Sept. 6, 2024
Controversies Surrounding UAPA
Context:
Recently, the Delhi Lieutenant Governor (LG) approved the prosecution of novelist Arundhati Roy for supposedly making provocative statements at a 2010 event that advocated Kashmiri separatism. This approval was granted under Section 13 of the Unlawful Activities (Prevention) Act, of 1967.
In 2023, the author was charged under several sections of the Indian Penal Code (IPC).
What is the Unlawful Activities (Prevention) Act (UAPA)?
Background:
On 17th June 1966, the President promulgated the Unlawful Activities (Prevention) Ordinance “to provide for the more effective prevention of unlawful activities of individuals and associations”.
Subsequently, the Unlawful Activities (Prevention) Act of 1967 was enacted.
Unlawful activities are defined as actions supporting or inciting the cession or secession of any part of India, or actions questioning or disrespecting its sovereignty and territorial integrity.
Agency: National Investigation Agency (NIA)
Amendments:
• 2004 amendment: “terrorist act" was added to the list of offences.
• 2019 amendment: empowers the government to designate individuals as terrorists.
Major Provision:
The Act gives the central government complete authority to declare any activity as unlawful If the government considers an activity unlawful, it can officially declare it so by publishing a notice in the Official Gazette.
Under the UAPA, the investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.
Both Indian and foreign nationals can be charged.
It has the death penalty and life imprisonment as highest punishments.
Concerns Related to UAPA
• Low Conviction Rate: Only 18% of UAPA cases result in convictions, and the pendency rate in trials is 89%.
• Vague definition of unlawful activities: allows for subjective interpretations, making it vulnerable to potential misuse against specific groups or individuals based on their identity or ideology.
• Limited Judicial Review: The 2019 amendment empowers the government to designate individuals as terrorists without any judicial review, raising concerns about due process of law and the potential for arbitrary designations.
• Detention Rules: Detention for up to 6 months without being charged and before bail can be sought.
• Violation of Fundamental Rights: The law infringes upon free speech, assembly, and association.
• It makes it illegal to express disagreement and protest and can be employed to single out advocates, reporters, students, and marginalised communities who speak out against the authorities.
Way Forward
• Use the Law as the Last Resort and not as a first
• The UAPA law should not be used to suppress legitimate activities
• Using dialogues, negotiation, and reconciliation as means to resolve conflicts and grievances
• Need for Amendment: refine the definition of "unlawful activity" and "terrorist act" to specifically exclude constitutionally protected activities.
• Setting up a non-Biased Review Mechanism: The current system is not sufficient, as the government is not required to justify its decisions or provide evidence, and the review tribunal is often influenced by the government.
• Presumption of Innocence: Section 43D(5) of the act could be amended to explicitly emphasize the presumption of innocence until proven guilty.
• Clearer Grounds for Denial of Bail: The provision could be changed to establish specific and well-defined grounds for denying bail.
Conclusion
In the mentioned issue, it is doubtful whether a mere speech, without a specific call to violence, would be considered "unlawful activity" under the UAPA. The implication is that the mere expression of views or opinions about the status of Kashmir, even if they are controversial or critical, may not necessarily constitute a violation of the UAPA, which is typically intended to address more direct incitements to unlawful action.