Published by: Akshay Verma
College: Bhai Gurdas College of Law, Sangrur, Punjab.
Introduction:
The Unlawful Activities Prevention Act, 1967 (UAPA) was enacted to provide for the more
efficient restriction of various unlawful activities of persons and associations. The Act
consists of 7 Chapters and Three Schedules. It was enacted with the desire to combat
terrorism and to ensure national security. However, in the recent times, the Act has been the
subject of massive debate and scrutiny. The way this Act has been implemented and the
consequences arising out of such implementation have ignited concerns about the
deterioration of civil liberties and muzzling of dissent. With the growing concerns over the
UAPA, it becomes essential to unravel the fallacies.
Anomalies with the Unlawful Activities Prevention Act, 1967 in its present form:
The UAPA in its present form have various anomalies that have weakened the purpose
behind its enactment. Rather than combating terrorism, the Act has instead invoked fear in
the democratic voices where simply dissenting with the government’s stance is viewed as a
threat to national security. Even the judiciary is facing helplessness to a large extent in
dealing with UAPA cases. The Apex Court has been unable to provide sufficient protection
against arbitrary arrest, long pre-trial detentions, and malicious prosecutions. It is pertinent to
mention here that without adequate amendments, the efficient implementation and
achievement of intended results of such Act is being severely restricted.
The Act also allows for a blind reliance on cases registered by the police. As per the PUCL
report in Year 2022, between the year 2015 to 2020, less than three (3) percent of arrests
made under the UAPA led to convictions. Only 1,080 of the 4,690 individuals arrested under
the Unlawful Activities Prevention Act, 1967 between the year 2018 and 2020 received bail.
Unlike POTA and TADA, no decision or judgment on the constitutionality of the Unlawful
Activities Prevention Act, 1967 has been given by the Apex Court and hence, the repeated
abuse of this Act has become a cause of concern for our democracy.
Our Indian Constitution promotes the value of “bail is a rule and jail is an exception”,
however, in UAPA it seems that the lawmakers have totally discarded this value. Section 43D
(5) allows for the long-term incarceration of those persons accused of violating the law
without bail.
Prolonged incarcerations and wrongful arrests can cause a huge financial loss such a loss of
job, loss to business and to goodwill. It can also cause severe mental agony to the persons
who suffers wrongful detentions and prolonged incarcerations.
Prolonged incarcerations and wrongful detentions also put a huge burden on taxpayers’
money as the State is under obligation to provide access to food, healthcare, clothing, and
other requirements.
Case laws:
In Mohammad Arif vs. State of Maharashtra, (2015) 9 SCC 267, the Bombay High Court
has observed that the provision of the Unlawful Activities Prevention Act, 1967 that shifts the
burden of proof to the person who is accused of committing an offence under the Act is
violative of the Constitution and is against the principles of criminal law.
However, in NIA vs. Zahoor Ahmad Shah Watali (2020) 4 SCC 571, the Court has almost
made impossible the grant of bail. It has held that it is not allowed for courts to even indulge
in a detailed analysis of the case of prosecution while considering the bail under the Unlawful
Activities Prevention Act, 1967 and to figure out whether the evidence produced by the
prosecution is even enough or not.
Solution/Way ahead:
UAPA in its present state needs some effective amendments to make it more justice driven
and purposeful.
- Removal of vagueness from the definitions: As provided in Arup Bhuyan v. State of
Assam, (2011) 3 SCC 377, the Court stressed the requirement to differentiate
between a person’s membership in a banned organization and their indulgence in
terrorist activities to prohibit the misuse of the Unlawful Activities Prevention Act, - In Kedar Nath Singh v. State of Bihar, (1962) 1 SCR 423, the Apex Court
held that the definition of ‘sedition’ provided in the IPC,1860 must be narrowly
construed to prevent violation of right to free speech. This principle can be adopted in
interpreting the definition of “terrorist activity” in the Unlawful Activities Prevention
Act, 1967 to ensure that it does not violate due process, fundamental justice, personal
liberty. - The Government may amend the provisions of the Act to ensure fair trial of the
accused persons. An amendment in Section 43 D (5) could be made to provide for
presumption of innocence until proven guilty. This would ensure that the prosecution
is obligated to establish the guilt of the accused person. - Compensation framework: it is important for legal systems to provide for adequate
compensation to persons who suffer from wrongful arrests and detentions. Hence,
there must a adequate compensation framework so that victims of the draconian law
can be adequately compensated.