Updated: Aug 26, 2020
“Power tends to corrupt and absolute power corrupts absolutely.”
- Lord Acton
In the year 1967, the National Integration Council (‘NIC’), which was headed by the then Prime Minister Indira Gandhi, passed a resolution urging the Indian Parliament to come up with a law to tackle unlawful activities and ban unlawful organisations. On the basis of the resolution, the parliament enacted The Unlawful Activities (Prevention) Act, 1967 (‘UAPA’). Since its inception, the Act has undergone several amendments with an objective to better serve the primary purpose of the Act. The most recent amendment to the anti-terror legislation has opened a floodgate of debates and has attracted strong criticism from human rights advocates across the globe.
Surprisingly, The Unlawful Activities (Prevention) Amendment Act, 2019 (‘Amendment Act’) was passed by the Lok Sabha and Rajya Sabha without holding wide discussions and public consultations. Ultimately, the bill received the assent of the president on August 9, 2019. The author through this article assesses the constitutional validity of the Unlawful Activities (Prevention) Act, 2019 and suggests a way forward.
Vesting Unprecedented Authority with the State: Letting go of the ‘Rule of Law’
While the bill sailed through the parliamentary stages, the Union Government held its ground and defended the amendment bill by continuously remarking that the only purpose behind the bill was to curb terrorism by making provisions under the UAPA Act more stringent. On the other hand, the Act has been labelled by human rights activists as a draconian law. The Amendment Act is being seen as a tool of oppression as it vests unbridled powers with the State thereby raising reasonable apprehensions for the misuse of the law. Instead of rectifying the loopholes in the existing legislation, the Amendment Act has given rise to more uncertainties than ever.
It is important to note that the current Act empowers the government to designate any organisation as a ‘terrorist organisation’ on a mere belief that a particular organisation is or has become unlawful. The government, by virtue of Section 35 of the Act, has a free hand to designate any organisation as a ‘terrorist organisation’ without any well-defined parameters to adjudge the same. If an organisation has been notified as a terrorist organisation, the first recourse available to it is to approach the Central Government, the very entity that apprehended it to be engaged in terrorist activities and hence banned it. If the organisation fails to get respite, then an appeal can be made to the Review Committee appointed by the same Central Government. Most importantly, the Review Committee is neither bound by any time period within which it must pronounce its verdict nor is it bound to disclose the rationale behind its decision.
Previously, only an organisation could have been declared as a terrorist organisation. However, in an unprecedented development proposed by the Act, now even an individual can be declared as a terrorist by the Central Government on a mere belief that he is committing, preparing, promoting, or is otherwise engaged in a terrorist act under Section 35 and Section 36 of the UAPA. In a gross violation of the principles of natural justice, the individual so designated is not given an opportunity to give clarifications. Moreover, this provision stands in contradiction to the basic principle of ‘innocent until proven guilty’ thereby violating the core values of the International Covenant on Civil and Political Rights (‘ICCPR’).
The previous version of the UAPA required the investigating officer to take permission from the director-general of police of a state before conducting raids and seizure of properties that are suspected to be linked to terrorist activities. However, the Amendment Act removes the requirement of permission if the raid is being conducted by an officer of the National Investigation Agency (‘NIA’). This provision results in a stark violation of the principle of federalism.
Under the UAPA, the term ‘membership’ is so vague that even if one participates in the meetings of a ‘banned organisation’, he/she can be termed as a member of the unlawful association under Section 10 of the Act. This provision goes against the Apex Court’s ruling in Indra Das v. State of Assam,[i] wherein it propounded that if an individual is merely a member of an unlawful or banned terrorist organisation, it would not be sufficient ground to make him guilty under the said Act.
To everyone’s utter surprise, the legislation which aims to curb the terrorist and unlawful activities fails to keep track with the original definition of terrorism as defined under Section 15 of the UAPA as the UAPA Amendment Act vests wide power in the hands of the government to declare not only an organisation but also any individual which it believes to be involved in terrorist activities. This loophole has not only paved the way for its vague interpretation but has also made the anti-terror law vulnerable to gross misuse. The UAPA Amendment Act, 2019 pushes back the nation to emergency days. The actions of people protesting in favour of the underprivileged sections of the society and advocates of human rights can also be declared as an ‘unlawful activity’ and as such, they can be arrested.
Judiciary and the Constitutional Validity of the Unlawful Activities (Prevention) Amendment Act, 2019
A petitioner, namely, Sajal Awasthi filed a Public Interest Litigation challenging the constitutional validity of the UAPA Amendment Act. The petitioner vehemently contended that the said Amendment Act is ultra vires of the fundamental rights guaranteed under PART III of the Indian Constitution. The petitioner put forth that the amendment puts an embargo on the right to dissent in the name of curtailing terrorist activities, thereby curtailing an individual’s freedom of speech and expression under Article 19. The said Act curtails the right to equality as enshrined under Article 14 by granting unbridled powers to the State to notify any individual as per its discretion as a ‘terrorist’ without having any reasonable mechanism to determine the same. The PIL further states that the Act impinges upon an individual’s right to reputation which is an integral part of right to life under Article 21. The procedure provided by the Amendment Act labels a person as a terrorist without following a proper judicial process, which completely derogates the procedure established by law.
Another petition lodged by the NGO ‘Association for Protection of Civil Rights’ challenged the constitutionality of Section 35 and Section 36 of the UAPA Amendment Act which empowers the State to designate any individual as a terrorist without adhering to a due procedure established by law. When on the mere belief of the government an individual would be notified as a terrorist under Schedule IV of the Act, it would not only attach a lifelong stigma but would result in his civil death. A person when labelled as a ‘terrorist’ faces several issues such as social boycott, expulsion from the job, hounding by the media, among other mental trauma. The petitioner, therefore, contended that the Amendment Act goes very far and as such violates Article 21.
Furthermore, depriving the designated individual of his basic right of being heard was against the very facet of the right to life with dignity. Krishna Iyer J. has observed in the case of Kharak Singh v. State of Uttar Pradesh that Article 21 does not denote mere animal existence but includes the right to life with dignity. (At present, the above-mentioned petitions are being heard by the Apex Court in the case of Sajal Awasthi v. Union of India.[ii] )
The most recent instance of the misuse of the UAPA made headlines when Safoora Zargar and Umar Khalid were arrested under the provisions of the Act for allegedly inciting communal riots over the Citizenship (Amendment) Act, 2019 through a premeditated conspiracy.