“With guns you can kill terrorists, with education you can kill terrorism.”Malala Yousafzai
INTRODUCTION
India’s Anti-terrorism law, the Unlawful Activities Prevention Act, 1967 was implemented by the Legislation to prevent any kind of unlawful activities which created a threat for the public and the country. The Act was made to keep a check on the act of terrorism. It has been amended time and against for its successful implementation.
The UAPA – an upgrade on the TADA (Terrorist and Disruptive Activities (Prevention) Act), which was permitted to slip by in 1995 and the Prevention of Terrorism Act (POTA) was revoked in 2004 — was initially passed in 1967 under the then Congress government drove by previous Prime Minister Indira Gandhi. Ultimately, alterations were acquired under the progressive United Progressive Alliance (UPA) governments in 2004, 2008 and 2013.
The Present Act gives absolute power to the Government to India to declare any activity as they deem appropriate as unlawful and publish the same in the official gazette. Since the beginning, the Act has suffered a lot of criticisms from the opposition parties and the general public. The definition of the word ‘Terrorist act’ under the Act is very vague and vast and most of the time misused by public officials. The Act permits the detention of any person found to be engaged in unlawful activities without being given any legal protection for 180days which is completely against the personal liberty of an Individual. This gives the public official immense power to misuse the Act.
The meaning of a terrorism act in UAPA is obscure. Revisions to UAPA in 2019 have enabled the Union government to declare a person as a “terrorist” without giving him a fair chance to represent himself before the judiciary. Police authority under UAPA can likewise be reached out for 30 days, expanding the chance of custodial brutality.
The Unlawful Activities (Prevention) Act condemns the key right to the relationship as well as weakens the qualification between political dispute and crime by condemning dissenter voices and acts. All the while, political contradiction endures significant delegitimization since specific philosophies, gatherings and convictions are delivered criminal. This induces a culture of political witch-chases where chosen associations that question the authenticity of the State and the decision classes are banned.
Under UAPA, the greatest specified period for documenting a charge sheet is 90 days, which might be reached out by the court to 180 days. The 2019 Watali judgment of the Supreme Court made getting bail under UAPA even more troublesome. Grave bail conditions can successfully put the blamed under numerous years for detainment without preliminary. While 317 charge sheets were recorded under UAPA in 2018, police required 1-2 years to document the charge sheets in more than 16% of cases. In 10 cases, the charge sheets were recorded over two years after the cases were enlisted.
HOW THE PROVISIONS OF THE UAP ACT ARE GETTING MISUSED
According to Section 15 of the UAPA Act, a person can be identified as a terrorist if that individual uses criminal force or does abduction to blackmail the Government. Now, if we trace back the cases in which the individuals are charges with the provisions of UAPA, we will notice that the accused did nothing which comes under the definition of Section 15 of the Act. The Ministry of Home Affairs (MHA), in its report for 2019 gave the statistics which showcased that Manipur registered the highest number of cases (306) under UAPA. Many other states such as Tamil Nadu (270), Jammu & Kashmir (255), Jharkhand (105), also registered above 100 cases in the year. The last two years witnessed many more renowned activists, social workers even students, such as GautamNavalkhe, Varavara Rao, Vernon Gonsalves, Father Stan Swamy, falling prey to the provisions of UAPA. The statistics become more appalling after compiling it in the last five years which gives a total of 5,128 cases under UAPA.
The Indian criminal jurisprudence labels a person, innocent until they are proven guilty. Justice Krishna Iyer while deciding the case of State of Rajasthan vs Balchand elucidated the law regarding bail as “the rule is bail, not jail”. However, Section 43D(5) of the UAPA Act acts as an exception to the abovementioned rule which gives a unique authority to the courts of rejecting bails. This process empowers the government to suppress the voices of dissents.
Safoora Zargar’s case is the best-fit example. In this case, Safoora Zargar was arrested on the charges of conspiring with the rioters and instigating them by her speech. To concrete the charges, Delhi Police submitted several pieces of evidence in the Patiala House Court, Delhi. The evidence consisted of glass bottles, Whatsapp chat and slingshots. These articles are far from resembling explosives or bombs. Even then, the court blatantly ignored Section 15 of the UAPA Act and rejected the bail plea. Afterwards, the Delhi High Court granted bail to Safoora Zargar but that also on medical grounds and not on the merits of the case.
The year 2020 also saw a hike in UAPA cases. One such case was registered in the Sophian district in September 2020. In this case, a teacher and eight students were booked under Section 13 of the UAPA Act merely for organising a cricket match in the memory of a militant who was killed in 2018. However, all the accused were given bail as the police were not able to file the charge sheet in the stipulated period. Even in the cases where the police file the charge sheet on time, the conviction rate is very low. Going by the data released by the Union Home Ministry in February 2020, only 2.2% of cases saw the conviction out of all the cases registered under UAPA Act and Sedition. We can easily figure out that the core factor behind such low convictions in cases about UAPA is the ill intention of the government. It shows that the so-called evolved law of UAPA is even degraded than the erstwhile POTA and TADA laws. The UAPA laws are also getting used today for curbing the fundamental rights of the citizens of India which makes it more draconian than before.
WHAT IS THE CURRENT STAND OF THE JUDICIARY ON THE UAP ACT?
Recently Delhi High Court while deciding a case related to UAPA, laid down some principles regarding the imposition of UAPA provisions. On 15th June 2021, Justice Siddharth Mridul and Justice Anup Jairam Bhambhani decided a bail application in the matter of, “Asif Iqbal Tanha vs State of NCT of Delhi” where Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita were accused of Delhi-riots. In this case, the main issue was the application of Section 15, 17 and 18 of the UAPA Act. During the proceedings, the judges showed utter shock at the application of an anti-terror law in such a trivialized way. Let’s take a look at the principles laid down by the High Court which must be kept in mind while dealing with the cases of UAPA:
SECTION 15 OF THE UAPA ACT SHOULD BE IMPOSED MORE SOLEMNLY
Laying greater emphasis on the phrase, “terrorist act”, the High Court stated that it must be in sync with the malady of terrorism. Further, the bench also held that the words and definition of Section 15 of the UAPA Act must be interpreted in its absolute and strict sense as the crime of terrorism is starkly different from even the worst of conventional crime.
THE JURISDICTION OF “TERRORIST ACTIVITY”-
Referring to a Supreme Court decision in the case of Hitendra Vishnu Thakur, the High Court reiterated that the effect of terrorist activity is far much greater and different as compared to ordinary crimes. Therefore, the anti-terror laws must not be triggered merely because of disturbance in public order or events.
EVERY CRIMINAL CANNOT BE LABELLED AS A TERRORIST
The judges elucidated that the intention behind the legislation of anti-terror laws was not to try every criminal under the TADA laws. If the quantum of the crime of the accused does not cross the boundaries of ordinary criminal activities, then the anti-terror laws shall not be set in motion.
TERRORISM NOT TO BE TREATED AS TRIVIAL LAW & ORDER DISTRESS
Relying on the Supreme Court’s observation in PUCL vs Union of India, the court stated that terrorism directly attacks the sovereignty and integrity of a country. It leads a country towards anarchy and instils terror in the heart of order citizens. Hence, keeping in mind the radical characteristics of terrorist activities, it cannot be given the colour of ordinary criminal activity. Moreover, the reach of terrorism extends beyond the borders of countries and created international panic.
THE USUAL OFFENCES UNDER IPC CANNOT BE IDENTIFIED AS “TERRORIST ACT”-
The High Court while criticizing the vague parameters of Section 15 of the UAPA Act stated that the anti-terror laws cannot be commonly applied on the cases which fall under the ambit of general laws of IPC.
Please read concluding on thedailyguardian.com
Laws having serious penal effects shall be applied with caution-
The High Court observed that if the laws which might have a serious penal effect on a person shall be applied with caution and vigilance. This shall be done so that the persons whom the legislature does not want to be involved can stay safe.
The provisions under UAPA Act directly impacts the “Defence of India”-
The court opined that the intention of parliament behind the enactment and amendments of UAPA was to widen it so that the terrorist activity can be covered under the scope of UAPA.
The abovementioned principles were the key highlights of the decision of the Delhi High Court which depicts the role of the Indian Judiciary as the watchdog of the rights of the citizen of India.
Conclusion & suggestions
The Supreme Court of India in its recent order stated their opinion of the High Court’s Order granting bail to the Activist. The SC believed that the order shall not be taken as a precedent for the future matter and refused to put stay on their Bail which was granted by the High Court.
In today’s world, the UAP Act has become a huge hindrance for those practising Freedom of speech and Expression Under Article 19(1)(a) of the Constitution of India. Be it any speeches given by the JNU student or Speeches given by the Activist in the Elgar Parishad Case all have come under the offence under the UAP Act. There are many loopholes in the said Act and the SC in its order stated that the matter needs wider attention and therefore the Apex court will decide the contravention of the said Act with the provision do the Constitution shortly. In our opinion, it is concluded that the Act has been used as a tool for creating nuisance and ruckus among the general public and the same requires amendment.