September 2,2018:
The Author, Mansimran Kaur is a 1st Year Student of BALLB, Chandigarh University.
Introduction
Constitutional amendments made with respect to Article 19 of the Indian Constitution which guarantees the Fundamental Freedoms of Expression and Assembly paved the way for making of the UAPA act.
The first amendment with respect to article 19 was made in the year 1951. As it was rightly stated by Dr. B.R. Ambedkar, ‘Fundamental Rights are the heart and soul of the Indian Constitution and the same was reflected in the judgements which considered the supremacy of the fundamental rights and declared that laws which violate the fundamental rights are ultra virus and held that the Fundamental Rights can be constrained in the most extreme cases.
However, at the same time a need was felt to impose certain limitations on these Fundamental Rights. Thus, Article 19 was first time amended with the addition of the word ‘reasonable’ before restrictions and ‘public order’ as another limitation were being imposed upon on it.
The next amendment responsible for shaping of the UAPA Act was the 16th constitutional amendment made in the year 1963. ‘Reasonable Restrictions in the interest of Sovereignty and Integrity of India’ were amended to Article 19 (2). Moreover, the defeat of the Indian Army in the Sino-Indian War and the threat posed by the DMK contesting elections in Tamil Nadu with secession from India being part of their manifesto gave more power to the thought of enactment of the UAPA Act on December 30th, 1967-to content the need of the Indian state to declare associations that sought secession from India as ‘Unlawful’.
Q1-What is the applicability of the UAPA Act?
Ans. Unlawful prevention Act extends to the whole of India. Every person is punishable under the act for every act or omission which is against the provisions of this act. Any person who commits an offence punishable under this act shall be dealt in the same manner as if such act has been committed in India. It applies to the citizens of India outside India, persons who are in the service of government irrespective of wherever they may be.
Q2-What is an unlawful association under the UAPA Act?
Ans. Any association involved in any activity which is punishable under section 153A or section 153B of the Indian Penal Code is termed as an unlawful association.
Q3-Who has been assigned the power under the UAPA act to declare an association as unlawful?
Ans. An association can be declared as unlawful by the Central Government by stating the grounds and notifying in the official Gazette. It may disclose only those facts which are deemed to be in the interest of public. However, the final call for confirming the allegations against an association is with the tribunal. In extraordinary circumstances the Central Government may state in writing to notify an association as unlawful with an immediate effect. The notification should be published in not less than one daily newspaper having circulation in the state.
Q4-What is a tribunal under the UAPA Act?
Ans. Central Government by notification in the official Gazette constitute as and when necessary a tribunal to be known as the “Unlawful Activities Prevention Tribunal” consisting of one person to be appointed by the Central Government and the person appointed should have served the High Court as a judge.
Q- What amounts to a terrorist act under the UAPA act?
Ans. Firstly, whoever does any act with the intention or likely to threaten the security, economic security, integrity, unity or sovereignty of India or has the intention to strike terror in the people or in any particular section of people in India or in any foreign country by the use of any explosive or inflammable substances, bombs, dynamites or other lethal weapons or poisonous or noxious gas or by any other substance which is hazardous in nature or of any nature that is likely to cause death or injury to any person or damage or destruction of property or disruption of any supplies or services essential to the life of the community in India or in any foreign country.
Q5-What is the punishment for committing an act which is terrorist in nature?
Ans. If such act has resulted in the death of a person, the accused will be punishable with either death or imprisonment for life and shall also be liable to fine. In any other case, the accused shall be punishable for an imprisonment of not less than five years but may extend to imprisonment for life and shall also be liable to fine.
Q6-What is the process of Denotification of an organisation which is declared as a terrorist organisation?
Ans. Firstly, an application is to be made to the Central Government. It can be made by the organisation or by the person affected by the inclusion of the organisation in the Schedule as a terrorist organisation. In case of the rejection of the application by the Central Government, the applicant may apply the application to the Review Committee constituted by the Central Government for the purpose of reviewing it. If the review Committee accepts the application and then orders for the removal of the organisation, the same is to be considered by the Central Government and as per the orders of the Review Committee the organisation is to be removed.
Q7-Who constitutes a review committee?
Ans. A review committee is comprised of a Chairperson and three other members and possessing qualifications as deemed to be necessary by the act. The chairperson should have served as a judge of a High court or should be serving as one and in the case of appointment of a sitting Judge, the concurrence of the Chief Justice of the concerned High court should be obtained.
Q8-What are the penalties charged against a person for being a member of an unlawful association?
Ans. A person who is or continues to be a part of an unlawful association or gets himself involved in the meetings of the association or in any way encourages or promotes the objectives of the association is punishable for a term which may extend to two year and may be also liable to fine and if the person helps in the functioning of the association and is in possession of any unlicensed firearms or ammunition, explosive or any such other instrument or substance which is capable of causing mass destruction is punishable with imprisonment for a term not less than five years and is also liable to fine.
Q9-What is the criticism faced by the UAPA Act and why it should be repealed?
The 2004 Amendment
Ans. All hue and cries about the misuse of the Prevention of the Terrorism Act lead to its repealtion but at the same time some major amendments were made in the UAPA Act. The definition of the ‘Terrorist Act’ and ‘Terrorist Organisation’ repealed from the POTA were included within the definition of the ‘unlawful activity’ under the UAPA ACT.
Indeed, the chapters IV, V, VI of the UAPA act are borrowed from repealed POTA. A sunset clause that was earlier part of the so-called anti-terror acts like Terrorist and Disruptive Activities and POTA was done away with. In no way can the exclusion of the sunset clause be justified on the ground that restriction to fundamental rights is reasonable given in the extraordinary threat of terrorism.
The obscure amendments made in the year 2008 and 2012
On December 17th, 2008 another amendment was moved and adopted following the attack by armed gunmen in Mumbai on November 26th, 2008. More provisions similar to POTA and TADA regarding maximum period in police custody, incarceration without a charge sheet and restrictions on bail were incorporated into the UAPA. Furthermore, the 2012 amendment broadened the already unclear definition of the ‘Terrorist Act’ to include offences that threaten the country’s economic security.
Stringent Provisions of the UAPA Act
Alike TADA and POTA, UAPA also criminalises ideology and association. The loophole is that by declaring an organisation as “unlawful” or “terrorist” and banning it, 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 interpreted as an offence. Thus, by this very logic organisations which are just advocating the rights of a certain community or that of an oppressed class are easily posed as unlawful organisations.
Secondly, the obscure definition of terrorism includes a wide range of non-violent political activity, including political arrest. Furthermore, it allows detention up to 180 days and police custody can be up to 30 days. In addition, the authorises the creation of special courts with wide discretionary powers to hold-in camera proceedings and use secret witnesses but contains no sunset clause and provisions for mandatory periodic review.
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