Misuse of UAPA – UPSC GS2

About UAPA:
Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008. The significant provisions of amendments are:
  • The period of detention is increased enlarging the period of custody prior to which default bail cannot be granted.
  • Regular bail is subject to the satisfaction of the judge that no prima facie case exists. This makes bail a near impossibility.
  • Lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes.
How Subsequent amendments strengthened UAPA?
  • The UAPA became a terror law after amendments were introduced in 2004. But successive amendments between 2008, after the Mumbai terror attacks, and 2019 significantly expanded the scope of the Act.
  • Currently, in its present form, the UAPA resembles the two previous and hugely controversial terror laws.
    • Terrorist and Disruptive Activities Prevention Act (TADA): It was passed against the backdrop of the turmoil in Punjab. However, It was allowed to lapse in 1995 after being criticized by human rights activists for giving the security agencies the freedom to arrest and torture citizens.
    • Prevention of Terrorism Act (POTA). It allowed, among other things, confessions obtained by the police to be submitted in evidence. Even this law was allowed to lapse in 2004 due to rising criticism against its misuse by some states.
  • The 2019 amendment strengthened the UAPA more. It allowed the government to name individuals as terrorists. Previously, only organizations could be given this tag.
Issues with UAPA:
  • Terrorism not defined properly:
    • There is no universal definition of the term ‘terrorism’ either in India or at the international level.
    • Section 15 of UAPA merely defines a terrorist act in extremely wide and vague words. It states that any act with intent to threaten or likely to threaten the unity, integrity, security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people is a terrorist act.
  • Vagueness in UAPA:
    • UAPA states that a terrorist act can be committed by using bombs, dynamite or other explosive substances or inflammable substances or by any other means of whatever nature to cause or likely to cause death or injuries. Here the meaning of any other means is not clear.
  • It enables the state to arrest and incarcerate citizens almost indefinitely. Bail under the law is extremely difficult to obtain, since courts are required to depend on police documents to presume the guilt of the accused.
  • Recent amendments extended the pre-charge sheet custody period from 90 days to 180 days but even this time period is observed more in the breach.
  • It potentially reduces the economic ability of the accused to fight a legal case. Because UAPA allows courts to provide for the attachment of property equivalent to the proceeds of terrorism involved in the offense.
  • The condition of UAPA prisoners: The persons arrested with UAPA are not entitled to the provisions of jail manual citing safety and security concerns. Further, there is a continuous violation of human rights inside prison.
  • High pendency rate: The National Crime Records Bureau (NCRB) published the status of UAPA between 2016 and 2019.
    • A total of 4,231 FIRs were filed under various sections of the UAPA, of which 112 cases have resulted in convictions. While the number of acquittals is low, at 187.
    • According to the home ministry data, there has been a 72 percent increase in the number of arrests made under the UAPA between 2015 and 2019.
    • The rate of pendency at the level of trial is at an average of 95.5 per cent. This  signifies the reasons for long years of undertrial imprisonment.
  • Between 2016 and 2019, the period for which UAPA figures have been published by the National Crime Records Bureau (NCRB), a total of 4,231 First Information Report (FIR) were filed under various sections of the UAPA, of which 112 cases have resulted in convictions. This indicates that it is often misused.
Judicial interventions:
  • In Union of India v K A Najeeb case, 2020: The Court held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated.
  • In Gautam Navlakha v NIA. case:  The Supreme Court held that house arrest fell within the ambit of judicial custody but refused to count the days spent in house arrest as custody for the purpose of granting him default bail.
  • Natasha Narwal and others case:
    • The court held that the Citizenship (Amendment) Act (CAA) protests cannot be covered by the expression ‘any other means’ under UAPA.
    • A general word used in any statute after specific words should be interpreted in the context of specific words.
Way Forward:
  • There is a greater role for the judiciary here to carefully examine the cases of alleged misuse. Arbitrariness and subjectivity under the law should be checked through Judicial review.
  • Under the right to appeal for the individual against him being designated as terrorists, judiciary should follow the fundamental principle of fair procedure and should remain alert of any intention of executive to frame the individual by manufacturing fake evidence.
  • Officers who are found guilty of any misuse and abuse of the powers under the law must be strictly punished.
  • Drawing the line between individual freedom and state obligation to provide security is a case of classical dilemma. It is up to the state, judiciary, civil society, to strike a balance between constitutional freedom and the imperative of anti-terror activities.