Need For Reforms in Unlawful Activities Prevention Act (UAPA), 1967

Syllabus: GS2/Governance, GS3/Internal Security

Context

• The death anniversary of Professor G.N. Saibaba brings renewed attention to concerns surrounding prolonged pre-trial detention and the protection of civil liberties under the Unlawful Activities (Prevention) Act (UAPA), 1967.

What is Unlawful Activities Prevention Act (UAPA)?

• The UAPA gives powers to the government to probe and prosecute people for acts of terrorism, and to designate an organization as an “unlawful association” or a “terrorist organization”, or an individual as a “terrorist”.
• It was enacted on the recommendation of the National Integration Council, set up in 1961 to find ways to counter problems that were dividing the country.
  • However, in its original form, the Act largely dealt with secessionist activities, with no explicit mention of terrorism.
• Key Provisions: 
  • Sections 38 and 39 criminalise specified association with and support for terrorist organisations, subject to the statutory requirements.
  • Section 35 empowers the Central Government to designate an organisation or an individual as a terrorist, subject to the provisions of the Act.
  • Section 43D(5): The court must deny bail if, after examining the police report or case diary, it finds reasonable grounds to believe that the allegations against the accused are prima facie true (appear to be true at first glance).

Concerns associated with the UAPA Act

• Stringent Bail Provisions: The UAPA restricts a judge from granting bail if, after reviewing police reports, there are “reasonable grounds for believing that the accusation is prima facie true.”
  • This provision introduces elements of criminal trial into the bail stage, which contradicts the principle of presumption of innocence.
• Extended Detention: The UAPA allows prolonged detention without formal charges, extending the period of pre-trial incarceration.
  • This conflicts with Article 21 of the Constitution, which guarantees the right to life and personal liberty.
• Vagueness in Definition: The definition of “unlawful activity” and “terrorist act” under UAPA is broad and ambiguous, leading to potential misuse.
• Freedom of Expression: UAPA has been invoked against activists, journalists, and students, raising concerns about stifling dissent.
  • This could be seen as a violation of Article 19, which guarantees freedom of speech and expression.
• Highly Discretionary: It confers upon the government broad discretionary powers and also authorises the creation of special courts with the ability to use secret witnesses and to hold closed-door hearings. 

Key Judicial Interventions

• National Investigation Agency v. Zahoor Ahmad Shah Watali (2019): The SC held that courts must examine whether the accusations are prima facie true while deciding bail under Section 43D(5) of the UAPA, without conducting a detailed trial at this stage.
• Union of India v. K.A. Najeeb (2021): The SC held that prolonged imprisonment and unreasonable trial delays can justify bail under Article 21, despite the strict bail conditions under Section 43D(5) of the UAPA.
• Thwaha Fasal v. Union of India (2021): Mere association with a terrorist organisation is insufficient for conviction under Sections 38 and 39 unless the intention required by the relevant provision is established.

Way Ahead

• Legal Reforms: Amendment to  the UAPA is needed to ensure clearer definitions of offences and reduce the harsh bail restrictions.
• Judicial Oversight: There is a need to establish mechanisms for periodic judicial review to prevent misuse.
• Safeguard Freedom of Expression: Introduce guidelines to prevent the misuse of the law against dissenting voices.

Concluding remarks

• While the UAPA serves a critical role in safeguarding national security, its stringent provisions raise concerns about civil liberties and due process. 
• A balanced approach through reforms and judicial safeguards is essential to uphold constitutional values while addressing security threats effectively.

Source: TH