March 23, 2021

CRITICAL ANALYSIS OF THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967

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Author: Riya Sharma, Student at University Institute of Legal Studies, Panjab University, Chandigarh

INTRODUCTION

National security is of paramount importance to the government. It is an imperative duty of the state to sustain peace, security and public order. In order to actualize this responsibility, certain security laws may be ratified. The Unlawful Activities (Prevention) Act, 1967 or the UAPA is one such anti-terror legislation enacted in India. The core motive of this Act is to outlaw and reprimand the unlawful and terrorist activities.

HISTORICAL BACKGROUND

The Indian Government through the First Constitutional Amendment Act, 1951, incorporated the term ‘reasonable’ before restrictions and ‘public order’ being ground for condensing the fundamental rights. Throughout the Sino-India War, 1962, there were protests in Tamil Nadu against the Hindi language and the DMK (Dravida Munnetra Kazhagam) party publicly proclaimed to form a distinct nation, in case they derive power. Altogether, these factors lead to the passage of the Unlawful Activities (Prevention) Act, 1967.

PASSAGE OF THE ACT

In 1963, with the chief motive to sustain India’s sovereignty and integrity, the Sixteenth Constitutional Amendment Act was enacted. It sanctioned the Legislature to impose reasonable restrictions.
The President’s assent was received in the year 1967, after the Bill was approved by both the Houses of the Parliament of India.
After the implementation of the Unlawful Activities (Prevention) Act, 1967, the Central Government can assert any association as ‘unlawful’ and administer a prohibition on that organization in India. Such prohibition shall be subject to the judicial review.
The Act has been amended in 1969, 1972,1986, 2004, 2008, 2012 and every such amendment made the legislative provisions more hard-hitting and sterner. An Amendment Bill was also introduced in the year 2019. The following major changes were introduced in the Amendment of:
2004: Prevention of Terrorist Activities Act (POTA) was repealed owing to its radical provisions and sought amendments in the UAPA. The 2004 Amendment presented the concept of ‘Terrorist Gang’ in the Act.
2008: Police custody up to six months against any terrorist group and to file charge sheet after the duration of six months.
2012: The incorporation of the provision that terrorist activities entail offences threatening the country’s ‘economic security’ was in consonance with the FATF (Financial Action Task Force) endorsements to safeguard a synchronized universal response to avert organized crimes, corruption and terrorism.
2019 Amendment Bill: The following changes have been presented-
Designation of ‘individuals’ as terrorists,
Permits the Director-General of National Investigation Agency to sanction the seizure or attachment of property.
Authorizes the officers of the National Investigation Agency, of the rank of inspector or above to investigate cases.

STATUTORY PROVISIONS OF THE UAPA, 1967

The Unlawful Activities (Prevention) Act, 1967 comprises of 7 Chapters, 53 Sections and 3 Schedules.

The scope and extent of the Act has been discussed under Section 1 of the Act.
Section 2 contains the definitions. Some important terms defined under this section are unlawful activity, unlawful association, terrorist act, terrorist gang, terrorist organization, economic security, cession and secession.
Chapter II of the Act covers Unlawful Associations. (Sections 3-9)
The provisions relating to offences and penalties are incorporated under Chapter III of the UAPA. (Sections 10-14)
Chapter IV deals with the Punishment for Terrorist Activities. (Sections 15-23)
Chapter V includes the provisions regarding Forfeiture of Proceeds and property to be used in terrorism. (Sections 24-34)
Terrorist Organizations have been discussed in Chapter VI of the Act. (Sections 35-40)
Chapter VII incorporates the miscellaneous provisions. (Sections 41-53)

WHAT CONSTITUTES A CRIME UNDER THIS ACT?

For the purpose of categorizing as to what would constitute a crime under the UAPA, some of the following propositions may be relied upon:

The custody of literature of unlawful organization.
Ownership of a philosophy or dogma, lacking any violent act.
Affiliation with such an organization.
Presence at their consultations or meetings.

CHARACTERISTICS OF THE ACT

Imperfect and not an exhaustive definition of terrorist.
Search, seizure and arrest without warrant.
No scope for Anticipatory bail.
Detention without charge sheet for up to 180 days.
Creation of Special courts, with closed door hearings and use of secret witnesses.
No sunset clause in the Act.

CONDEMNATION AND APPREHENSIONS

This legislation of 1967 has attracted a lot of criticism owing to the arbitrary nature of its provisions. Some provisions of this Act are unswervingly in contravention of the fundamental rights guaranteed under the Constitution of India as it encroaches upon the Articles 19 and 21. Section 35 of the Unlawful Activities (Prevention) Act, 1967 is inconsistent with the Principles of Natural Justice because it is divergent from the presumption of innocence until proven guilty. In addition to this, it snatches away the opportunity of right to fair trial and the right to be heard. The International Covenant on Civil and Political Rights is desecrated due the implementation of the amended section which identifies the presumption of innocence as a universal human right. The public fear misappropriation and exploitation of the Act as it has been witnessed in former times under the POTA and TADA.

RELEVANT JUDGMENTS

Sajal Awasthi V. Union of India[1]
Sri Indra Das V. State of Assam[2]
State of Maharashtra V. Bharat Shanti Lal Shah and others[3]
Association for Protection of Civil Rights V. Union of India
Nia V. Zahoor Ahmad Shah Watali[4]
Safoora Zargar v. State[5]

CONCLUSION

The Unlawful Activities (Prevention) Act, 1967 plays a vital role in safeguarding the national security. The principal motive of the Act is to control the growing risk of terrorism and the requirement to avert the exploitation and damage to the rights of the Indian citizens. The legislative intent of the UAPA, along with its several amendments, ought to be interpreted or construed harmoniously. Recurrent judicial intrusion must be ensured for the effective implementation of the Act, in such a manner that is does not restrain the civil, political and legal rights of the people. In relation to the security laws of India, an equilibrium should be attained to gratify the welfare of the accused and that of the nation and civilization at large.

[1] WP (C) 1076/2019

[2] AIR 2007 SC 1383

[3] (2008) 13 SCC 5

[4] (2019) 5 SCC (Cri) 383, 02—04-2019

[5] 2020 SCC 0nline Del 664, 23-06-2020