Adv. S Balan, President, NCHRO Karnataka Chapter
The UAPA, like its predecessors TADA and POTA, grants the State sweeping powers to deprive citizens of freedom of expression,assembly and association. Under UAPA, the Executive holds immense power to silent political dissent.
Criminal Law Amendment Act, 1908
The first law including provisions for banning organisations was the colonial Criminal Law Amendment Act 1908.
16th Amendment of Criminal Law
The 16th Amendment occurred due to DMK contesting elections in Tamil Nadu with secession from India being part of their manifesto. Though the UAPA Bill was tabled twice in parliament during the 3rd Lok Sabha and then again during 4th Lok Sabha, in both cases it was withdrawn due to opposition, finally it was passed by the 5th Lok Sabha in 1967. During the course of debates in three consecutive Lok Sabhas, many MPs likened the UAPA Bill to colonial laws.
Amendments to UAPA in 2004, 2008 and 2019
The Amendment of UAPA in 2004 introduced provisions from TADA and POTA, both being stringent laws that had led to severe rights violations. Amendment 2004 made substantial changes to the definition of unlawful activity, including the definition of terrorist act from POTA which lapsed and also introduced the concept of “terrorist gang”.
On 17th December 2008, another Amendment of UAPA was moved without any opposition from anyone. With this amendment, the UAPA became an omnibus and permanent act that provided the Government with grounds to ban association under two provisions: Under sections 3 and 35 categorising as a terrorist organisation, terrorist gang, and unlawful association.
Indeed, some of the provisions of UAPA are far worse than TADA and POTA. Now by the 2019 Amendment, any individual can be declared as a terrorist or terrorist gangster.
The structure of UAPA indicates terror causing actions can only be done by those who do not represent the majority community or dominant sections of the nation. The definitions 2(k) – terrorist act, 2(l) terrorist gang, 2(m) terrorist organisation, 2(o) unlawful activity, and 2(p) unlawful association is thus a violation of the principle of equality before law.
Section 3(1) of UAPA provides powers to the Executive to declare any association as an unlawful association by notification in the official gazette. Proviso to section 3(2) gives power to the central government not to disclose any fact if it considers it to be against public interest. Section 3(3) provides that after declaring any association as unlawful, it has to get ratified by a reference under section 4 to Tribunal. Section 35 of UAPA bestows absolute power to the Executive to add an organisation or an individual in the First Schedule. Thus, entire rights guaranteed under Part III of the Constitution could be just snatched from any voice of dissent.
Section 10 of UAPA, a mere membership in an association which is declared as unlawful by a notification under sub-section 3 of Section 3 is punishable upto two years imprisonment.
Section 13 – Punishment for unlawful activity: without even mens rea and actus reus, anyone can be implicated in the case in the guise or garb of advocating, abetting and advising to do an unlawful activity of any association declared as unlawful association under section 3 of UAPA – punishment is upto 7 years and also fine.
Section 15 defines the Terrorist Act and Section 16 provides punishable death or imprisonment for life. Under section 43E, burden is shifted on the accused, State is not required to prove beyond the shadow of doubts.
Sections 17 and 40 of UAPA provides punishment upto life and 14 years imprisonment for raising funds for a terrorist act of a terrorist organisation.
Section 18 of UAPA is punishable upto life imprisonment. Mere abetting or talking to a member of the association or organisation can be categorised as unlawful and is enough to implicate anyone for the offence of conspiracy.
Section 20 and Section 38 of UAPA provides punishment upto life and 14 years imprisonment based on a mere allegation that a person is a member of a terrorist gang or terrorist organisation involved in a terrorist act.
Proviso (a) and (b) of Section 38 of UAPA shifts burden of proof on the accused that he/she should prove that the organisation was not declared as a terrorist organisation at the time when he/she became a member or began to profess to be a member.
Chapter VII Consisting of Sections 41 to 53 of UAPA Act.
Section 43D(2) Custody period up to 180 days and each remand is upto 30 days.
43D(4) – No anticipatory bail under section 438
43D(5) indicates accused persons shall not be released on bail if there are reasonable grounds for believing that the accusation against such persons are prima facie true.
Section 43E of UAP Act provides for presumption as to offence under Section 16 of the Act. Its provisos (a) and (b) are derived from Section 53 of POTA.
Notifying an individual as a terrorist or an organisation as a terrorist organisation without giving an opportunity of being heard violates the individuals or group of individuals right to reputation, dignity and personal liberty which are the facets of right to life are violative of rights guaranteed under article 21 of the Constitution.
The unfettered power bestowed on the Central government to declare an individual as a terrorist or an organisation as a terrorist organisation only if it believes it is involved in terrorism is arbitrary and violates Article 14 of the Constitution.
The unfettered power to the Executive without any safeguards to notify individuals as terrorists and organisations as terrorist organisations can be abused to muzzle free speech and abused by the Executive to declare activists and dissenters as terrorists is violative of Article 19(1)(a) of the Constitution of India.
Dr. Ambedkar pointed out during discussion on Nov 4, 1948 in a Constituent Assembly of India that “The undemocratic nature of the society is often reflected in the legal machinery and assumes its worse shape in the field of criminal law. Theoretically, it is understood that the right to fair trial is amongst the most fundamental tenets of a criminal justice system. In practice, however, this fairness often becomes a victim of societal realities, the realities which are born out of the prevailing standards of morality and which reflect in various elements of a criminal proceeding, as we shall see.”
Fair trials are explicitly proclaimed in Article 14 of the International Covenants of Civil and Political Rights, Article 11 of Universal Declaration of Human Rights, Indian Constitution through its Article 21, 6th Amendment to U.S. Constitution and Article 6 of the European Convention on Human Rights.
Comparison of terrorist attacks in India based on ideology of perpetrators between 2000 to 20014 pertaining to 5052 attacks.
a. 42% – Left-wing Extremism
b. 22% – Separatism
c. 35% – Miscellaneous or Unknown Extremism
d. 1% – Islamic
Source: GTD (Global Terrorism Database), Maryland University, US.
As per the Schedule I of the UAPA:-
a. 16+2 Islamic Organisations
b. 15 Secessionist Organisations
c. 8 Left-wing Extremism
None of the 35% of the miscellaneous organisations which are responsible for Malegaon Bomb Blast (2006), Hyderabad Mecca Masjid Blast (2007), Samjhauta Express Blast (2007), Ajmer
Bomb Blast (2007), Panvel Bomb Blast (2008), Auditorium Bomb Blast (2012), Mob Lynches, Mass murders during 2002 are neither banned nor declared as unlawful organisations or terrorist organisations.
Tribunal constituted under section 5 of the UAPA.
The tribunal headed by Justice BN Chaturvedi while upholding the ban in 2006, advanced several arguments justifying the continued ban on SIMI.
When SIMI appeared before Tribunal and requested for access to evidence presented against it, the tribunal said that the Central Government can withhold material for public interest. And whereas on 4th June 1993, a UAPA Tribunal refused to ban VHP/ RSS/Bajrang Dal which were involved in several bomb blasts/attacks giving benefit of doubt.
Viewed from any angle, the State Executive is biased against minorities, dalits, adivasis, workers, marginalised, and vulnerable caste and class and bent upon implicating them under UAPA.
During the colonial era, organisations which opposed alien rule, looting of natural, mineral and human resources were categorized as unlawful/terrorist organisations, and its members as terrorists.
Now, any organisation which opposes the loot of natural and mineral resources at tribal and adivasi areas are declared as terrorist organisations, terrorist gangs, unlawful association vis-a-vis its members and sympathisers are arbitrarily categorised as terrorists.
The way the Advocate Sudha Bharadwaj, Scholar Anand Teltumde and others were arrested and imprisoned, prima facie indicates that voices of dissent are throttled, pressing draconian UAPA into service alas to protect corporate fascist interests.