Context: Recently, the death of Father Stan Swamy, a Jesuit priest and tribal rights activist, while in judicial custody, has brought the stringent provisions of Unlawful Activities (Prevention) Act (UAPA) into the focus.

• There has been a rise in the use of UAPA over the past few years. Many activists, journalists and students have been booked under the Unlawful Activities (Prevention) Act (UAPA) in different cases across the country.
• As per the 2019 Crime in India Report compiled by the National Crime Records Bureau (NCRB), the total number of persons arrested under the Act in 2019 is 1,948.

Few examples of getting bail under UAPA

• Getting Bail under UAPA is a treacherous one. Father Stan Swamy’s case is one such example. Few other examples are,
• An NIA court in Mumbai acquitted two persons charged under UAPA citing lack of evidence after they had spent almost nine years in jail.
• Similarly, a Tripura man was discharged by the NIA court at Bengaluru. The NIA found that no charge could be framed in the absence of any material to link him with a shooting incident at the Indian Institute of Science on December 28, 2005.

Compensation for malicious prosecution under UAPA

• The judgments granting bail to student activists along with the death of Father Stan is a wake-up call for reforming the provisions of UAPA.
• In Nilabati Behera (1993) case, the court clarified that the doctrine of sovereign immunity has no application in the constitutional scheme. The Supreme Court under Article 32 or a High Court under Article 226 can decide compensation for a citizen for malicious loss of liberty.
• The doctrine of Sovereign Immunity: It means that the state or the sovereign can commit no legal wrong and is immune from civil suits and criminal prosecution
• The 277th Report of the Law Commission of India (2018) also strongly recommended institutionalized compensation.
• Recently in Bilkis Yakub Rasool (2020) case, the Supreme Court directed the Gujarat government to pay Rs 50 lakh in compensation.
• It’s clear, then, that the stage is set for compensation claims. So, India also has to include state compensations to limit malpractice as a practice.

About Unlawful Activities Prevention (UAPA) Act

• Origin: It was first promulgated in 1967 to target secessionist organisations and considered to be a predecessor of laws such as the (now repealed) Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA).

Aims

• It aims at effective prevention of unlawful activities associations in India.
• Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
• 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.

Key Provisions

Punishment: it has the death penalty and life imprisonment as the highest punishments.

• Both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner even if the crime is committed on foreign land, outside India.

Chargesheet:  The investigating agency can file a charge sheet in a maximum of 180 days after the arrests and the duration can be extended further after intimating the court.

• The 2004 amendment added the “terrorist act" to the list of offences to ban organisations for terrorist activities, under which 34 outfits were banned. Till 2004, “unlawful" activities referred to actions related to secession and cession of territory.

2019 Amendment: It empowers to designate individuals as terrorists on certain grounds provided in the Act, only organisations could be designated earlier.

• The Act empowers the Director-General of the National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is investigated by the said agency.
• The Act empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state
• Personal/financial information of an individual designated as a terrorist can be shared with various Western agencies.
• It allows for the seizure of properties that may be connected with terrorism.

It defines terrorist acts to include acts committed within the scope of any of the nine treaties listed in a schedule to the Act. Some of the treaties include:

• Convention for the Suppression of Terrorist Bombings (1997), and
• Convention against Taking of Hostages (1979)
• Convention for Suppression of Acts of Nuclear Terrorism (2005)

UAPA cases are tried by special courts.

UAPA More Stringent than Other Laws

• It is rare for an accused to get bail easily in a case under UAPA.
• The court can refuse bail if in its opinion the case is “prima facie” true.
• An accused cannot seek anticipatory bail and the period of investigation can be extended to 180 days from 90 days on the public prosecutor’s request — which means the accused has virtually no chance of getting bail by default.

Issues Surrounding the UAPA Act

• Curbs individual’ Fundamental Right: It is a draconian law that curtails fundamental rights of an individual in the name of tackling terror by making it very tough for the accused to get Bail.
• Ambiguous Definitions: Due to the broad and vague definition of terror acts, it can be misused to prosecute even constitutionally protected activity.
• Restricts the dissenting voices: Criticism of the state can be termed an act “likely to threaten” India’s sovereignty.

Unchecked power to the government: Persons barely linked to terrorist acts or organisations can still be brought within the UAPA’s ambit:

• by alleging that they work in nebulously defined “terrorist gangs” or “front organisations”
• by charging them under expansively worded offences such as “supporting” a banned organisation and holding property that could be used by it.

Undermines Federal Spirit: Some experts feel that it is against the federal structure since it neglects the authority of the state police in terrorism cases, given that ‘Police’ is a state subject under the 7th schedule of the Indian Constitution.
Low Conviction Rate: The fact that only 2.2 % of cases registered under the UAPA between the years 2016-2019 have ended in convictions by court highlights the above issues associated with this act.
Suggestion

• Prevent Misuse: The government needs to ensure that the law is not misused to harass genuine social activists.
• Effective Law enforcement: It needs to ensure that there are effective law enforcement mechanisms with checks and balances to prevent and punish terrorist attacks and it is put only to this use.
• Compensation: Higher standards of proof must be applied for conviction and there must be provisions like compensation to victims or punishment/enquiry against those who bring malicious complaints.
• Role of Judiciary: Judiciary needs to play an active role and provide early bail to the falsely accused and quash the baseless allegations at the early stage.

By: Shubham Tiwari