani case.[3]

What Makes UAPA 'Draconian?

• Section 15 of the Act, defines the term Terrorist Act. However, it is seen that the definition provided in UAPA is substantially different from that being used and promoted by the United Nations (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism
   
• As per the UN Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms, the definition of 'Terrorist Act' focuses on three elements; use of deadly means, with an intent to create fear in the mass or with the intent of compelling government or International organisation to do or refrain from doing certain thing with an aim for promoting an ideology.
   
• On the other hand, UAPA covers a broader spectrum creating ambiguities by including death or injuries to any person, damage to any property, etc.
   
• Section 43(D)(5), 'Denial of Bail'. This is the most problematic provision of the Act, as this prevents the release of an accused on Bail, if once the chargesheet has been filed by the police. The effect being that once the charges have been brought it is difficult or almost impossible to get bail. Bail is the safeguard and guarantee of the constitutional right to liberty.
   
• State Overreach: It also includes any act that is "likely to threaten" or "likely to strike terror in people," granting the government unrestricted authority to label any ordinary citizen or activist a terrorist without the commission of these acts.
   
• It grants the state authority broad powers to detain and arrest individuals suspected of terrorist activity.
   
• As a result, the state grants itself greater powers in comparison to the individual liberty guaranteed by Article 21 of the constitution.
   

It is extremely difficult, in fact almost impossible to get bail under UAPA, as we witnessed in the case of Stan Swamy case where in he died while still in custody, furthermore even the investigation period is considerably long, adding on to this comes in the most problematic feature of the law, i.e., an accused can apply for bail only after 6 months.

Additionally, no bail is granted until and unless court is satisfied with the fact that prima-facie there is no case however, there is no assessment of the evidences to make a decision at the bail stage. Hence, it additionally leads to the violation of right to speedy trial. The Delhi High Court recently raised the question of how long a trial under the UAPA could be. Even Supreme Court, stated that the bar would melt down against bail if there is no speedy trial.

This is the need of the hour as there are thousands who were acquitted after years of stay in the jail, after getting mentally traumatised and physically tortured. All of these circumstances call for a quick call to revisit the law and not just the bail provisions. As the UAPA, as the name suggests, was intended to be a preventive measure.

The nomenclature also makes it abundantly clear that it was designed for 'illegal activities.' If adding 'terrorist activities' was a demand, stringent bail provisions were a refusal. The UAPA became what it was never meant to be due to compelling circumstances. It is past time that the legislative intent of granting bail in a relatively easy manner be restored to UAPA and civil liberties be respected. Also, as per my observation so far, in any case, the number of convictions under UAPA laws has been way minimal than number of arrests being made.

End-Notes:

1. 4,690 Arrested Under Anti-Terror Law UAPA, 149 Convicted, Parliament Told, Press Trust of India (December 22, 2021, 2:42 PM) https://www.ndtv.com/india-news/4-690-arrested-under-anti-terror-law-uapa-149-convicted-parliament-told-2665004 last accessed at 12:02 PM
2. UAPA is draconian, it must go, DHNS(Jul 22,2021, 1:28 AM) https://www.deccanherald.com/opinion/second-edit/uapa-is-draconian-it-must-go-1011351.html last accessed at 12:16PM
3. Arnab Goswani Vs. UOI (2020)14 SCC 12

Written By: Divya Patel, 3rd Year- Institute of Law, Nirma University

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