UAPA: Vague Definitions and Sweeping Powers

The Unlawful Activities (Prevention) Act, 1967 (UAPA) has been consistently been in the cross-hairs of human rights and civil liberties defenders since its inception in 1967. This legislation was enacted to be “an Act to provide for the more effective prevention of certain unlawful activities of individuals and associations, [and for dealing with terrorist activities,] and for matters connected therewith”. This means that this legislation seeks to 'prevent' unlawful and terrorist activities. This becomes apparent in the definition clauses, as 'likelihood' is reason enough to invoke the Act.

Also See: “India’s Democracy As Bad As Dictatorship With Draconian Laws Like UAPA” 

Section 2(o) of the Act defines 'unlawful activity' as any activity undertaken by an individual or an organisation, 

“(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection against India;”.
From this definition, it is clear that the definition is aimed primarily towards secession. However, clause (ii) places even 'disclaiming' and 'questioning' in the bracket of an unlawful activity. Perhaps, 'incitement' could have been used in this context.

This becomes apparent when one looks at the judicial history of the Act.

Also See: Arrest of 5 Activists Using UAPA Another Attempt to Silence Dissidents?

Section 3 of the Act empowers the government to declare an association as 'unlawful'. This entails a process of notifying the organisation in the Official Gazette along with the reasons for doing so. Chapter III of the Act lists the offences and prescribes their punishments. Being a member of an unlawful association will attract life imprisonment, the death penalty and a fine. Dealing with funds of an unlawful organisation will attract three-year imprisonment and a fine. The punishment for an unlawful activity, depending on the nature of the activity can vary from five to seven years of imprisonment and a fine.

Chapter IV deals with the terrorist activities. Section 15 defines a terrorist act as one committed with an intention to threaten or likely to threaten the unity, integrity, security (including economic security), or sovereignty of India. The definition also includes an act done with the intention to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country. In both instances, the likelihood of the outcome is placed at the same level of the actual act and its outcome. The rest of the section describes the manner in which these outcomes are to be achieved, such as criminal intimidation, bombing, kidnapping and high quality counterfeit Indian paper currency among others.

The punishment for a terrorist act is laid down in section 16 where in the case of death, it will attract the death penalty or the life imprisonment with a fine. In other instances, it is five years to life or with a fine. This chapter also penalises; raising funds, conspiracy, organising terrorist camps, recruitment, harbouring, membership, holding proceeds and threatening witnesses.

What appears at this point is that the definitions are vague even though the offences and penalties are quite specific. However, since the offences are dependent on the definition clauses, in effect, they too suffer from vagueness. The procedural aspects of the Act is another issue.

Section 43D of the Act modifies the application of section 167 of the Code of Criminal Procedure, 1973 (CrPC). This is apart from the fact that the CrPC is subordinate to the UAPA. Under the CrPC, when an investigation cannot be completed within 24 hours, the investigating officer is expected to produce the accused before a magistrate who will then remand the accused for 15 days. When the offence attracts the death penalty or life imprisonment, the accused can be remanded for 90 days, and in other circumstances, for 60 days. In the UAPA, the 15-day limit is done away with. In its place, the accused has to languish in custody for a minimum of 30 days, which can be extended to 90 days. However, in the UAPA, in case the investigation is not completed within 90 days, the Court may remand the person for 180 days.

Also See: Urban Naxalism: A Garb to Suppress Dissent and Resistance?

The same section also restricts the application for bail. For example, an accused cannot be granted bail – which numerous case laws have called a right – unless the special public prosecutor is heard. Further, bail can be denied if the case diary makes the Court believe that the case is prima facie true. The case diary is compiled by the investigating officer, hence it will inevitably be the State's account of the case. In effect, this provision disenfranchises the accused's ability to challenge the State's narrative of the case. Thus, the right to be heard is curtailed. Coupled with section 48, which  is contrary to the provisions in the Indian Evidence Act, 1872,which allows intercepted communication to be presented as evidence, the basic flaws of the UAPA should be evident.

The definitions are wide and vague, and by extension, the offences too are vague, since they depend on the definitions. Further, wide powers of detention are extended to the executive while judicial oversight is limited. What is also striking is that these vague definitions and offences are even extended to mere 'likelihood'. The combination of these two aspects make for a legislation whose abuse can always be written off in the name of 'national security'. National security in India is a political term, as it has not been adequately defined either by a Court or by the Parliament.

Also Read: Human Rights Activists, Writers Taken into Custody Across the Country