1. The Unlawful Activities (Prevention) Amendment Act, 1969 (24 of 1969).
2. The Criminal Law (Amendment) Act, 1972 (31 of 1972). 3. The Delegated Legislation Provisions (Amendment) Act, 1986 (4 of 1986). 4. The Unlawful Activities (Prevention) Amendment Act, 2004 (29 of 2004). 5. The Unlawful Activities (Prevention) Amendment Act, 2008 (35 of 2008).
6. The Unlawful Activities (Prevention) Amendment Act, 2019 (28 of 2019).
The Unlawful Activities (Prevention) Act is an Indian law aimed at the prevention of unlawful activities associations in India. Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.[1] The most recent amendment of the law, the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA 2019) has made it possible for the Union Government to designate individuals as terrorists without following any formal judicial process.[2][3] UAPA is also known as the "Anti-terror law".
The National Integration Council appointed a Committee on National Integration and Regionalisation to look into the aspect of putting reasonable restrictions in the interests of the sovereignty and integrity of India. The agenda of the NIC limited itself to communalism, casteism and regionalism and not terrorism.[4] Pursuant to the acceptance of recommendations of the committee, the Constitution (Sixteenth Amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India. In 2019, the BJP led NDA government claimed that in order to implement the provisions of 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the Parliament.[5]
Pursuant to the acceptance by Government of a unanimous recommendation of the Committee on National Integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law, reasonable restrictions in the interests of sovereignty and integrity of India, on the:
Freedom of Speech and Expression;
Right to Assemble peaceably and without arms; and
Right to Form Associations or Unions.
The object of this bill was to make powers available for dealing with activities directed against the integrity and sovereignty of India. The bill was passed by both the Houses of Parliament and received the assent of the President on 30 December 1967. The Amending Acts are as follows:
The Unlawful Activities (Prevention) Amendment Act, 1969[7]
The Criminal Law (Amendment) Act, 1972
The Delegated Legislation Provisions (Amendment) Act, 1986
The Unlawful Activities (Prevention) Amendment Act, 2004
The Unlawful Activities (Prevention) Amendment Act, 2008
The Unlawful Activities (Prevention) Amendment Act, 2012[8]
The Unlawful Activities (Prevention) Amendment Act, 2019[9]
This last Amendment was enacted after POTA was withdrawn by the Parliament. However, in the Amendment Act in 2004, most of provisions of POTA were re-incorporated. In 2008, after Mumbai attacks, it was further strengthened. The most recent amendment has been done in 2019. According to the statement of objects and reasons, the Bill amends the Unlawful Activities (Prevention) Act, 1967 to make it more effective in preventing unlawful activities, and meet commitments made at the Financial Action Task Force (an intergovernmental organization to combat money laundering and terrorism financing).[10] In July 2019, the ambit of UAPA was expanded. It was amended allowing the government to designate an individual as a terrorist without trial. The previous versions of the Bill allowed for only groups to be designated as terrorists.[11]
In a ruling passed on 1 February 2021, the Supreme Court of India ruled that bail could be granted to accused if the right to speedy trial was violated.[12] In another significant judgement in 2023, the Supreme Court ruled that "membership of an unlawful organisation" constituted an offence under UAPA.[13]
The Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in Lok Sabha by the Minister of Home Affairs, Amit Shah, on 8 July 2019. The Bill amends the Unlawful Activities (Prevention) Act, 1967. The Act provides special procedures to deal with terrorist activities, among other things. The act was passed in the Lok Sabha on 24 July and Rajya Sabha on 2 August. It received the assent of the president on 8 August.[14]
Who may commit terrorism: Under the Act, the central government may designate an organisation as a terrorist organisation if it:
(i) commits or participates in acts of terrorism,
(ii) prepares for terrorism,
(iii) promotes terrorism, or
(iv) is otherwise involved in terrorism.
The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.
Approval for seizure of property by NIA: Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police to seize properties that may be connected with terrorism. The Bill adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA would be required for seizure of such property.
Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.
Insertion to schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). The Bill also adds another treaty to the list. This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).[14]
Mechanism
For prosecution under Section 13 of the UAPA, the permission of the Ministry of Home Affairs (MHA) is required. However, for prosecution under Sections 16, 17 and 18, the permission of the respective State government is required.[15] Section 25 allows the NIA to seize property it considers to be proceeds of terrorism, with the written consent of the Director General of Police (DGP) of the State. However, it is possible for the NIA officer to obtain the consent of the DGP of the NIA thus bypassing the State DGP.[16] The police normally have 60 to 90 days to investigate a case and submit a charge-sheet failing which the accused may obtain default bail. However, under the UAPA, this pre-charge sheet time is extended to 180 days. Further, normal bail rules do not apply to an accused under Section43(d)5 of the UAPA.[17][18]
Criticism
UAPA is criticized for its low conviction rate, which is around 2%. According to the data shared by the Union Government, in the period 2016 to 2020, 5,027 cases were registered under the act against 24,134 individuals. Only 212 of the 24,134 people were convicted and 386 were acquitted. This means, in the years 2016-2020, 97.5% of the people arrested under UAPA remain under prison awaiting trial.[19]
In July 2019 while introducing the Unlawful Activities (Prevention) Amendment Bill, 2019 the BJP led Union Government claimed that the bill would give it power to probe terror attacks on India, the Opposition parties in the Lok Sabha termed it draconian. The Opposition claimed that the Bill did not contain any provisions to prevent misuse. Specifically, the power to designate an individual as a terrorist before being proven guilty by trial, was criticised.[11][20] Critics of the UAPA consider the definitions of "terrorist", "like to threaten" and "likely to strike terror" to be very broad and open to misuse by the police as the burden of proof of innocence is on the accused.[17] The example of Gaur Chakraborty among others is cited wherein he spent 7 years in prison during trial only to be acquitted of all charges, wherein the imprisonment during trial itself amounted to punishment.[21]
Lawyer Rongeet Poddar wrote in the Oxford Human Rights Hub, that UAPA 2019 has made it possible for the Union Government to designate individuals as terrorists without a due process of law. He wrote, "Neither the Amendment Bill nor the parent statute provides a concrete definition of terrorism. This opens a Pandora's box. Categorization as a 'terrorist' by the executive bears serious consequences, such as social boycott or loss of employment." Such labeling by the executive could lead to mob lynching by the vigilante groups in India. Calling it a "colourable legislation which bears the potential for abuse by the executive", he noted that the constitutionality of the act should be contested. He wrote, the UAPA 2019 "echoes laws made under the colonial regime to crush the freedom movement in the garb of ensuring public order."[22]
As part of the K. G. Kannabiran Lectures on Law, Justice and Human Rights, Senior Advocate Mihir Desai in a lecture titled, "The Problem Of Preventive Detention in India", delivered on 23 November 2020, stated
"Preventive detention laws and special legislations like UAPA -- anti-terror laws as they are called -- allow the state to carve out exception for its own lawlessness. These are the laws which permit the state to claim that we are governed by the rule of law and on the other hand pass such legislations which violate the rule of law altogether. These are the laws which go against the basic tenets of the constitution, such as freedom, equality, right to life, liberty etc. It therefore becomes important to look at these laws which gives an exceptional power to the state over citizens -- to arrest them, to detain them, to charge them with offences which otherwise they may not be able to charge them with, keep them behind bars for years together, and also for ensuring that dissent in all forms is crushed."[23]
On 25 July 2021, Justice Aftab Alam, former Supreme Court judge spoke on a webinar titled "Discussion On Democracy, Dissent and Draconian Law – Should UAPA & Sedition Have A Place In Our Statute Books?". In the discussion, he called UAPA a "draconian law" and said that it was the UAPA that caused the death of Father Stan Swamy without a trial. Stan Swamy was an activist that was charged with UAPA for his alleged role in the 2018 Bhima Koregaon violence and links to the Communist Party of India (Maoist) and later died in prison due to COVID-19.[24] Alam further stated that UAPA has a realistic conviction rate of 2%. He further stated that this law can lead to situations where case may fail but the accused would have been incarcerated for 8 to 12 years. He said in such cases, the case may have no legs to stand on but the accused has suffered and he concluded that in such cases the process becomes the punishment.[25]
In June 2021, Delhi High Court called out UAPA misuse by the Union government by observing the state had broadened the scope of "terrorist activity" to include ordinary penal offences.[26][27]
While the misuse of the law has been constantly debated, Police was also criticized for not invoking UAPA in some cases like the Haridwar hate speech case.[28][29]
On 20 January 2022, BBC called the UAPA a draconian anti-terror law and reported that many protestors and journalists were arrested, detained or charged with UAPA. UAPA had made it harder for the accused to get bail. PM Narendra Modi led BJP Union Government has been accused of misusing UAPA to stifle dissent and target minorities in India.[30][31]
Notable individuals charged under the Act
Between 2014 and 2020, 10,552 people were arrested under UAPA.[31]
Notable individuals charged under the act and their current status
The Students' Islamic Movement of India is a banned terrorist organisation that was formed in Aligarh, Uttar Pradesh in April 1977. The stated mission of SIMI is the "liberation of India" by converting it to an Islamic land, or Dār al-'Islām. The SIMI, an organisation of extremists has declared Jihad against India, the aim of which is to establish Dār al-'Islām by converting everyone to Islam.
The Prevention of Terrorism Act, 2002 (POTA) was an Act passed by the Parliament of India in 2002, with the objective of strengthening anti-terrorism operations. The Act was enacted due to several terrorist attacks that were being carried out in India and especially in response to the attack on the Parliament. The Act replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (TADA) (1985–1995), and was supported by the governing National Democratic Alliance. The Act was repealed in 2004 by the United Progressive Alliance coalition.
Anti-terrorism legislation are laws aimed at fighting terrorism. They usually, if not always, follow specific bombings or assassinations. Anti-terrorism legislation usually includes specific amendments allowing the state to bypass its own legislation when fighting terrorism-related crimes, under alleged grounds of necessity.
Popular Front of India (PFI) is an Islamic political organisation in India, that engages in a radical and exclusivist style of Muslim minority politics. Formed to counter Hindutva groups, it was banned by the Indian Ministry of Home Affairs under Unlawful Activities (Prevention) Act (UAPA) on 28 September 2022 for a period of five years.
The International Sikh Youth Federation (ISYF) is a proscribed organisation that aims to establish an independent homeland for the Sikhs called Khalistan. It is banned as a terrorist organisation under Australian, Japanese, Indian, Canadian and American counter-terrorism legislation. The Government of India has declared it a terrorist organisation. While banned, the organization continues to receive financial support from many Sikh people based in Canada, the United States, and the United Kingdom.
2008 Bangalore serial blasts occurred on 25 July 2008 in Bangalore, India. A series of nine bombs exploded in which 1 person was killed and 20 injured. According to the Bangalore City Police, the blasts were caused by low-intensity crude bombs triggered by timers.
The National Investigation Agency (NIA) is a specialised counter-terrorism law enforcement agency in India. The agency is empowered to deal with the investigation of terror related crimes across states without special permission from the states under written proclamation from the Ministry of Home Affairs. The primary mandate of the National Investigation Agency is to investigate and prosecute offences that have national and cross-border implications, specifically focusing on terrorism, insurgency, and other related matters. It is empowered to investigate cases that involve threats to the sovereignty, security, and integrity of India. It has the authority to conduct searches, make seizures and arrests, as well as to collect evidence and maintain a database of terrorist organisations and their members.
The Maharashtra Control of Organised Crime Act, 1999 is a law enacted by the state of Maharashtra in India in 1999 to combat organised crime and terrorism. Known as "MCOCA", the Act provides the State Government with special powers to tackle these issues, including powers of surveillance, relaxed evidentiary standards and procedural safeguards, and prescribing additional criminal penalties, including the death penalty. The law was introduced by a coalition government of the Bharatiya Janata Party and Shiv Sena.
Farooq Ahmed Dar known by his nom de guerre Bitta Karate, is a Kashmiri terrorist, who currently serves as the chairman of the Jammu Kashmir Liberation Front (R) in the Kashmir Valley of Jammu and Kashmir, India.
Umar Khalid is an Indian student activist, a former research scholar at Jawaharlal Nehru University (JNU), former leader of Democratic Students' Union (DSU) in JNU. He was allegedly involved in the JNU sedition row and is an accused under the UAPA law for Delhi riots. Khalid is also associated with United Against Hate, a campaign founded along with Nadeem Khan in July 2017 in response to the series of lynchings.
Rona Wilson is an activist, researcher and the public relations secretary of the Committee for Release of Political Prisoners (CRPP). He has worked with people accused in terrorism cases, including those booked under the Unlawful Activities (Prevention) Act (UAPA). He is an accused in the 2018 Bhima Koregaon violence.
Sharjeel Imam is an Indian student activist from Kako village of Jehanabad, Bihar. He had completed his B.Tech. and M.Tech. from IIT-Bombay and joined Jawaharlal Nehru University in 2013 for completing his master's degree in Modern History and in 2015 he started Ph.D. from the same university. He is known for his allegedly inflammatory speeches made during anti-Citizenship Amendment Act (CAA) protests which led to his arrest under sedition.
Meeran Haider is an Indian activist leader and human rights defender known for his role in Citizenship Amendment Act protests. He is also the RJD State President of Delhi youth wing unit.
Stanislaus Lourduswamy, SJ, popularly known as Stan Swamy, was an Indian Catholic priest, a member of the Jesuit order, and a tribal rights activist for several decades. Swamy was the oldest person to be accused of terrorism in India.
Gokarakonda Naga "G. N." Saibaba is an Indian scholar, writer, human rights activist, and former assistant professor.
Ishrat Jahan is an Indian practising advocate and former municipal councillor for the Indian National Congress in Delhi who is an accused under the Unlawful Activities (Prevention) Act and was granted bail on 14 March 2022 after her incarceration since February 2020.
Fahad Shah is an Indian journalist from Srinagar, Jammu and Kashmir. He is the founder and editor of the news magazine The Kashmir Walla. He was a recipient of a Human Rights Press Award in 2021.
Sidheeq Kappan is an Indian journalist from Kerala who had been imprisoned in October 2020 after being charged under the Unlawful Activities Prevention Act. He was arrested while on his way to Hathras to report on the story of the 19-year-old Dalit woman who died after being allegedly gang-raped by four men.
Khalistan Tiger Force (KTF) is a militant outfit of the Khalistan movement. In February 2023, it was designated as a terrorist organization by the Government of India.
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