Important thread on #UAPA & its constitutionality.

The use of the Unlawful Activities Prevention Act, 1967 (“UAPA”) in the last few years needs critical analysis, especially in light of the increasing use of the UAPA.

The law was formed in 1967 & its constitutionality has never been challenged in any of the High Courts or the Supreme Court. In 2019, govt amended section 35 & it has been a case of unconstitutionality & hence challenged in upper court. Read the law here

https://www.mha.gov.in/sites/default/files/UAPA-1967_0.pdf

This amendment allows the Government to even categorize individuals involved in terrorism and not just organizations.

Detractors of the Amendment argue that it gives arbitrary powers to the executive and violates an individual’s right to due process of law & right to dissent.

Although the Act has been in force since 1967, the Parliament only inserted a dedicated Chapter towards punishing terrorist activities in 2004 by way of the UAPA Amendment Act, 2004 (Chapter IV). Thereafter, amendments were made to the legislation in 2008 and 2013 as well.

Prior to the redesigning of UAPA, terrorist activities were primarily dealt with under the now repealed Acts 1987 (‘TADA’) and Prevention of Terrorism Act, 2002 (‘POTA’). Over the years, a number of challenges have been made to the constitutional validity of both TADA and POTA.

These challenges were mainly on ground that the Union did not have the legislative competence to enact these laws. For ex- in Kartar Singh v.State of Punjab, the validity of TADA was challenged on the ground that it dealt with the issue of ‘public order’, which was state concern

A similar challenge was mounted against POTA in PUCL v Union of India, which too was repelled by the Court on similar grounds. By contrast, the UAPA has never been challenged on the ground of legislative competence.

HM might have put that other countries have similar laws but a closer look at the details of the statute, or the lack thereof, reveals that the Act has procedurally vested unfettered power in the central government to control the process of labelling anyone a terrorist.

This line of critique overshadows three specific characteristics of the amendment- These are, specifically, the ambiguity about which authority in the government decides whom to label a terrorist and on what basis, how this information gets communicated to the labeled individual-

the law’s silence about the consequence of being labelled a terrorist.

The government has not provided enough details about these elements in the amendment, and instead simply emphasised the amendment’s importance to national security, in line with its larger political narrative

Firstly, the law is amorphous in setting the terms for the central government to confer, or withdraw, the “terrorist” label. It is unknown which human actors of the government will be involved in taking this call.

It is also unknown what standards apply to decide whether a person should be called terrorist. The amendment states that the central government may decide to assign the label “only if it believes” that an individual is a terrorist.

The choice to keep the labelling process faceless and shapeless in the statute erodes the accountability of those wielding power, and underscores the imbalance of power between state and subject.

The concern about the amendment is that while it conceals details about the labelling process, it prescribes a public announcement to declare a person as a terrorist. It does not require the government to send a letter to the person that it wants to brand a terrorist.

Instead, it directs the government to issue a notification in the Gazette of India—a newspaper that people from few professions ever read. This mechanism was already in place for associations and organisations. But associations and individuals differ in countless ways.

Historically, the UAPA has not secured many convictions in court. It has instead been used as a means to subject individuals to lengthy pre-trial detentions and, more recently, to persistent media vilification. https://clpr.org.in/blog/use-of-the-uapa-from-the-national-crime-reports-bureau/

The media has been vociferously branding those with a different ideology from the ruling party as “urban Maoists” and “urban Naxals.” While introducing the UAPA amendment bill in the Lok Sabha, Shah, too, said, “Those who work for urban Maoists will not be spared.”

Understand this that the media will now have legal basis to call someone a terrorist even though that person might not be convicted of a single crime.
The burden of proof would lie entirely on the person whom the government wants to brand a terrorist because the law does not-

have a procedure for them to challenge the government’s claim before the announcement is made in the Gazette. The central government’s bully pulpit is now not only the media, but the larger state machinery itself.

The third worrying characteristic about the amendment makes this obvious—nowhere does it describe what follows once an individual is labelled a terrorist.

Every law in the realm of security and crime holds the potential to be of great value to society.

But it can also be an instrument to oppress the civil liberties it was designed to protect—to this end, the manner in which the amended UAPA can be used is equally worrying.

#UAPA