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Terrorism Laws in India: Does the controversial UAPA need to be amended?

By Nevin Clinton

What is UAPA?

The Unlawful Activities (Prevention Act), 1967 (hereinafter referred to as UAPA) is a law that aims at curbing unlawful activities that threaten the sovereignty of India. The Act has proved to be extremely controversial due to the fact that there is plenty of scope for misuse. Further, the rate of conviction has been observed to be extremely low. All of these have led to the Act being deemed ‘draconian’ and asked to be reformed. 

UAPA, TADA and POTA – History of terrorism in Indian statutes

The UAPA was enacted in 1967 in order to ‘promote and ensure national integration’. It allowed the government to impose certain reasonable restrictions on some fundamental rights like freedom of speech and expression, right to assemble peacefully and without arms, and right to form associations or unions, in order to preserve the sovereignty and integrity of India. The Act then underwent amendments in 1969, 1972 and 1986 but there weren’t provisions that directly dealt with terrorism or curbing terrorism in it. 

It is noteworthy that there was a controversial Act on terrorism in force between 1985 and 1995 called the Terrorist and Disruptive Activities (Prevention) Act (TADA). This Act was then repealed by the Prevention of Terrorist Activities Act (POTA) in 2002. Now, POTA proved to be extremely contentious as well, since there were vague provisions on who a terrorist was, which led to several political arrests being made. POTA was repealed very soon in 2004 and provisions of terrorism were then added to the UAPA through the Unlawful Activities (Prevention) Amendment Act, 2004. 

Definition of ‘terrorist act’

Sections 15 to 40 of the UAPA deal with terrorism, terrorist acts and terorrist organizations. Section 15 is the most important and also the most disputed as it defines what a ‘terrorist act’ is. While subsection a) deals with usage of explosives and the like, and subsection c) deals with detaining or kidnapping people, subsection b) remains the delicate one as it deals with ‘overawing by means of criminal force or the show of criminal force’. This subsection has led to several doubts on what a terrorist act actually is and has also left plenty of scope for exploitation and misuse. The rest of the provisions deal largely with punishments while Chapter VI of the Act discusses terrorist organizations. 

Misuse of UAPA: Need for amendments

As mentioned above, the UAPA’s vague definition of ‘terrorist acts’ leaves a lot to be desired. Therefore, there have been instances of people being arrested on charges of terrorism, being jailed for a considerable amount of time, and being released after not being convicted. These people are not entitled to bail as well, since the Act prohibits the same under Section 43D. Such cases clearly point to misuse and exploitation. 

But the major problem and the need for amendments lie in the deeming of an individual as a terrorist before the trial while also denying bail. For denotification of the same, an application can be made and once that is done, the Central Government will set up a Review Committee. But the problem lies in the fact that if the arrest was a biased one motivated by political agenda or the like, the review process is also bound to be the same. The particularly long time window for the investigation process (90 days) and filing of chargesheet (180 days) is also an issue. The fact that the judiciary has not intervened and remained indifferent with regard to the UAPA is another major concern.

With the arrest under the UAPA and subsequent death of Jesuit priest and tribal rights activist, Stan Swamy, plenty of voices have been raised against the Act. Former judges of the Supreme Court have joined in and stated that the UAPA must not continue to exist in its current form. 

There is clearly a lot of work to do to make anti-terrorism laws perfect in India. Removing the vagueness in definitions, time window for filing chargesheets, better bail provisions, and so on can go a long way in being a positive change. As of now, that seems unlikely, but the growing voices and calls for the same could lead to a favourable development.