The repeal of POTA was indeed an eye-wash.
Soon after its adoption, the Constitution of India was amended in 1951. At the time, several progressive judgments (Romesh Thapar versus the State of Madras, 1950; VG Row versus the State of Madras, 1950; and the AK Gopalan case, 1950) by the judiciary held that laws which curb fundamental rights are essentially unconstitutional and fundamental freedoms could only be curbed in the most extreme of cases.
The First Amendment countered this by amending Article 19 to add the word “reasonable” before restrictions and to add “public order” as being one more ground for abridging fundamental rights.
The evolution of the Unlawful Activities (Prevention) Act (UAPA) has to be seen in the background of this gradual but steady constriction of Article 19 which guarantees the fundamental freedoms of expression, assembly, association, etc.
The UAPA, 1967
The next major step in the abridgement of freedom of expression, assembly and association occurred in the shape of the 16th Amendment in 1963. Further “reasonable restrictions in the interest of the sovereignty and integrity of India” were amended to Article 19 (2).
This amendment occurred in the immediate wake of the Indian Army’s defeat in the Sino-Indian War, as well as the threat posed by DMK’s contesting elections in Tamil Nadu with secession from India being part of their manifesto.
It was in this background that UAPA was enacted on December 30, 1967 – to satisfy the need of the Indian State to declare associations that sought secession from India as “unlawful”. In this way, UAPA 1967 gave powers to the central government to impose all-India bans on associations.
The process of banning associations could simply be done by the government announcing them as “unlawful” and hence banned (Section 3). Though the original 1967 Act too had provisions for a tribunal to review or to hear an appeal against the ban, this remained a mere farce as seen in the case of Students Islamic Movement of India (SIMI).
In 2004, amid public outcry against the misuse of POTA (Prevention of Terrorism Act), the government repealed the Act but majorly amended the 1967 version of UAPA at the same time. The repeal of POTA was an election promise of the then newly elected Congress government.
The amended UAPA made substantial changes to the definition of “unlawful activity”, included the definition of “terrorist act”, “terrorist organisation” from the repealed POTA, and also introduced the concept of a “terrorist gang”. In fact Chapters IV, V and VI dealing with “punishment for terrorist activities”, “forfeiture of proceeds of terrorism” and “terrorist organisations” respectively, were heavily borrowed from the repealed POTA. The Schedule to the POTA Act of “terrorist organisations” too was incorporated into UAPA verbatim. A sunset clause that was earlier part of so-called anti-terror acts like TADA and POTA was done away with.
Even if one were to buy the “desperate times call for desperate measures” logic, where a restriction to fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA.
In fact, the justification to the inclusion of a sunset clause in previous extra ordinary acts like TADA is that when there is a drop in the perceived threat, there would be no need of the legislation.
2008 and 2012 Amendments
On December 17, 2008, another amendment of the UAPA was moved and adopted following the attack by armed gunmen in Mumbai on November 26, 2008. More provisions similar to POTA and TADA regarding maximum period in police custody, incarceration without charge-sheet and restrictions on bail were incorporated into the UAPA.
The 2012 amendments to the Act further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.
What is a crime and who is a criminal?
Like earlier anti-terror laws such as TADA and POTA, UAPA too, criminalises ideology and association. By virtue of declaring an organisation “unlawful” or/and “terrorist” and banning them, these Acts have de facto criminalised their ideologies.
Hence, mere possession of any literature of such an organisation or even upholding an ideology common to that organisation in the absence of any violent act is construed as an offence. On the other hand, mere membership or association with such an organisation too becomes an offence.
It is by this logic, that very often, organisations advocating the rights of a certain minority community or that of oppressed sections are easily labelled as fronts of a proscribed organisation under the Schedule of the Act. Their activists or members get arrested and remain in prison for years, denied bail.
Repeal of UAPA
If UAPA 1967 made anti-secession law a permanent requirement, UAPA 2004 made anti-terror law permanent. After it effectively substituted POTA in 2004, the UAPA has been used by all law enforcement agencies throughout the country as the foremost anti-terror law. The repeal of POTA was indeed an eye-wash.
(Many states have their own anti-terror laws, such as Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Chhattisgarh Special Public Security Act, 2005 (CSPSA), Jammu and Kashmir Public Safety Act, 1978; Andhra Pradesh Public Security Act, 1992, etc. These local laws are sometimes as draconian if not more, and are used by state prosecution agencies in addition to UAPA.)
In the absence of any sunset clause or provisions for mandatory periodic review, the repeal of UAPA will depend on a mass movement. However, merely mentioning its misuse or low conviction rate may eventually lead to another eyewash, as in 2004.
A movement against UAPA should hence clearly stand for its repeal and that of all other state anti-terror laws with similar provisions.
Draconian provisions of UAPA in a nutshell
– The Act introduces a vague definition of terrorism to encompass a wide range of non-violent political activity including political protest.
– The Act empowers the government to declare an organisation as “terrorist” and ban it. Mere membership of such a proscribed organisation itself becomes a criminal offence.
– The Act allows detention without filing of a charge-sheet for up to 180 days, police custody can be up to 30 days.
– The Act creates a strong presumption against bail and anticipatory bail is out of the question. It creates a presumption of guilt for terrorism offences merely based on the evidence allegedly seized.
– The Act authorises the creation of special courts, with wide discretion to hold in-camera proceedings (closed-door hearings) and uses secret witnesses.
– The Act contains no sunset clause and provisions for mandatory periodic review.
By Arun Ferreira and Vernon Gonsalves