Oct 10, 2020 13:51 UTC
Oct 10, 2020 at 13:51 UTC
Overview of UAPA (The Unlawful Activities Prevention Act, 1967)
THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 (the Act for further reference) was brought into force as an anti-terrorism legislation which was enacted to preserve the integrity and sovereignty of India. This Act aims at defining and preventing certain activities deemed to be unlawful or connected to terrorism. It was brought into effect in consequence of various United Nations Security Council resolutions being passed, which am at battling terrorism. This Act applies to the whole of India as well as to Indian citizens residing outside of the territory of India. The act has been amended multiple times to enclose within its ambit changing techniques of terrorism and the latest amendment was through the Unlawful Activities (Prevention) Amendment Act, 2019.
This Act has defined following offences while striving to prevent them from taking place.
- UNLAWFUL ACTIVITY: Section 2(o) specifies that any action taken by any individual or association with the intention to cause cession or secession of the territory of India or to incite others to do the same; or to cause dissatisfaction against India is an unlawful activity.
Unlawful association along the lines of the same would mean any combination or body of individuals with the object of either committing or encouraging and aiding others to commit an unlawful activity.
- TERRORIST ACT: Section 15 specifies that any act which intends to or is likely to threaten the unity, integrity, security economic security, or sovereignty of India or to strike terror in any section of the people by ways of using explosive or lethal substances hazardous to any person, is a terrorist act.
Any other means employed which are of the nature, likely to cause death or injury to any person or destruction of property or damage to monetary stability of India or detention of any person with threat to cause grievous harm to the person in order to compel the concerned government to act in the method sought by the actor are also included in the ambit of a terrorist act.
Terrorist gang is any association other than the terrorist organizations listed in the first schedule of the act which is involved in a terrorist act.
CHAPTER II – UNLAWFUL ASSOOCIATIONS AND CONSTITUTION OF A TRIBUNAL
Section 3 of the Act states that the central government by a notification in the official gazette while enlisting the reasons and grounds behind such declaration can declare any association as an unlawful association. This notification shall not have any effect till a tribunal constituted under Section 5 confirms the declaration made.
According to the Section 4, within 30 days of the declaration of any association as unlawful, the notification has to be referred by the Central Government to the “Unlawful Activities (Prevention) Tribunal for the adjudication of the validity of the notification issued. A right to appear before the tribunal has been given to the declared association. Section 9 provides for inquiry to be conducted by the tribunal for the adjudication of the matter. The order of the tribunal shall be passed within 6 months of the notification’s issuance.
CHAPTER III- OFFENCES AND PENALTIES
The prime objective of the Act was to define and penalize unlawful and terrorist activities. As a result, in the chapter III of the act, various offences and their respective penalties have been specified. These offences along with the penalties to be imposed are enlisted below:-
- Penalty for being member of an unlawful association:-
- If any person is a member of such an association and aids or assists in the operations of such an organization – imprisonment up to two years and fine
- If any person continues to be a member and along with aiding and assisting, in possession of hazardous substances capable of causing grievous hurt,
- If the act causes death – life imprisonment or death and fine
- Any other case- imprisonment from 5 years to life imprisonment and fine.
- Penalty for dealing with funds of an unlawful association: – imprisonment up to 3 years or fine or both. An additional fine to recover the funds in question can also be levied.
- Penalty for contravention of an order made in respect of a notified place:- imprisonment up to one year and fine
- Punishment for unlawful activities:-
a. any person who commits, aids, abets or advocates an unlawful activity- imprisonment up to seven years and fine
b. any person assisting any unlawful association in an unlawful activity declared and confirmed to be so- imprisonment up to five years or fine or both.
Sri Indra Das v. State of Assam
The Supreme court in this case, read down the provisions specified in Section 10 of the Act and held that literal interpretation of the provision penalizing mere membership of an unlawful association would lead to the infringement of articles 19 and 21 of the constitution of India.
CHAPTER IV- TERRORIST ACTIVITY
This chapter defines and deals with various aspects incidental to or consequential of a terrorist act. It also enlists and penalizes various acts which could be performed in order to give effect to a terrorist activity. ‘Terrorist act‘ has been defined in Section 15 of the act and has been penalized in Section 16
Section 16 states that any person committing a terrorist act will be punishable if
- The act causes death of any individual with – life imprisonment or death and fine; and
- In any other case with – imprisonment of five years to life imprisonment and fine.
Other offences such as raising funds for terrorist act, conspiracy, harbouring, etc. including concealing any offender organising of terrorist camps etc are enlisted and penalized in this chapter.
Section 23 of the Act lays down the provision for enhanced penalties which states that if any person is in unauthorized possession of lethal substance or contravenes any provision of the statutes mentioned in the provision with the intent to aid a terrorist act, he will be penalized with imprisonment of five years to life imprisonment and fine.
Section 43E states that while an offence in relation to Section 15 is being prosecuted, if it is proved that the accused possessed any arms or any other substance which were used in the terrorist act, or any definite evidence that the accused was accomplice in the committance of the offence were found on the site of the offence, the guilt of the accused will be presumed unless proved otherwise by the accused himself.
CHAPTER V- FORFEITURE OF PROCEEDS OF TERRORISM
Chapter V majorly deals with the proceeds of terrorism and includes all property intended to be used for terrorism. This chapter vests the officer investigating offences under chapters IV and VI the power to seize any property with due procedure which according to him constitutes ‘proceeds of terrorism’. The court has the power to confirm this decision resulting in forfeiture of that property. Provisions for representation of the accused with reference to presenting a show cause notice and right to appeal against forfeiture have also been provided for. This order of forfeiture as per Section 29 is an additional imposition and is not to be construed as an interference with other punishments awarded under chapters IV and VI.
CHAPTER VI- TERRORIST ORGANISATIONS AND INDIVIDUALS
It is specified under Section 35 that all organizations enlisted under the First schedule and individuals enlisted in the Fourth schedule are to be identified as terrorist organizations or a terrorist respectively, and the central government has the power to amend the first and the fourth schedule by way of addition or removal of any organization or individual or any other way. Provision for application for denotification to the central government by the organization or the individual himself or any person aggrieved by such inclusion has also been laid down under Section 36.
According to Section 38 of the act, membership of and committing offences related to the terrorist organization post its inclusion in the first schedule is punishable with imprisonment up to ten years or fine or both. Penalization of giving support to a terrorist organization with imprisonment up to ten years or fine or both and raising fund for a terrorist organization with imprisonment up to fourteen years or fine or both has also been provided for.
CHAPTER VII- MISCELLANEOUS
Chapter VII deals with miscellaneous provisions with respect to the procedure to be employed while investigating the offences enlisted in the act. This chapter pertains to provisions with respect to power to delegate to the state government, powers to arrest, search, procedure of arrest, seizure, obligation to furnish information etc., and various other provisions have also been provided for with respect to powers of the central government in relation to its rule making power.
CONCERNS RAISED WITH RESPECT TO THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2019
While it is a matter of importance to introduce stringent provisions in the legislations to win the battle against terrorism that looms over India, the amendment brought by the latest Act of 2019 has led to many concerns being raised.
Firstly, the amendment has introduced the Fourth schedule which shall harbor the names of individuals declared to be terrorists who act independent of an organization. While it is a matter of fact that various individuals who commit such acts do so in their personal capacity, and that provisions to prevent the same are required, the creeping doubts regarding misuse of this provision cannot be ignored. It is a matter of concern that due to unclear demarcations regarding promotion of terrorism, this provision becomes an oppressive tool in the hands of the state to silence those who raise their voices against the state policies.
Secondly, the right to detain or arrest an individual and to declare him as a terrorist prior to proper proceedings or a trial without employing the principles of natural justice is a clear violation of the right to life and liberty as well as that of speech and expression of an individual.
Thirdly, condemnation of an individual prior to exercising his right to be heard and reaching a proper conclusion also violates his right to reputation which gets tarnished due to the tag of terrorism being put against his name.
Straying away from the amendment, the provisions laid down under Section 43(D) allow the detention of the accused for up to 180 days for the purposes of investigation and makes this offence cognizable. The right to bail is also snatched away from the accused if the court is of the opinion that the allegations are prima facie true.
While the importance of an anti terrorism law is understood, it is also necessary to be seen to that the stringent provisions of this legislation are not misused to silence the voice of the land or to invalidate the basic fundamental rights of the citizens under the garb of protection of the motherland.