JUST, FAIR AND REASONABLE: A CRITIQUE OF UNLAWFUL ACTIVITIES PREVENTION ACT

Aimed at the prevention of unlawful activities of associations in India, the Unlawful Activities Prevention Act, 1967 (the Act) was enacted with the objective of dealing with activities that were directed against the integrity and sovereignty of India. 

However, having been modified through stringent amendments, it has taken a harsher form than what was originally contemplated for it. In this article, we will be exploring the reasoning behind the same infamous connotation of this special national law that often makes its name echo within the four walls of the Court.

This article is broadly divided into three parts. The first part critically analyses the ineluctable issues associated with the Act. The second part highlights the number of cases registered under it and the pattern in which the police and the court had disposed of the same. And, the third part unfolds recent judicial pronouncements that signal a progressive way forward.

   I.    QUESTIONABLE PROVISIONS 

  A.    Open-ended wording

Firstly, the open-ended wording of the Act leaves a wide room for its arbitrary implementation. For instance, Section 15 of the Act, as added by its amendment in 2008, defines a “Terrorist Act”, as vaguely as “likely to threaten”, “likely to strike terror”, “by any other means of whatever nature to cause or likely to cause”, “does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act”.

By giving such a highly consequential term an unrestrained interpretation, the Act’s definition of a terrorist act substantially departs from that promoted by the United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, which reasonably precludes a cumulative presence of three key elements, “the means used must be deadly; the intent behind the act must be to cause fear amongst the population or to compel a government or international organisation to do or refrain from doing something, and the aim must be to further an ideological goal.”

Also, Section 15 (2) read with Schedule II of the Act, further expands the interpretation of a terrorist act by involving all the definitions mentioned in ten comprehensive treaties that are ratified by India.

Such a phenomenal vagueness in an exceptionally severe law that curtails an individual’s fundamental rights makes us recall the case of K.A. Abbas v. Union of India, in which the Apex Court clearly stated that a vague law that affects fundamental rights is bad.

This was further emphasised in the landmark judgment of Shreya Singhal v. Union of India, in which the Supreme Court struck down Section 66A of India’s Information Technology Act because it failed to define the criminal offence with sufficient definiteness. It is relevant that such open-endedness in the Act’s description of a terrorist act has a firm potential to impose an unreasonable restraint on Article 19 (1) (a) of the Indian Constitution, which confers on every citizen the right to freedom of speech and expression. Thus, in order to preserve a citizen’s right to freedom of speech and expression as guaranteed under the Indian Constitution, it is important that the Act should be amended to signify a clear and precise definition of a terrorist act.

Otherwise, arbitrary implementation of this stringent provision shall unreasonably curtail individuals’ human rights, recalling the judgment of the highest court in PUCL v. Union of India, which held that the violation of human rights, in the process of combating terrorism, is a crucial factor to render the very process of combating terrorism futile.

    B.   Reversed presumption of innocence

Secondly, Section 43 E acts as a double-edged sword for the people charged Section 15 of the Act. Against the rules of The Code of Criminal Procedure, 1973 (the Code) and the Indian Evidence Act, 1872, this section poses a presumption of guilt on the accused, thereby putting the burden on an accused to prove that they are innocent, instead of requiring the State to prove the accused’s guilt.

Pertinently, it is not only the Code and The Indian Evidence Act that this provision violates. Article 20 (3) of the Indian Constitution states that “No person accused of an offence shall be compelled to be a witness against himself”. In other words, it guarantees a person’s right to silence, which in all criminal trials, as elucidated by the 180th Report of the Law Commission of India on ‘Article 20(3) of the Constitution of India and the Right to Silence’, puts the burden on the State or the prosecution to prove that the accused is guilty, meaning that an accused is presumed to be innocent till he is proved to be guilty.

Further, Article 11 of the Universal Declaration of Human Rights says that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to the law in a public trial, at which he has had all the guarantees necessary for his defence.” Moreover, Article 14(2) of International Covenant on Civil and Political Rights and Article 6(2) of The European Convention for the Protection of Human Rights and Fundamental Freedoms state that “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” 

Even The National Human Right’s Commission has opined that “Breaching fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times.”

Thus, we notice how such a reversed presumption of innocence enforced by the Act violates the Indian Constitution, India’s national laws, important international laws that India ordinarily abides by, and the fundamental principle on which criminal law jurisprudence is based.

     C.   Lack of substantive and procedural due process

Thirdly, as per Section 35 and Section 36 of the Act, the Central Government can add or remove the name of individuals and organisations in Schedule I and Schedule IV, respectively, “if it believes that such organisation or individual is involved in terrorism.” Importantly, this can be “believed” so in any way the Central Government deems fit, as suggested by the open-ended wording of Section 35 (3) (d).

It is vital to note that Article 21 of the Indian Constitution grants a fundamental right to life and liberty, states that the liberty of a person cannot be taken away except by a procedure established by the law. Further, in the landmark judgment of Maneka Gandhi v. The Union of India, the Apex Court, while interpreting Article 21, held that such a “procedure established by law” must be “just, fair and reasonable”, which precludes an interrelation between Article 14, 19 and 21, popularly known as the “Golden Triangle test”, providing that a law depriving a person of “personal liberty” does not only need to stand the test of Article 21, but it needs to stand the test of Article 14 and Article 19 of the Constitution, as well.

Clearly, in the absence of a rational basis on which the Government can classify individuals and organisations as terrorists, these provisions of the Act do not fulfil the measures laid down in Maneka Gandhi. They also do not pass the test of legality and proportionality as laid down by Justice Chandrachud in the landmark case of K.S. Puttuswamy v. Union of India. In this case, the Apex Court recognized the right to privacy as an integral part of Article 21 of the Constitution, thereby holding the right to be let alone as a reflection of the inviolable nature of the human personality. On that note, such profiling by the Executive under Section 35 of the Act violates Article 21, as it infringes upon the personal autonomy of an individual without substantive and procedural due process.

Additionally, in Union of India v. Tulsiram Patel, the Supreme Court held that lack of fair hearing violates the principle of natural justice, audi alteram partem or the rule of fair hearing, thereby resulting in arbitrariness and violating Article 14 of the Indian Constitution. It must be noted that since the Act allows the Executive to add names of individuals and organisations without giving them a notice or/and an opportunity to be heard, such an arbitrary provision violates the principle of fair hearing and Article 14 of the Indian Constitution.

Moreover, under Section 37, the same Central Government that labels individuals and organizations as terrorists is bestowed with the substantial power of setting up a Review Committee, which is an appellate mechanism under the Act for determining a person’s guilt after the Central Government classifies them to be terrorists. Thus, it evidently violates the sacrosanct principle of Separation of Power, allowing executive supremacy over constitutional supremacy, and eliminates the scope of checks and balances necessary in a constitutional democracy. Seeing that adjudication is the function of the Judiciary, such undue interference by the Executive in Judiciary’s function is a violation of Article 50 of the Indian Constitution.

As delineated by the petitioners in Sajal Awasthi v. Union of India, these provisions of the Act give arbitrary power to the government to target voices of dissent and opposition.

     D.   Arbitrary arrest mechanism

Fourthly, as per Section 43 A of the Act, a designated authority can make an arrest and search a place when it “has reason to believe from personal knowledge or information given by any person”, “or from any document, article or any other thing”. While these factors are manifestly insufficient for a person to be booked under such a rigorous law, to make it worse, the arresting officer is mandated to inform the suspect of the charge against them only “as soon as maybe”. It is noteworthy that the Supreme Court, in the landmark judgment of Joginder Kumar v. State of U.P., held that “No arrest can be made because it is lawful for the police officer or the government to do so. The existence of the power of arrest is one thing and the justification for the exercise of such power is quite another.” The Act violates this precedent laid down by the Supreme Court, as it exempts the government from giving any reasonable justification for an individual’s arrest. 

Also, Section 43 of the Act poses a substantial departure from the important guidelines required to be followed while making arrests, as laid down by the Apex Court in the landmark case of  D.K. Basu v. State of West Bengal.

     E.   Issue of bail

Fifthly, upon such a potentially arbitrary arrest, a person is not even granted the constitutional right to bail, as reinforced by important judicial pronouncements over the decades.

As per Section 43 of the Act, which eliminates the applicability of the Code, a person arrested under this Act ceases the right to be granted bail within ninety days. Appositely, as per the Code, “ninety days” is the maximum period a person can be held in custody. And, according to international standards, it is an unusually high bar. However, a person arrested under this Act can continue to be held in custody for 180 days, if the investigation is not completed by the Police within ninety days, and it requests the Court to grant another ninety days to complete the same. Quite disturbingly, a person under this special law can be detained even beyond an extraordinarily long period of 180 days, “if the Court, on a perusal of the case diary or the report made under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

Additionally, as per Section 43 D (4) of the Act, upon the apprehension of arrest, a person cannot apply even for anticipatory bail, which is a natural remedy for non-bailable offences granted under Section 438 of the Code.

     F.   Absence of legal recourse to tackle malicious prosecution

Lastly, Section 49 of the Act grants blanket immunity to Central Government, State Government, District Magistrate, any authority authorised by the three of them, any serving or retired member of the armed forces or para-military forces, and any other authority on whom powers have been conferred under this Act, for their acts done in good faith and directed towards combating terrorism. 

Consequently, an individual who has been illegally detained and kept in custody for several years before going to trial, or before the trial being disposed of due to lack of evidence, or before the Court finally acquitting such an individual as a result of lack of sufficient evidence, has absolutely no legal recourse to seek compensation or combat impunity.

It is relevant that an open letter written by the Constitutional Conduct Group (CCG), and endorsed by 108 civil servants, states that the Act has “many flaws and loopholes making it amenable to large scale abuse and misuse by some politicians and overzealous policemen”.

Thus, upon a thorough analysis of the unbalanced provisions of the Act, we unfold its thriving potential to curb dissent and promote fear among such concerned citizens who tend to openly criticise the Government’s actions, especially on areas that significantly affect the Indian Republic comprising of the people, for the people and by the people.

    II.   NCRB’S REPORT ON ‘CRIME IN INDIA 2020’

On September 16, 2021, National Crime Records Bureau released its annual report on ‘Crimes in India’. Under Chapter 10A of the Report, dealing with ‘Offences against the State’, we find a total of 4827 active cases registered under the Act, of which 796 cases were registered in the year 2020, entailing a vast number of 4021 cases pending from previous years.

A.   Disposal of cases by the police 

While 726 cases, including 272 cases from previous years, were investigated by the police in 2020, the police charge-sheeted only 398 cases. This anomaly is well explained by two factors. Firstly, 297 out of aforesaid 726 cases were disposed of by the police due to “lack of sufficient or traced evidence”. Secondly, while 14 cases opened under the Act were closed by being categorised as “Mistake of Fact, or Mistake of Law, or Civil Disputes”, 10 cases turned out to be false on the basis of the final report of the investigation.

While these statistics showcase a lack of reason preceding arbitrary arrests, a dismal charge-sheeting rate of 54.8 percent is still tolerable when compared to a starkly disappointing pendency rate of 85 per cent at the investigation stage.

B.   Disposal of cases by the court

As per NCRB’s data, out of 4827 active cases registered under the Act, so far, 2642 cases have been sent to trial, out of which 398 cases were sent to trial in 2020. It is noteworthy that out of 128 cases in which trial was completed, only 27 cases led to convictions, highlighting a considerable number of 99 cases that led to acquittals, and 14 cases that the Court, dissatisfied with the evidence, disposed of without even a trial. 

With a shallow conviction rate of a mere 21.09 per cent and a shocking pendency rate of 94.6 per cent at the stage of a trial, as paladins of human rights, it makes us mull over the rights of thousands of under-trial prisoners booked in those 2500 cases that are still pending trial. Awaiting the completion of their trial for ages, their situation is better than only those under-trial prisoners who have been stuck at the very stage of investigation for half a decade, if not more, considering that it was only as early as 2016 that NCRB started publishing the figures of UAPA arrests. 

In Hussainara Khatoon v. Home Secretary, State of Bihar, which is often recalled to have given birth to ‘the right to a speedy trial’, the Court had observed that several under-trial prisoners spent a longer time in prisons than half of the maximum punishment of a crime for which they could be convicted.  Here, the Court had directed the government to appoint lawyers for such under-trials, and file bail applications for them. It was after similar cases that S.436 A of the Code was added in 2005. It states that if an accused has already spent half of the maximum period of punishment specified for an offence, they have to be released on bail. 

However, thanks to the alternate criminal justice system that the Act adopts, this section does not apply to it.

     C.   Recent Examples of poor disposal

We recall the plight of Mohammad Irfan Gaus and Ilyas Mohammad Akbar, who were charged under the Act, and spent almost nine years in jail. During this time, their bail applications were rejected four times. Finally, the NIA court, citing lack of evidence, acquitted both of them on June 13, 2021. 

Similarly, Mohammad Habeeb was incarcerated for four years under UAPA terror charges until June 14, 2021, when the NIA court at Bengaluru discharged him. Remarkably, it took the special court 4 years to conclude that the only evidence against him was an inadmissible statement of a co-accused.

Not to mention the distress of Bashir Ahmed Baba from Kashmir, who had to spend 11 years in a Vadodara jail until June 19, 2021, when the special court held that no evidence was found to prove his links with terrorist elements. The court noted that the UAPA charges against him were absolutely unfounded and that the prosecution relied on emotional arguments

Unfortunately, Father Stan, a Jesuit priest and a Tribal rights activist based in Jharkhand could not attain the same mercy preceding his unfortunate demise on July 5, 2021. He had to spend nine months in custody after a few links allegedly connected him to the Bhima Koregaon case. Despite this 84-year-old suffering from Parkinson’s disease, and on multiple occasions requesting bail on medical grounds, he was not granted the same. After dedicating over three decades of his altruistic life to resolve Adivasi communities’ issues on land, forest and labour rights, etc., the poor soul finally succumbed to the Act’s severe provisions.

 III.   A RAY OF HOPE

Having looked at some drastic provisions of this special national law, and its arbitrary implementation, let us understand the role that the Indian Judiciary has recently played in securing civil liberties, as hampered by the Legislature and the Executive.

On February 1, 2020, in Union of India v KA Najeeb, where the accused had spent almost five years in prison, out of a maximum of 8-10 for which he could potentially get convicted, the Supreme Court held that any constitutional court has the power to grant bail to people accused of offences under the Act, irrespective of Section 43 D (5), to enforce the right to a speedy trial which is guaranteed under Article 21 of the Constitution.

On June 15, 2021, in Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court held that the police relied on inferences and conjectures to build its case, and failed to show its accusations prima facie true. The highest court added that the courts should not wait for the accused’s rights to a speedy trial to get entirely vitiated before they are set at liberty.

On June 16, 2021, in Muzammil Pasha v National Investigating Agency, the Karnataka High Court granted default bail to 115 persons charged under the Act. While setting aside the order of the Special Court extending the time granted for filing charge-sheet, a Bench of Justice S Vishwajith Shetty stated that since the petitioners were neither given an opportunity of being heard before passing of the said order nor kept present before the court during prosecution’s application for extension of time for completion of the investigation, the said order passed by the Trial Court was legally unsustainable. In stating so, the High Court reaffirmed the position of the Apex Court in the case of Hitendra Thakur & Ors. v. State of Maharashtra & Ors., and Sanjay Dutt v. State Through C.B.I., Bombay.

Recently, on September 7, 2021, in Sadique and Ors v. State of Madhya Pradesh, the Apex Court clarified the connotation of Section 43 D (2) (b) of the Act. As the Court allowed the bail application of the appellant, overruling the Madhya Pradesh High Court’s judgment that upheld the order of Chief Judicial Magistrate of Bhopal, vis-à-vis extension of investigation period under the Act from 90 days to 180 days, it emphasised the fact that “so far as all offences under the UAPA are concerned, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43 D (2) (b) is non-existent.”

In holding so, the Court relied on the sound reasoning advanced in Bikramjit Singh v. State of Punjab. In this case, it was decided how the National Investigation Agency Act, 2008, did away with the earlier distinction between offences having below seven years of imprisonment as their maximum imprisonment and offences having seven years or above as their maximum imprisonment. Earlier, while the former kind of offences under the Act was triable by Magistrate’s Courts, the trial of the latter category was reserved for the Courts of Session. However, with the passing of the NIA Act, 2008, regardless of their term of maximum imprisonment, offences “are to be tried exclusively by Special Courts set up under that Act.” And, considering that the Central Government or the State Government has not notified of any “designated court”, the Apex Court noted that the power to extend the term of investigation period under Section 43 D lies on Sessions Court alone.

Keeping in mind the jurisprudence laid down in the case above, in Sadique and Ors v. State of Madhya Pradesh, not only did the Supreme Court hold the appellants entitled to the relief of default bail, but also directed the trial court to complete the proceedings at the earliest, since the case had already progressed to a considerable length.

While such progressive verdicts of the Supreme Court continue to reinforce its reputation as the Guardian of the Constitution, it remains a long and hard battle to be fought between this undemocratic legislation and the democratic tenets that independent India is built upon. In this battle, as champions of Constitutional and Human rights, it becomes our responsibility to engage in such developments that considerably affect the pillars of our Constitutional Democracy.

Authored by: Rishabh Bhandari has completed his graduation from National Law University Lucknow, and specialises in Constitutional Law. 
His work analyses such grey areas of law that intersect with human rights.