13 Jun 2023 4:35 AM GMT
In recent years, The Unlawful Activities (Prevention) Act (UAPA), has been the subject of intense scrutiny and debate. While it was enacted with the intention of combating terrorism and ensuring national security, its implementation and the consequences have sparked concerns about the erosion of civil liberties and the stifling of dissent. With the increasing concerns over the UAPA,...
In recent years, The Unlawful Activities (Prevention) Act (UAPA), has been the subject of intense scrutiny and debate. While it was enacted with the intention of combating terrorism and ensuring national security, its implementation and the consequences have sparked concerns about the erosion of civil liberties and the stifling of dissent. With the increasing concerns over the UAPA, it becomes imperative to delve deep into its intricacies and unravel its fallacies. This article aims to dissect the misconceptions surrounding the UAPA, exposing the potential dangers it poses to the democratic fabric of our society. It also discusses some potential solutions for the same.
Anomalies with the UAPA in its Current State
The Statute in its current state contains a number of anomalies that have weakened the intent behind its introduction. Rather than prevent terrorism, the statute has instead struck fear in the voices that support democracy, where simply disagreeing with the government's stance has come to be viewed as a threat to national security. There are concerns raised about the perceived stagnancy of terrorism laws, despite multiple amendments aiming to make them more acceptable to the public. However, some argue that instead of addressing potential misuse and introducing leniency, there is a growing perception of these laws becoming increasingly stringent and restrictive.
Even the judiciary has been unable to play a significant role in dealing with UAPA related cases.
The Supreme Court has been unable to provide adequate safeguards against arbitrary arrests, malicious prosecutions and long pre-trial detentions in the UAPA era. This is a big blot on democracy and free speech, as it creates fears for those who voice their opinion. Without amendments, the effective implementation and achievement of the desires results of such laws is being severely hampered.
UAPA AND THE CORNERSTONES OF OUR DEMOCRACY
The breadth and consequences of UAPA are substantially out of proportion to its declared goals. Terms like “terrorist act”, “unlawful activity”, “advocacy”, “conspiracy”, “likely to threaten”, and “likely to strike terror” have been framed vaguely and seem to give agencies arbitrary powers. For example:
Section 2(o) of the Act defines 'unlawful activity' as any activity undertaken by an individual or an organisation, “(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or is intended to cause disaffection against India;”. From this definition, it is clear that the definition is aimed primarily towards secession. However, clause (ii) places even 'disclaiming' and 'questioning' in the bracket of unlawful activity. Perhaps, 'incitement' could have been used in this context. 
This leaves it all up to the judges to interpret the legislation according to their own understanding of the law, which leaves the door open for a great deal of subjectivity, thus, likely to result in quite different rulings for similar cases.
There is also a lack of standards for prosecution. The act allows for a blind reliance on police cases. This is why UAPA holds one of the worst records in terms of prosecution success. According to a PUCL report in 2022, between 2015 and 2020, less than 3 percent of arrests made under the UAPA resulted in convictions. Only 1,080 of the 4,690 people detained under the UAPA between 2018 and 2020 received bail, according to the report. Unlike TADA and POTA, no judgment or decision on the constitutionality of UAPA has been given by the supreme court; however, its repeated abuse has become a concern for our democracy.
WHEN JAIL BECAME A RULE AND BAIL, AN EXCEPTION.
Our constitution encourages the idea that "bail is a rule and jail is an exception," yet in UAPA it appears that the lawmakers are utterly unaware of this principle The UAPA's Section 43D(5) provides for the long-term incarceration of those accused of violating the law without bail, which can lead to abuses of their right to liberty and due process of law.
The conclusions of Kartar Singh v. State of Punjab (1994) and Mohammad Arif v. State of Maharashtra (2015) have been overruled by the judgment in NIA v. Zahoor Ahmad Shah Watali (2020). The Supreme Court ruled in Kartar Singh (supra) that the presumption of guilt violates both constitutional and criminal law norms. The Court noted that the burden of proof is always on the prosecution to establish the defendant's guilt, and the defendant cannot be required to establish his or her innocence. The Court additionally noted that the presumption of guilt is against the fundamentals of criminal law and that the burden of proof never shifts to the accused except when the case is prima facie against the accused. In Mohammad Arif’s case, the Bombay HC observed that the provision of the UAPA that shifts the burden of proof to the accused is violative of the Constitution and the principles of criminal law. But both these findings seem to have found no consideration in NIA v Zahoor Ahmad Shah Watali (2020).
The Court’s ruling in NIA v Zahoor Ahmad Shah Watali (2020) has made the grant of bail almost impossible. The court ruled that it is not permissible for courts to even engage in a detailed analysis of the prosecution case while considering bail under UAPA and to weigh whether the evidence adduced by the prosecution is even sufficient or not. Now the main issue that arises out of this judgment is proportionality, a fundamental principle of our Constitution. There are various criminal statutes in India that penalize criminal offenses none of those statutes marks bail as an exception. Rather, the principle followed by the criminal statutes in India is ‘Bail is a rule and Jail is an exception’ where the burden of proof is on the prosecution to prove the wrong done by the accused, while in the case of UAPA, it is the other way around where ‘Jail is a rule and bail is an exception’ where it is on accused to prove he is not guilty as it is prima facie believed that the accused is guilty of the offense. This makes the anti-terror law, an instrument of terror that can be misused by the government to suppress the dissenting voices of individuals and organizations by keeping non-guilty accused in jails for a long period of time without any evidence of them doing any wrong.
LOSS OF REPUTATION AND MONETARY LOSS
Other important points to be considered are the effects of wrongful arrests and prolonged incarceration on individuals who are later acquitted. Wrongful arrests and prolonged incarceration can have a huge financial impact, such as job loss or difficulty running their businesses while they are in detention.
Wrongful arrests and prolonged incarceration can also cause immense psychological distress and emotional trauma, such as anxiety, depression, post-traumatic stress disorder (PTSD), and a range of other mental health issues. It is important to acknowledge and address the profound effects of wrongful arrests and prolonged incarceration on individuals who are later acquitted.
CUSTODY FOR EXTENDED PERIODS WITHOUT TRIAL UNDER UAPA DRAINS TAXPAYERS’ MONEY
The state is liable for the care and maintenance of those being detained in custody while they await trial. This includes providing access to food, clothing, healthcare, and other essentials. The drain on taxpayers' money is particularly acute in cases under the UAPA, as these cases can take a long time to be resolved.
The UAPA allows for extended periods of custody without trial, which can stretch on for months or even years, significantly draining taxpayers' money. Additionally, keeping accused persons in custody without trial also results in a backlog of cases in the legal system, further increasing the cost of the legal process.
The Way Forward
UAPA in its current form requires some significant changes to make it more purposeful and justice driven. The changes that are suggested hereunder are an effort by the authors to propose a way forward for the concerned authorities to take notice and work for its reformation.
ELIMINATING VAGUENESS FROM DEFINITIONS
As stated in Arup Bhuyan v. The State of Assam, the court emphasizes the need to distinguish between an individual's membership in a banned organization and their involvement in terrorist activities in order to prevent the misuse of the UAPA. Therefore, the definition should be precise in order to hold the guilty party accountable under the law while keeping the non-guilty accused on the safe side. Also, in the case of Kedar Nath Singh v. State of Bihar, the Supreme Court of India held that the definition of "sedition" in the Indian Penal Code must be narrowly construed to avoid violation of free speech rights. This principle can be applied to the definition of "terrorist activity" in the UAPA to ensure that it does not violate fundamental justice, due process, individual liberty, and the basic structure doctrine of the Constitution.
Legislative amendments can be conducted to clarify and hone up on ambiguous definitions in the UAPA. Judicial interpretation can provide guidance on the interpretation of vague terms in the UAPA. Legal challenges and precedents can draw attention to potential problems brought on by ambiguous language and call for judicial action to clarify the law's meaning. Expert input and public consultation can be sought to address the issue of vague definitions. International best practices can help identify specific elements and criteria used to define offences and ensure clarity in the legal framework.
DEALING WITH THE STRINGENT BAIL PROVISIONS
The government may amend Section 43D(5) to ensure that the accused is given a fair trial and the presumption of guilt is not used to deny them the right to a fair trial. The changes that can be brought are:
To make UAPA consistent with the constitution, multiple amendments to the law are required to include provisions that protect the rights of the accused, including the right to a fair trial, the right to legal representation, and the right to be informed about the charges against them.
NECESSITY OF COMPENSATION FRAMEWORK
It is crucial for legal systems and societies to acknowledge the multifaceted impact of wrongful arrests and prolonged incarceration on individuals and take appropriate measures to support them. In the United States, the case of Bivens v. Six Unknown Named Agents (1971) established the right of individuals to seek damages from federal officials for violations of their constitutional rights, including wrongful arrest and detention.
In India, the case of Rudul Sah v. State of Bihar recognized the right to compensation for individuals wrongfully arrested and detained, stating that "the deprivation of the constitutional rights of a citizen is a matter of serious concern."
These cases highlight the recognition by courts that compensation is an essential element in addressing the injustices faced by wrongfully incarcerated individuals.
In a 1989 case, filed by Saheli NGO with regard to death in police custody, the Supreme Court granted Rs 75,000 as compensation.
In the case of Nilabati Behera, Nilabati’s son died in police custody. The body was later found near some railway track. The Supreme Court in 1993 awarded Nilabati Rs 1,50,000 as compensation.
But in recent cases, the trend is not being followed. In the case of Mohd. Habib, a Tripura man, was arrested in Bengaluru on UAPA allegations. He was imprisoned for four years before being released due to the lack of evidence against him. This was also a case of discharge rather than acquittal following the trial. He was not, however, compensated in any way.
Therefore, there must be a framework of compensation, to be awarded to the victims of the draconian law. Furthermore, while considering the compensation amount, not only should the issue of detaining an innocent person who hasn’t committed a crime be taken into, but also factors like monetary loss, reputation loss, mental agony, lack of nutrition in the jails and soft torture should be taken into consideration.
WISE USE OF TAXPAYER’S MONEY
The government should enforce strict criteria for invoking the UAPA, such as the requirement of a prior sanction from the designated authority. Safeguards should be introduced to prevent misuse of the UAPA, such as requiring the police to record all interrogations and maintaining a transparent record of the cases filed under the UAPA. Speedy trials must be ensured so that innocent citizens are not subjected to prolonged legal battles that drain taxpayers' money. The government can introduce provisions that mandate fast-track courts for UAPA cases or set strict timelines for the trial process.
In the case of K. M. Roy v. Union of India, the Supreme Court of India emphasized the importance of preventing the misuse of special laws, such as the UAPA. The court held that special laws should not be used to curb dissent and should be applied only in cases of serious crimes that threaten the security of the state.
If these considerations are made, a significant amount of taxpayer money might be saved and instead be used to speed up court proceedings rather than sustaining the accused.
This article highlights anomalies present in UAPA's current state, such as stringent bail provisions, vague definitions, prolonged trials, and the presumption of guilt.
The stringent bail provisions create scenarios where individuals are often held in pretrial detention without clear justification, denying them their right to liberty until proven guilty.
Moreover, vague definitions in UAPA add another layer of uncertainty and potential abuse. When laws and provisions lack precise definitions, they become open to interpretation, allowing for arbitrary enforcement and potential bias. This ambiguity erodes the trust in the law.
Furthermore, prolonged trials exacerbate the challenges faced by the accused under UAPA. Lengthy court proceedings not only place an immense burden on individuals, both emotionally and financially, but they also hinder the timely administration of justice. Delays in trials can lead to a loss of evidence, fading witness recollections, and an overall diminished ability to ascertain the truth, compromising the integrity of the judicial process.
Lastly, the presumption of guilt, even before the completion of a fair trial, contradicts the cornerstone of justice. When individuals are presumed guilty from the outset, the burden of proof shifts onto the accused, challenging their ability to mount a robust defense. This presumption can result in wrongful convictions, where innocent individuals are unfairly penalized due to the flawed assumption of guilt.
Addressing these anomalies in UAPA is crucial for safeguarding the principles of justice, protecting individual rights, and ensuring a fair and equitable society. It requires comprehensive reforms that prioritize the presumption of innocence, clarify legal definitions, expedite trial processes, and prioritize the protection of individual liberties, as discussed in the article.
By striving for a legal system that upholds these principles, we can restore public trust, promote fairness, and work towards a more just society where the rights of all individuals are respected and protected. Through such reforms, we believe the anomalies in UAPA can be rectified.
As said by Robert H. Schuller- Again, and again, the impossible problem is solved when we see that the problem is only a tough decision waiting to be made.
 Unlawful Activities (Prevention) Act 1967 (India).
 Newsclick, 'UAPA: Vague Definitions and Sweeping Powers' (2023) https://www.newsclick.in/uapa-vague-definitions-and-sweeping-powers accessed 10 May 2023.
 Scroll.in, 'Less than 3% arrests under UAPA resulted in conviction between 2015 and 2020, shows report' (2022) https://scroll.in/latest/1033009/less-than-3-arrests-under-uapa-resulted-in-conviction-between-2015-and-2020-shows-report accessed 2 June 2023.
 Kartar Singh v State of Punjab  3 SCC 569.
 Mohammad Arif v State of Maharashtra  9 SCC 267.
 NIA v Zahoor Ahmad Shah Watali  4 SCC 571.
 Arup Bhuyan v State of Assam  3 SCC 377.
 Kedar Nath Singh v State of Bihar  1 SCR 423.
 Rudul Sah v State of Bihar  4 SCC 141.
 Smt. Nilabati Behera Alias Lalit v State of Orissa and Others  2 SCC 746.
 State of Karnataka v Shabuddin and Ors,  S.C.NO.953/2017.
 K. M. Roy v Union of India  1 SCC 271.