UAPA

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Context: The Supreme Court declared the arrest and remand of NewsClick founder Prabir Purkayastha under the Unlawful Activities Prevention Act (UAPA) by the Delhi Police as "invalid in the eyes of law", requiring his release from custody.

Details

• The court ruled that neither Purkayastha nor his counsel were provided with the grounds for his arrest in writing.
• The right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution, and any violation of this right would invalidate the arrest and remand procedure.
• The court stated that the rule to communicate the grounds of arrest or detention in writing would extend equally to the case of detentions.

Unlawful Activities (Prevention) Act (UAPA)

• It was enacted to prevent unlawful activities that pose a threat to the sovereignty and integrity of India.
• It was originally passed in 1967 and has undergone several amendments over the years, with the most recent significant amendment being the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA 2019).
• The UAPA is often referred to as an "Anti-terror law" due to its focus on combating terrorist activities and related offences.

Key Provisions

• Designation of Individuals as Terrorists: Introduced by the UAPA 2019, allowing the Union Government to designate individuals as terrorists without following a formal judicial process. This power was previously limited to designated organisations.
• Expansion of Investigative Powers: The UAPA 2019 empowers investigating agencies, particularly the National Investigation Agency (NIA), by allowing officers of higher ranks to investigate cases related to terrorism.
• Seizure of Property: The amendment introduced stricter provisions regarding the seizure of property suspected to be connected with terrorism, requiring prior approval from designated authorities.
• International Treaties: The Act includes international treaties related to terrorist activities in its definition of terrorist acts, expanding its scope.
• Prosecution and Bail Provisions: The UAPA imposes strict provisions related to prosecution and bail. For instance, the Act extends the pre-charge sheet investigation period to 180 days, which is longer than the usual 60 days, and normal bail rules do not apply to accused persons under certain sections of the UAPA.

Criticism and Controversies

• Broad Definitions and Misuse: Critics argue that the definitions of "terrorist" and related terms under the UAPA are broad and vague, potentially leading to misuse by law enforcement agencies. The burden of proving innocence often falls on the accused.
• Low Conviction Rate: Despite a large number of arrests made under the UAPA, the conviction rate is notably low, raising questions about the effectiveness and fairness of the law.
• Violation of Human Rights: United Nations special reports have raised concerns that provisions of the UAPA 2019 contradict international human rights standards, particularly regarding due process and the presumption of innocence.
• Denial of Bail: Individuals charged under the UAPA often face challenges in obtaining bail, as the Act limits bail provisions for certain offences, leading to prolonged pre-trial detention.
• Political Misuse: The UAPA has been criticised for its potential misuse by authorities to target political dissenters, activists, and minority groups, raising concerns about freedom of expression and civil liberties.

Legal Challenges and Judicial Pronouncements

• The Supreme Court of India has issued rulings related to bail provisions under the UAPA, emphasizing the importance of speedy trials and the right to bail when the right to speedy trial is violated.
• Bikramjit Singh v/s The State Of Punjab (2020): The Supreme Court affirmed the fundamental right to default bail under Section 167(2) of the Code of Criminal Procedure (CrPC) when statutory investigation time limits are exceeded, asserting that default bail is a constitutional right under Article 21.
• Thwaha Faisal v/s Union of India (2020): The Supreme Court emphasised the strict construction of UAPA terms and the necessity for specific and factual allegations in charge sheets, not based on suppositions or inferences, to prevent unjust detentions under anti-terror laws.
• The Delhi High Court and other high courts have highlighted instances of misuse of the UAPA by the government, particularly in broadening the definition of "terrorist activity" to include ordinary penal offences.

Way Forward

• Clear Definition of Offences: One of the criticisms of the UAPA is its broad and vague definition of "unlawful activities" and "terrorist acts." A reform should provide clear and precise definitions of offences to prevent arbitrary use of the law and ensure legal certainty.
• Safeguards against Misuse: Introduce stringent safeguards to prevent the misuse of UAPA for political purposes or to target dissenting voices. This could include stricter oversight mechanisms, regular reviews of cases under UAPA, and penalties for misuse by law enforcement agencies.
• Bail Provisions: Review and amend bail provisions under Section 43D(5) to strike a balance between preventing terrorism and protecting the rights of the accused. Bail should be granted based on merit, evidence, and constitutional principles, ensuring timely access to justice.
• Judicial Scrutiny and Oversight: Enhance judicial oversight over UAPA cases to ensure fair trials, protection of fundamental rights, and adherence to due process. This could involve regular monitoring by higher courts and special review mechanisms for UAPA-related cases.
• Transparency and Accountability: Improve transparency in the application of UAPA by requiring detailed documentation of arrests, detention, and charges. Establish mechanisms for public accountability and reporting on the use of UAPA to maintain trust in law enforcement.
• Human Rights Compliance: Ensure that all provisions of the UAPA comply with international human rights standards and principles. This includes safeguards against torture, arbitrary detention, and discrimination based on religion, ethnicity, or political beliefs.
• Legal Aid and Support: Guarantee access to legal aid and support for individuals charged under UAPA, especially considering the complex nature of terrorism-related cases. Strengthen legal assistance programs and ensure representation for vulnerable populations.
• Regular Review: Implement regular reviews for UAPA provisions to assess their effectiveness, relevance, and impact on civil liberties. This allows for continuous improvement and adaptation of the law in line with evolving security challenges.

Conclusion

• The Unlawful Activities (Prevention) Act (UAPA) plays a crucial role in countering terrorism but has faced criticism for potential misuse, lack of clear definitions, and stringent bail provisions. Reform efforts should focus on enhancing safeguards, ensuring judicial oversight, promoting transparency, and upholding human rights principles. A balanced approach is necessary to address security concerns while protecting fundamental freedoms and ensuring fair legal processes.

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Unlawful Activities (Prevention) Act (UAPA) 1967

Source:

The Hindu

Wikipedia