The Unlawful Activities (Prevention) Act: An Overview

A committee on National Integration and Regionalization was established by the National Integration Council to study the question of reasonable restraints in the interest of India's sovereignty and integrity. In order to place such restrictions on the freedom of speech and expression, the right to peaceful assembly without the use of force, and the right to form associations, the 16th Amendment to the Constitution (1963) was made. As a result, on December 30th, 1967, the Unlawful Activities (Prevention) Act was passed. This article makes an overview of the said legislation.

What does Unlawful Activities Prevention Act Define?

The UAPA was initially passed in 1967 by the then-Congress government led by former Prime Minister Indira Gandhi. It is an enhancement of the TADA (Terrorist and Disruptive Activities (Prevention) Act), which was dismantled in 1995 and the Prevention of Terrorism Act (POTA), which was repealed in 2004. The Act, among other things, specifies unique procedures for dealing with terrorist acts. It tries to effectively deter organisations engaged in unlawful activities in India.

The death sentence and life in prison are the two harshest penalties under UAPA. According to the Act, the central government has unrestricted authority, therefore if it finds an activity to be unlawful, it may declare it as such in the official gazette.

Application of the Act

The Act applies to persons found guilty of an act or omission in India.

The Act also applies outside India −

• Citizens of India (even if living outside India)

• People in government service outside India.

• People on ships or aircraft registered in India.

What is an Unlawful Activity?

Section 2(o) of the Act defines "unlawful activity" as any action made by an individual or organisation by committing an act, or by words or otherwise, which is −

• Intended to or supports any claim to bring about the cession of Indian territory.

• Intended to disrupt the sovereignty and integrity of India.

• Intended to cause disaffection against India.

Section 13 provides punishment for unlawful activity and assistance in it. It provides for imprisonment of up to seven years and a fine.

What is an Unlawful Association?

Section 2(p) of the Act defines the term as any association:

• With the goal of any illegal activity, or which encourages or assists people to participate in it, or whose members engage in it.

• Which has the goal of committing any offence punishable under Section 153A or 153B of the Indian Penal Code.

In addition to this −

• Sections 3 to 9 of the Act deal with provisions relating to unlawful associations.

• Section 3, it empowers the Central Government to declare any association as an unlawful association by notification in the Official Gazette in the public interest.

• Sections 4 and 5 empower the Central Government to establish an Unlawful Activities (Prevention) Tribunal for the purpose of conducting inquiries under the Act. The Tribunal will have the same powers as a civil court and proceedings before it will be considered judicial proceedings.

• Under Section 7, the Central Government has the power to curb funds that are used by an unlawful association for its activities and maintenance.

• Section 8 gives power to the Central Government to notify places used for the purpose of an unlawful association.

• Sections 10–12 punish the following offences relating to unlawful associations −

• Membership of an unlawful association

• Dealing with funds of an unlawful association

• Contravention of an order relating to a notified place

What is a Terrorist Act?

Section 2(k) of the Act defines a terrorist act as defined under Section 15. A terrorist act is an act by which a person uses criminal force to detain, kidnap, or abduct any person with the intent to threaten the unity and sovereignty of India; or with the intent of striking terror in India or any foreign country, uses bombs or dynamites or other explosives or weapons to detain, kidnap, or abduct any person and threatens to kill or injure such person. Section 15 mentions other acts which are designated as terrorist acts. The Central Government may designate any organisation or individual as a terrorist and add them to Schedule I by notification in the Official Gazette.

Section 16 of the Act provides punishment for terrorist acts −

• When death is caused, the sentence is either death or life imprisonment with a fine.

• In some other cases, imprisonment may be of five years to life imprisonment and a fine may be imposed.

Section 17 provides punishment for raising funds for terrorist acts. Section 18 punishes conspiracy for terrorist acts. Similarly, Sections 18A to 23 punish other offences related to terrorist acts.

Sections 24 to 34 relate to provisions for forfeiture of proceeds of terrorism or any property intended to be used for terrorism.

Sections 35 to 40 relate to terrorist organisations. These provisions also give the Central Government the authority to form a Review Committee for individuals involved in these organizations. Sections 37–40 punish offences relating to terrorist organisations.

Right to Bail

A reading of Section 43D makes it clear that the bail provisions under the Act are distinct from other laws. While deciding on bail, the court must record its opinion that there are grounds to believe that the accusations are prima facie true. Moreover, pre-chargesheet custody may be extended by up to 180 days. Thus, the concept of default bail also applies much later in the proceedings.

But recently, the Supreme Court ruled that UAPA per se does not oust the power of the High Court and Supreme Court to grant bail on the ground of violation of the right to speedy trial.

Provision of Tribunal under UAPA

When a notification proclaims a particular association to be unlawful, the Central Government is required to send the notification to the Tribunal within 30 days to assess whether there is enough evidence to support the declaration of its illegality.

If and when necessary, the Central Government has the power to appoint the "Unlawful Activities (Prevention) Tribunal”.

Conclusion

A typical example of a conundrum is where to draw the line between individual freedom and the state's duty to guarantee security. India needs a robust anti-terrorism law, but its implementation would inevitably lead to certain severe anomalies, like the detention of activists. There are effective provisions in the current UAPA to combat terrorism (cognizable offence), but there are also flaws and shortcomings that must be adequately fixed in order to make the law effective and efficient to prevent and combat terrorism. Thus, the state, courts, and civil society are responsible for finding a balance between constitutional freedom and the necessity of counterterrorism efforts.

Frequently Asked Questions

Q1. What are the limitations of the Act?

Ans: Some limitations of the Act are −

• The Act has very stringent bail provisions. It extends the maximum custody from 90 days to 180 days. Thus, it increases the chances of police torture.

• It has a very low conviction rate, but investigations are taken up against people in order to pester them.

• A person is automatically assumed to be guilty if weapons are recovered from him. This overturns the presumption of innocence usually followed in criminal cases.

• The Act gives a different definition of terrorist acts, which may even include non-violent political protests.

Q2. How many amendments have been made to UAPA till now?

Ans: The UAPA has been amended in 1969, 2004, 2008, 2012, and 2019.

The 2004 amendment was significant because it made UAPA a terror law after the repeal of the Prevention of Terrorism Act in 2004.

Another important amendment was made to the Act in 2019. Through this amendment, it was decided to consider not only groups as terrorists but also certain individuals as terrorists.

Q3. What is a terrorist organization?

Ans: An organisation may be designated as a terrorist organization if it −

• commits or participates in acts of terrorism, or

• prepares for terrorism, or

• promotes or encourages terrorism, or

• is otherwise involved in terrorism.

Q4. What are some terrorist organizations listed under Schedule 1 of the Act?

Ans: Central Government has the power to designate an organization to be a terrorist organization by putting it under Schedule 1 of the Act. Some organizations are listed below −

• Khalistan Zindabad Force

• International Sikh Youth Federation

• Lashkar-E-Taiba/Pasban-E-Ahle Hadis

• Jaish-E-Mohammed/Tahrik-E-Furqan

• Al-Umar-Mujahideen

• Jammu and Kashmir Islamic Front

• United Liberation Front of Assam (ULFA)

• People’s Liberation Army (PLA)

• United National Liberation Front (UNLF)

• National Liberation Front of Tripura

• Students Islamic Movement of India

• Communist Party of India (Marxist-Leninist)