ABSTRACT
The UAPA, 1967 along with its several amendments has substantially diluted the constitutional safeguards which are guaranteed in a democracy. The legal process that is embedded within the contours of UAPA have essentially become so rigorous that its very existence questions the democratic principles upon which our country is firmly grounded.
KEYWORDS
The UAPA,1967, liberty, bail, detention
INTRODUCTION
The seeds of Unlawful Activities (Prevention) Act, 1967 were sown during the colonial period with the sole objective of prohibiting anyone from speaking against the rule of the coloniser by subjecting him to imprisonment. Some of its predecessors include the Prevention of Seditious Meetings Act, 1911 and the Rowlatt Act of 1919 that were passed by the Imperial Legislative Council. Since India got independence, 78 years down the lane, UAPA has been so firmly rooted within the framework that at this point it’s completely entangled with the ethos of democracy. Though the ideology behind UAPA is antagonistic to the democratic values of liberty and equality however, the stark reality is that a democracy like that of India comes with its loopholes that enable the hegemonic tendencies of those in power to retain and implement laws like the UAPA.
OVERVIEW OF THE UAPA AND ITS AMENDMENTS
The UAPA was legislated in 1967 as a preventative measure to combat unlawful activities that posed trouble to the nation’s integrity. The primary legislative intent behind the UAPA was to equip law enforcement agencies with the necessary tools to fight terrorism, insurrection, and other forms of violence that jeopardised public security. The form and disposition of the act is such that it equips the government with unremitting power.
In addition to designating associations as unlawful, the UAPA empowers the government to ban similar associations. Banning an association goes beyond designation and involves more severe consequences. It effectively prohibits the association’s actuality, making it illegal to operate or support the association in any way.
The major changes to the UAPA act started taking place after the year 2004. The amended UAPA was in lieu of the removal of POTA, since the definition of ‘unlawful activity’, included the definition of ‘terrorist act’ and ‘terrorist organisation’ from the repealed POTA, and also introduced the concept of a ‘terrorist gang’
The 2008 amendment broadened the definition of the term “terrorist act”and accordingly under section 43A they could arrest anyone unless there was proper evidence to prove otherwise, it extended the pre-charge detention to 180 days, then it further gave the courts the right to reject bail if the court sees any evidence as “prima facie” true, the presumption of innocence and right to a fair trial, which is a constitutional right is denied to accused.
The 2012 Amendment made the act more rigorous, leaving only a small possibility of acquittal. By the setting up of the National Counter Terrorism Centre (NCTC), it authorised the UAPA to exercise the power to arrest, search, etc, without consulting the state governments.
The 2019 Amendment gives powers to DG, NIA to attach properties acquired from proceeds of terrorism. The bill increases the ambit of who qualifies as a terrorist and empowers the government to designate individuals as terrorists. It further strengthened the power of the centre and blurred the category of who is a terrorist or what maybe a terrorist act.
UAPA DISMANTLING THE CONSTITUTIONAL SAFEGUARDS OF INDIVIDUAL LIBERTY
An accused in a UAPA case faces a very different legal reality than that prescribed under the BNSS. Sections 43A and 43B empowers the authorities with the power to arrest, search and seizure without the need for a warrant. Section 14, 43D(1) makes all offences cognisable, Section 43D(2) enhances the period of detention. It expands the 15 days of custodial remand at a stretch to 30 days and allows the judge to permit custody during the investigation up to 180 days. This procedure creates more chances for accused persons to suffer physical abuse at the hands of police. Further, Section 43D(3) undermines the power of the court to demand the attendance of accused in their trials.
Section 43D(4) disallows anticipatory bail. The UAPA specifically disallows anticipatory bail not only for alleged terrorist acts, but for all offences of alleged terrorist activity punishable under the UAPA, including conduct such as attending meetings and protests, making speeches, giving loans, and of course, conspiring to do any of the above.
Section 43D(5) enhances the restriction on bail. The test as per section 43-D(5) is for courts to refuse bail if, upon considering the police material, they are satisfied that there are “reasonable grounds for believing that the accusation against such person is prima facie true.”
With regard to the extensions of the period of custody, the Supreme Court held in State by Superintendent of Police vs Shakul Hammed, 2019 (6) SCC 350 that only when (i) progress of investigation, (ii) some reasonable reasons for further custody, (iii) the request is supported by the prosecutor is duly shown on record can the extension of custody be allowed. Further, Section 43E presumes the guilt of the accused. Additionally, the UAPA does not provide a judicial mechanism for either individuals or organisations listed as terrorists to challenge such a designation. All these provisions undeniably showcase the overwhelming powers to the executive
JUDICIAL INTERVENTION WITHIN THE LIMITS OF UAPA
A judgement that sparked debate and controversy is the National Investigation Agency vs Zahoor Ahmad Shah Watali, AIR 2019 SUPREME COURT 1734, the Supreme Court created a new doctrine that effectively allows the state/police to keep an accused in custody throughout the period of the trial. The court must presume every allegation made in the FIR to be correct. Further, being granted bail would be on the condition of the accused producing materials or evidence that can disprove the allegations. Thus, the entire burden to prove innocence rests on the accused. This judgement in its essence shrunk the whole concept of bail under UAPA.
However, in Union of India vs KA Najeeb, LL 2021 SC 56, the Supreme Court held that Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Fundamental Right to Speedy Trial. The rigours of the provision will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
Over time, there are several instances where the Supreme Court has held the arrest and detention under UAPA illegal by reason of non-compliance of statutory requirements. In Prabir Purkayastha v. State, Diary No, 42896 of 2023, the Supreme Court declared NewsClick founder and Editor-in-Chief Prabir Purkayastha’s arrest by the Delhi police and his remand in a case under the UAPA as illegal. It was held illegal because a copy of the remand application was not provided to Purkayastha before passing the remand order
Similarly, in Ahmed Mansoor and others v. The State, Crl Appeal No. 4505/2025, the Supreme Court quashed the arrest and remand of three individuals under the UAPA holding that the mandatory requirement of furnishing written grounds of arrest was not complied with. It was observed that the mandate under Section 43B of the UAPA is fulfilled only when the remand requisition report, containing the grounds of arrest is served on the accused.
CONCLUSION
It is an undeniable fact that the rigours of UAPA were at human costs. One of the most triggering instances is undeniably Father Stan Swamy’s death as an undertrial in Bhima Koregaon case. As per the statistics from the National Crime Records Bureau, the conviction rate in UAPA cases is about 2% and this staggeringly high rate of acquittals comes after years of prolonged trial which extract the life, liberty and dignity of the innocent persons. Some of them like Father Stan Swamy do not last long enough to see the outcome of the case.
It could be concluded that it is high time that accountability be fixed for the human costs extracted by these unjust detentions under UAPA on those investigating officers who trapped innocents by misusing the statute. It is equally important for the Courts to pass measures to compensate them for their liberty and dignity lost during prison term. Additionally, the State should extend a healing touch to the UAPA victims, through rehabilitation measures to enable them to piece together their shattered lives. Otherwise, the constitutional guarantee of personal liberty will remain only an empty promise.
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WRITTEN BY : AMYUKTA RAJAGOPAL
