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The Need for a Firm but a Cautious Approach: UAPA 2019

Ranjana Singh

Terrorism is a serious threat to state security and its people, laws dealing with it should surely be stringent but cautious too respecting civil liberties and human rights of the denizens.

Erica Chenoweth (2006) conducted a cross national longitudinal analysis of 119 counties to find why are terrorist groups more prevalent in democracies than in non-democracies? Democratic countries keep their population open to foreign influences and thus are more prone particularly in this highly connected world. This probably informs the need of stringent anti terror laws in democratic countries all over the world.

In this light Home Minister, Amit Shah introduced the ‘The Unlawful Activities (Prevention) Act’ (UAPA) in August 2019 only to receive vehement opposition from many sections in the country; some blamed the government for assuming absolute power in itself while others called the act as draconian. The Act ever since it was introduced in 1967 has been criticized for being too stringent and against human rights. The aim as stated by the minister was to amend the existing Act with respect to ‘investigation and prosecution’ of the offences related to terrorism. The changes include prior approval by the Director General of Police for prosecution and the investigation to be lead by an NIA officer.

The UAPA Act 2019 empowered the state to charge individuals also as terrorists by expanding the definition of ‘who can be treated as terrorist’ and thus this became the central argument for opposition. It is important here to under the concept of ‘sleeping cells’ and the ‘lone-wolf terrorism’ which are lead and operated by random unidentified individuals and thus combating them demands more vigil and power to the state. The Act provides for a 4 level scrutiny of the accused but till the end of this scrutiny i.e. till the person isn’t proven innocent or guilty he or she’ll be considered as a terrorist. This Act labels the accused as criminal without even trial and conviction and thus was a grave attack on the dignity and reputation of a person. Secondly, procedure for appeal against the arrest and bail were contested too; a person can be kept detained without filling a charge sheet for about 180 days or till the investigation is over thus placing no compulsion on the police to produce evidences supporting the arrest. For a bail too, the court must be convinced that the arrested person is prima facie innocent of the crime he is charged with, it shows the dichotomy as the person is primarily arrested only on prima facie, being ‘believed’ to be involved in terrorism. Prima facie as against due conditions and evidences becomes the ground for both arrest and bail.

Actus non facit reum nisi mens sit rea’ i.e. an act in order to be a crime must be done with a guilty intention, is a traditional principle for determining a crime under both IPC and CrPC. The Home minister spoke about branding people as terrorist if they are ‘believed’ to have been involved in supporting; being a member of or associated with; funding any person or organization knowing it to be involved in terrorism; found in possession of material, text, literature etc objectionable in the eyes of officials, all of them to be called terrorists. These cases at times either don’t prove guilty act or guilty intent or neither of them but forms a crime. A person planting bombs and the one merely being associated to a group are both terrorist of the same sort. This reflects a disproportion between the crime and the punishment. The Act should not be a black hole to engulf almost any situation subjected to the discretion of the investigating official.

The National Criminal Record Bureau (NCRB) data reveals that by the end of the year 2016 about 22 out of 33 cases (67%) cases tried under the UAPA Act were acquitted or discharged, while in 2015, 65 out of 76 cases were acquitted after the trail. The percentage of pending cases under the UAPA Act was 97.8%, 94.2% and 97.4% in 2016, 2015 and 2014 respectively. The record after the 2019 amendment isn’t available; the trend of arrests and acquittal when only associations or organizations (which can be properly defined and defended) were subject to the Act shows that most of the charges were wrong. This leaves the possibility of individuals also going through such a trend and thus may inflict more injury to an individual as compared to a group.

The Act very well addresses the first part of the title ‘unlawful activities’ but what about the second half? What provisions are made for prevention of such activities? The Act only talks about the punitive actions but the government must inlay preventive policies also to support the Act. There have been many cases of incitement and glorification of terrorism and anti-state sentiments in last few years, within a fraction of second a video or audio gets viral causing most harm. Strategies to prevent such cases should have also been developed. A detailed list of ‘what are the unlawful activities or terrorist actsshould be provided to avoid perception among people of being targeted. Devoid of such clarity the arrested after acquittal remains filled with resentment against the state and may fall into the trap of fundamentalists. Provisions for handling indoctrination of young minds, regulating education, inspecting what is being taught clandestinely, preventing people from being influenced or approached from terrorist organization can be some preventive measures.

To handle terrorism it is important to decode its rise and escalation. Daniel Byman in his article ‘Terrorism and the Threat to Democracy’ did a comparative analysis of ‘causes of terrorism’ in nations like France, United Kingdom, United States of America and Denmark. He concluded that discriminatory and repressive practices by these states like the veil ban, immigration ban, job limitations, and restricted civil liberties acted as a cause of discontent in the Muslim community. Laqueur (1977) described such a tendency as ‘state terrorism’ or ‘terrorism from above’. Terrorism and social hostility between Muslims and non-Muslims created a dangerous circle to allow radicals score point with Muslims and find it easier to recruit terrorist. In Denmark, the publication of cartoons in 2005 mocking the Prophet Muhammad spread controversy for a decade and ultimately led to the Paris attack on Charlie Hebdo.

Terrorism is a serious threat to state security and its people, laws dealing with it should surely be stringent but cautious too respecting civil liberties and human rights of the denizens. The current Act being subjected to discretion and unclear creates a gulf between people and the government and this void should not be left to be filled by the radicals to cause more harm than gain. Until charges on an individual or group are proven they must not be labeled lest the guiding principle ‘Let a hundred guilty be acquitted, but one innocent should not be convicted’ gets reversed.

The author is research scholar in CSSEIP, BHU and is an intern at Academics4nation.



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