The Author, Tanu Kapoor, is a 1st year student of Rajiv Gandhi National Law University, Punjab. She is currently interning with LatestLaws.com.
- What is Unlawful Activities Prevention Act (UAPA)?
The Unlawful Activities (Prevention) Act, 1967 aims at the effective prevention of unlawful activities across India and abroad. Its main objective was to provide powers to central agencies and states to deal with terrorist activities. Recently Rajya Sabha has cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 or anti-terror law.
2. What is the Extent and Application of this Act?
- It is applicable across the entire country.
- Any Indian or foreign national charged under UAPA is liable for punishment under this Act, irrespective of the location of crime / offense committed.
- UAPA will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.
- The provisions of this Act apply also to citizens of India and abroad.
- Persons on ships and aircrafts, registered in India, wherever they may be are also under the ambit of this act.
3. Definition of the Unlawful Activity in India:
Unlawful activity “refers any action taken by individual or association whether by committing an act or by words, either spoken or written, or by signs to questions, disclaims, disrupts or is intended to disrupt the territorial integrity and sovereignty of India.”
This act also prohibits 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 provoke any individual or group of individuals to bring about such cession or secession.
4. Whether this Act Check on Fundamental Rights?
The National Integration Council, the Constitution (16th Amendment) Act, 1963, has empowered Parliament to impose (by law) reasonable restrictions in the interests of sovereignty and integrity of India, on the;
1. Freedom of Speech and Expression.
2. Right to Form Associations or Unions.
3. Right to assemble peaceably and without arms.
5. What are the Famous arrest under the The Unlawful Activities (Prevention) Act, 1967?
1. BinayakSen, a doctor and human rights activist. He was detained for allegedly supporting the outlawed Naxalites in May 2007.
2. SudhirDhawale, Dalit rights worker, arrested in 2018
3. Mahesh Raut, tribal rights worker, arrested in 2018
4. VaravaraRao, poet, arrested in 2018
5. SurendraGadling, Dalit and tribal rights lawyer, arrested in 2018
6. ShomaSen, professor, arrested in 2018
7. SudhaBhardwa, tribal rights worker, arrested in 2018
8. Rona Wilson, research scholar, in 2018
9. GautamNavlakha, journalist and member of PUDR, in 2018
6. Define witness protection programme under the Act?
Section 44 gives discretionary power to the court to hold the proceeding of terrorist related trial in camera. The court on the application of witnesses or public prosecutor or suomotu may keep the identity of witnesses and his/her address secret if there is danger to the life of the witness. For keeping the identity and address of witnesses secret the court may undertake following measures- hold proceeding at such place as it deemed fit, avoiding mention of the name and address of witnesses in the order or judgment or any records which are accessible to the public, issue direction for non disclosure of identity and address, order that the proceeding shall not be published in any manner. Contravention of the court decision or direction towards keeping the identity and address of witnesses secret is punishable with imprisonment up to 3 years or fine or both.
7. What is the Role of Review Committee?
To prevent and combat terrorism the requirement of sound legislation with fair procedure for enforcement of anti-terrorist laws are necessary. Such legislative provisions are very harsh and are contrary to established criminal justice principle. Therefore, sufficient protection and check and balance to prevent any misuse of such stringent provisions must be present in the legislation itself. The UAPA Act provides the establishment of ‘review committee’ which is having restrictive role to play as compare to the provisions of POTA or National Security Act or COFEPOSA. Section 37 obligates the central government to establish one or more review committee for the purpose of De-notification of a terrorist organization. The committee shall consist of a chairperson who shall be a judge of a high court. It may have maximum of three members who is an officer not below the rank of secretary to the government of India and has one year of experience in legal affairs or administration of criminal justice. The Scope of power exercised by the review committee is limited to section 36 of UAPA i.e. De-notification of a terrorist organization. The committee can review the order of central government who have rejected the application of organization or affected person to remove an organization from the schedule list. The Committee may review the order of central government if it is of the opinion that the government was flawed in rejecting such application and the central government may remove the organization on the basis of the order of review committee.
The power of review committee extends to De-notification of terrorist organization and to review every order of the central government authorizing for interception of communication. It had power to make order and direction upon an application whether there is a prima fascia case for proceeding against the accused and if prima fascia case is not made out then the pending proceeding against the accused shall stand withdrawn from the date of such direction. Therefore, the POTA amendment 2003 empowered the review committee to even interfere in investigation and trial and its order was binding on the investigating officer and central/state government.
8. What is the Power of Investigating Authority and Designated Authority under UAPA?
Section 43 of the UAPA clarifies that is competent to investigate the offence of terrorism specified under chapter IV and VI of the Act. The Deputy Superintendent of Police (DSP) or police officer of equivalent rank shall investigate the offence of terrorism and in metropolitans areas it shall be investigated by a police officer not below the rank of Assistant Commissioner of Police (ACP). ‘Designated Authority’ means officer of Central government not below the rank of Joint Secretary to that of government and officer of state government not below the rank of Secretary to that government as notified by the respective government in his behalf.
9. What are the various punishments under UAPA Act?
- For Terrorist Act –
- Resulting in Death – punishable with death or imprisonment for life, and shall also liable to fine.
- In any other case – punishable with imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine.
- For Conspiracy -
Punishment of imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine;
- For Organising Terrorist Camps –
Punishable with imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine;
- For Recruiting of any person or persons for terrorist act –
Punishable with imprisonment for a term not less than 5 years which may extend to life imprisonment and shall also liable for fine;
- For Harbouring –
Punishable with imprisonment for a term not less than 3 years which may extend to life imprisonment and shall also liable for fine;
- For being a member of terrorist Gang –
Punishable with imprisonment for life and shall also liable for fine;
- For holding proceeds of terrorism –
Punishable with imprisonment for life and shall also liable for fine;
- For Threating Witness –
Punishable with imprisonment for a term not less than 3 years which may extend to life imprisonment and shall also liable for fine;
10. What are the Landmark cases in the UAPA Act?
- R.M Malkani vs. State of Maharashtra, AIR 1973 SC 157 wherein, taped telephonic conversation which was not obtained in accordance with the interception provision of the Telegraph Act was produced in evidence and relied upon by the Trial Court and High Court which was challenged before the Supreme Court. The court held that there is no bar in admitting relevant contemporaneous evidence even if it is obtained illegally. Supreme Court of India tried to remove the procedural anomaly in the People’s Union of Civil Liberties Vs. Union of India, AIR 1997 SC 568 and directed the Government to follow a specific modus operandi before proceeding with the interception of messages. However, alongside laying down the procedure in P.U.C.L case, the Supreme Court stressed upon the fact that “it is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded.”
- State of Maharashtra Vs. Bharat Shanti Lal Shah and others, (2008) 13 SCC 5 The Maharashtra Control of Organized Crime Act, 1999 has provisions for interception and safeguards for the same. These provisions and their safeguards similar to the directives laid down by the Supreme Court in PUCL’s case. The court observed that though the interception of communications is an invasion of an individual’s right to privacy, the right to privacy is not absolute, thus the court is required to see that the procedure itself is fair, just, and reasonable. Pursuant to the procedural safeguards formulated by the Supreme Court in the P.U.C.L case, the Central Government brought out an amendment to the Indian Telegraph Rules, 1951 but failed to remove unguided interception. To fill the procedural gap the interception powers laid out in the Information Technology Act were amended in 2008, and in 2009 the IT Procedure and Safeguards for Interception, Monitoring, and Decryption of Information Rules, 2009 (“IT Interception Rules”) were notified. The above two development has supplement the procedural lacuna of Unlawful Activities (Prevention) Act, 1967, 2004, 2008 and 2012 as far as the procedure for interception is concern. Even the National Investigation Agency may use the power of interception but only with the procedural safeguard which now included under the IT amendment 2008 and IT Interception Rules 2009.
Picture Source :