In 1962, the first meeting of the National Integration Council took place under the chairmanship of the then Prime Minister, Jawaharlal Nehru. Soon after the first meeting, the Council recommended that 'reasonable' restrictions be applied to the exercise of fundamental rights of the citizens in the interest of the sovereignty and integrity of the Indian State, and Parliament passed the 16th Amendment to the Constitution of India. The Amendment gave power to the government to put restrictions on freedom of speech and expression, freedom to peacefully assemble, and freedom to form associations in the interest of sovereignty and unity of India. To meet the objectives of the 16th Amendment, Parliament enacted the Unlawful Activities (Prevention) Act, 1967.
The main purpose of UAPA was to maintain the "integrity and Sovereignty" of India by reining in the various secession movements brewing across the country at the time. It was enacted at the time to be directed against the DMK leaders who were advocating secession from Tamil Nadu. Long after the resolution of the Tamil issue, the law remains in effect. Over the years the Act has been amended multiple times under various governments with a view of increasing the powers of the state to the detriment of individual liberties.
Between 1967 and 2018, UAPA has been amended six times: each time expanding the range of powers given to the state over citizens. For example, the first Amendment to UAPA in 1969, extended the application of the Act to Jammu and Kashmir. In 2004, the law was amended again to incorporate most of the provisions of the dreaded POTA, since repealed. In 2008, the definition of what constitutes a 'terrorist act' was broadened.
The Unlawful Activities (Prevention) Amendment Act, 2019 goes a step ahead. Under the Act, the Union government of the day can designate any individual as a 'terrorist' merely on suspicion. Further, it augments the powers of the National Investigation Agency and allows it to carry out search and seizure activities throughout the territory of India, without consulting or coordinating with the state government machinery. Where one section of the law shifts the burden of proof on the suspect individual instead of the prosecution, another allows the government to detain suspected 'terrorists' for up to two years without having to prove that an offence has been committed.
Centuries of jurisprudence and evolution of the justice system advise that security agencies must use "probable cause" as certified by a judicial officer as the prior standard for arrest or labelling of any individual. The bar of mere suspicion is unjust, unfair, and unreasonable. The Code of Criminal Procedure, 1973 dictates that an arrest without a warrant can be made only when an individual is "concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned." (Section 41).
The Amendment makes the government a judge in its own cause, violating the very basic norm of impartiality in the dispensation of justice. While an accused can access constitutional courts for violations of fundamental rights, years could pass before justice is served. The lower bar of mere suspicion places unfettered power in the hands of government officials to detain any person who opposes government policies.
The change in law also dilutes federalism and takes away the rights of states. It allows the Union Government to intervene in any state without even informing the local authorities. Besides, it is probably inefficient to gloss over coordinating with state governments to see if any inquiries or investigation procedures are already underway.
Lastly, despite the claim made by the government that the law is in compliance of India's international obligations, it is in direct violation of multiple conventions including the International Convention on Civil and Political Rights, 1967. The Convention recognizes the presumption of innocence as a universal human right and allows the use of pre-trial detention only as a matter of last resort. UAPA 2019 violates both these provisions.
This latest version the Act is reminiscent of the dreaded Maintenance of Internal Security Act (MISA), 1971, the emergency era law grossly misused by Ms Indira Gandhi. MISA, which allowed for indefinite preventive detention, wiretapping, and search and seizure of property without a warrant, was used to suppress political dissent during the emergency.
Most of the public opposition to the Amendment has been on grounds that this Amendment takes it much too far. In our opinion, this is a myopic view of the issue. The problem isn't the Amendment, so much as the Act itself. In truth, the UAPA has been a long and oft-abused tool for suppressing dissent. The problem is not limited to a particular government or political party. The UAPA was passed by Congress in 1967, and various administrations since then have used the Act to silence their opponents, it has become a tool of repression instead of a law that combats terrorism. In fact, two-thirds of the accused in the UAPA so far have been acquitted or discharged by the courts.
We have a well-established criminal justice system the current provisions of which could effectively deal with any unlawful activity, including terrorism. In fact, all terror acts mentioned under Section 15 are already illegal under various laws such as Explosive Substances Act, 1908; Atomic Energy Act 1962; SAARC Convention on (Suppression of Terrorism) Act, 1993; Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005; Suppression of Unlawful Acts Against Safety of Maritime Navigation Act 2002; Suppression of Unlawful Acts Against Safety of Civil Aviation Act, 1982; Anti-Hijacking Act, 1982; Essential Services Maintenance Act, 1968; and the Indian Penal Code, 1860. UAPA rests on faulty premises and only serves as yet another tool to roughshod over liberty and justice for all Indians.
A republic is built on two plinths: lofty ideals and deep suspicion of those in power. Instruments such as UAPA go against both. We need to raise our voices not just against the Amendment, draconian as it is, but against the entire Act. UAPA is a disgrace to our claims of being a Rule of Law republic.
(Bhuvana Anand is Director, Research at the Centre for Civil Society, New Delhi. Sudhanshu Neema is Manager, Advocacy at the Centre for Civil Society, New Delhi. Views are personal)