03rd Aug 2021
AUTHORS: VIDHIKA KAPOOR & SHUBH GOYAL
AFFILIATION: AMITY LAW SCHOOL, AMITY UNIVERSITY, NOIDA, UTTAR PRADESH.
Mahatma Gandhi once said that no one can force anyone to develop affection for the government and everyone has right to show their dissent and criticism against wrong ideologies and policies of government. It will be lead injustice in society and with public at large and more hatred with develop against ruling government. Right to protest and Freedom of speech are the rights guaranteed by law and however, the right to protest is not absolute. The Unlawful Activities (Prevention) Amendments Act, 2019 is one of recent amended acts that is facing a lot of criticism by activists. The Unlawful Activities (Prevention) Amendment Bill, 2019 was introduced in Lok Sabha by the Minister of Home Affairs, Mr. Amit Shah, on July 8, 2019. The Bill amends the Unlawful Activities (Prevention) Act, 1967. The Act provides special procedures to deal with terrorist activities among other things.
This bill is facing lot of criticism in recent times, under opinion of several protesters, this newly introduced bill tends to harm nationalism and is misused by government to take action against protesters and declare their protesting acts as terrorist acts because according to newly amend bill an induvial can also be declared as a terrorist. The Bill develop questions and doubts about national protests and terrorism activities and creates a thin blurred line anti national activities or protests and national activities or nationalism.
This Paper will Analyse the concept of Unlawful Activities (Prevention) Amendment Bill, 2019 and will put light upon the changes it brought in India. Moreover, this paper will explain all the amendments done under Unlawful Activities (Prevention) Act, 1996 and will also address the issues related to the Newly passed UAPA 2019 Bill.
Furthermore, this paper will concentrate on the analysing recent cases and judgements and will address the difference between Nationalism and terrorism in regard with Delhi Riots and recent controversies related to assumed protesting acts as terrorist acts and undertaking Delhi social cause activists under Judicial Custody by charging them under Unlawful activities (prevention) amendment act of 2019.
Rajya Sabha passed the Unlawful Amendment (prevention) Amendment Bill in August 2019. This act has been passes unanimously after the recommendation and appeal of Union Home Minister Amit Shah after several debates regarding the same Bill in The House. According to Union Home minister, Amit Shah this Bill was necessary to pass to send a strong message to the nation and world that India is doing it’s best to clean terrorism from the roots as terrorism is crime against humanity. 
Indeed, terrorism has no religion, faith and feeling of humanity and love. Certainly, tough law was required to clean terrorism and prevent further harm from terrorist but, not this cannot be done on the cost of seizing citizens Right to criticize government or protest against government for its wrong and unhealthy ideologies. However, freedom of speech can be restrained in some exceptional cases under Unlawful Activities Prevention Act, 1976. Even though, In the House of Parliament Union Home Minister Amit Shah guaranteed that no fundamental rights will be harmed, but in recent times after 2019 UAPA Amendment bill some cases of social activists came in notice who were young individuals protesting against recent citizenship amendments. According to Government, they were promoting strategies to harm public peace and planning some dangerous activities against nation so they were charged for initiating terrorist activities under Unlawful Activities (Prevention) Amendment Act.
Furthermore, in this bill, it was also added that terrorist acts are not only committed by organizations but by individuals. So, this bill will now consider organizations as well as individuals as terrorist.
“Declaring an organization as a terrorist unit organization will not put an end to the individual’s terror acts. Not designating individuals and if not taken action against individual terror act and consider them as terrorists, would give them an opportunity to circumvent the law of land and they would simply come back repeatedly under a different name and keep up their stake of terror activities.” – Amit Shah said. He further added that now the members of any terrorist organization will now be declared as terrorists and several countries amongst United Nations have already activated legal provisions for individuals as terrorist.
HISTORY OF UNLAWFUL ACTIVITIES (PREVENTION) ACT 1967- (UAPA)
The first UAPA Act was passed in the year 1967 on the recommendation of the National Integration Council after so much of discussions in the parliament and this proposal was also rejected twice in the parliament. The need of this act and the importance of this act came to know after 1962 China war and after 1965 Pakistan war. The need of this act was also arising to mark stop on the activities of the regional groups such as the Dravida Munnetra Kazhagam.
UAPA Act,1967 enables the government to impose reasonable restrictions on the fundamental right like on Freedom of Speech and Expression, right to Form Associations and Unions, right to Assemble peaceably and without arms.
This act was drafted in presence of the National Integration Council and the main agenda of this act was to control communalism, casteism and regionalism but not terrorism at that time.
But after the parliament attack of 2001, terrorist train attack of 2004 and 2008 Taj hotel attack and many more. After those amendments were made in the act like in year 2004,2008, 2013 and recently in 2019 and this act was made as the India’s main anti-terror law. Preceding this upgrading of UAPA, psychological oppressor exercises were essentially managed under the now cancelled Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and Prevention of Terrorism Act, 2002 (‘POTA’). Throughout the long term, various difficulties have been made to the protected legitimacy of both TADA and POTA.
CHANGES MADE IN UAPA ACT IN 2019
- Who can also additionally devote terrorism: Under the Act, the crucial authorities can also additionally designate an agency as a terrorist agency if it:
- commits or participates in acts of terrorism
- prepares for terrorism
- promotes terrorism
- is in any other case worried in terrorism?
The Bill moreover empowers the authorities to designate people as terrorists at the identical grounds.
- Approval for seizure of belongings via way of means of NIA: Under the Act, an investigating officer is needed to achieve the previous approval of the Director General of Police to capture homes that can be linked with terrorism. The Bill provides that if the research is performed via way of means of an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA might be required for seizure of such belongings.
- Investigation via way of means of NIA: Under the Act, research of instances can be performed via way of means of officials of the rank of Deputy Superintendent or Assistant Commissioner of Police or above. The Bill moreover empowers the officials of the NIA, of the rank of Inspector or above, to research instances.
- Insertion to agenda of treaties: The Act defines terrorist acts to encompass acts devoted inside the scope of any of the treaties indexed in an agenda to the Act. The Schedule lists 9 treaties, consisting of the Convention for the Suppression of Terrorist Bombings (1997), and the Convention in opposition to Taking of Hostages (1979). The Bill provides every other treaty to the list. This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).
POWER Of POLICE, NATIONAL INVISTAGATING AGENCY AND DIRECTOR GENERAL OF POLICE UNDER UAPA AMENDMENT BILL 2019
The Amendment apportions or issue forces to DG, NIA to connect properties obtained from procedures of illegal intimidation. On this issue, Shri Shah said that this law doesn’t remove forces of the state police. At the point when NIA takes up a case having worldwide and between state repercussions, the real factors as to pertinency to the case are with the NIA, and not with the state police. Presently, it is needed in the law that NIA take earlier authorization from the particular state DGP to append the returns of psychological warfare. This postpones the interaction as frequently such properties are in various states.
Prior, officials of positions DSP i.e., Director General Police or more rankers were engaged to explore cases which fall under UAPA according to Section 43. The Amendment tries to allow forces to officials with the position of reviewers or more to do likewise. Priest Believes that this would facilitate the circumstance assist with tackling the human asset mash in the NIA. The investigator rank officials have, over the long haul, procured adequate capability to research UAPA related cases. Another factor is that this is accepted to animate the conveyance of equity in UAPA related cases, which are explored by senior officials at different levels.
MAJOR ISSUES WITH UNLAWFUL ACTIVITIES (PREVENTION) BILL 2019
1. Criminalizing dissent
This newly amended UAPA act shifted from targeting organizations who promotes hatred to designating individuals as terrorists. In spite of the fact that these assignments exist, not a solitary Hindutva (Hindu fundamentalist) bunch is recorded, notwithstanding such associations having executed demonstrations that are without a doubt fear based oppressor. One might say, subsequently, that the 2012 UAPA Amendment has gained little headway in really countering illegal intimidation and has rather filled in as a legitimate and inescapable strategy to smother majority rule disagree.
Senior advocate and former president of the Supreme Court Bar Association, Dushyant Dave said that, “These arrangements strike at the actual idea of freedom and the right to life, which is secured under Article 21. The revised Section 35 gives the focal government the tact to name one and all as fear based oppressors.”
This act provides wide discretionary powers to centre by which the investigation agencies which are under them act in a biased manner and also secret courts are also made to use secret witnesses and to hold closed-door hearings.
- Undermines Human Rights Guarantees
This act does not have a definition for what comprises illegal intimidation. There were many arrests under this act which undermines human right guarantees like in case of Kashmiri author and journalist Masrat Zahra who were arrested under section 13 of the UAPA Act on the grounds uploading public posts on Facebook with criminal goals to incite the young and praising enemy of public exercises’ and Peerzada Ashiq for stories on ‘redirection of COVID testing units’ said that it “flags the specialists’ endeavour to control the right to opportunity of articulation. This act violates Article 21 of the constitution as the person who is arrested under this Act had to be incarnated upto 180 days without charge sheet being filed.
UAPA Act also gives power to the parliament to restrict the rights and freedoms of citizens to protect ‘the sovereignty and integrity of India’ and also this law can be used as a w can be utilized as a device against the resistance and assaults the actual significance of discourse in a majority rule government for the sake of safety.
3. MINORITIES TARGETTED
This act mainly attacks to the minorities and mainly to Muslim Communities. The UAPA changes got 2004, 2008, 2012 and 2019 reliably expanded the authority of the focal government notwithstanding a purportedly federalist setup. All recents arrest which were made under this act were mainly Muslims like Kashmiri journalist Gowhar Geelani, journalist Masrat Zahra, former Jawaharlal Nehru University student-activist Umar Khalid and two other students from Jamia University. The charges range from their affirmed “Maoist connections”, to posting “hostile to public” web-based media presents on “affecting” the new Delhi riots.Though in 1992 RSS itself had been announced unlawful under UAPA yet singular individuals were not captured on exclusively being a piece of the association.
Since the protected establishments of the Bill have all the earmarks of being powerless and undesirable for country, any test to its legality should offer the Indian legal executive a chance to stringently examine it and stroll down a similar way. The Unlawful Activities (Prevention) Amendment Bill, 2019 echoes laws made under the provincial system to squash the opportunity development and crucial rights in the request to garbing of guaranteeing public request. Unexpectedly, India’s constitution-producers had imagined an extraordinary job for its constitution to introduce a climate where social equality are ensured and not left helpless before chief matchless quality and despot power.
PETITIONS FOR THE OBJECTIONS TO THE CONSTITUTIONALITY OF UAPA BILL 2019
Sajal Awasthi has filed a Public Interest Litigation (PIL) in the Supreme Court, asking the court to declare UAPA, 2019 illegal since it infringes on fundamental human rights. He said it violated Articles 14 (right to equality), 19 (right to freedom of speech and expression), and 21 (right to life) of the Constitution by inadvertently restricting the right to dissent. Articles 14 (equality), 19 (freedom of speech and expression), and 21 (right to life) of the Indian Constitution were all violated. Furthermore, it does not provide the person accused of being a terrorist the opportunity to defend himself before being arrested. In addition, the petitioner said that:
“Right to Reputation is an integral element of [a] basic right to life with dignity under Article 21 of the Indian Constitution, therefore labelling/tagging an individual as a ‘terrorist’ before a trial or any application of judicial mind does not follow legal procedure.”
Another petition filed by the Association for the Protection of Civil Rights (APCR) claimed that the new Section 35 allows the Centre to designate an individual as a terrorist and add his name to Schedule 4 of the Act, whereas previously only organisations could be designated as terrorist organisations. The amendment does not establish the criteria for labelling someone a terrorist, just that “Conferring such arbitrary, unrestricted, and unbounded powers on the Central government is in direct contradiction to Article 14.”
Another example of the harsh UAPA occurred when the Delhi Police arrested Umar Khalid (a student leader at Jawaharlal Nehru University (JNU)) and Meeran Haider and Safoora Zargar (two other students from Jamia Millia Islamia (JMI) University). The JMI students were detained for allegedly plotting to foment community unrest over the CAA, which the police claimed was illegal.
Draconian laws are used by the government such as sedition and criminal defamation to silent those people who protest against them and fights for their rights. This UAPA Act imbalances fundamental freedoms because of its provisions and also this act used by a government as an instrument of mistreatment, making majority rule government its casualty. As there are many cases where journalists and activists are charged under this act for expressing their views against government.
At the point when such ghastly enactment abuses and removes the privileges of residents, it turns into the obligation of the Supreme Court to step in and reestablish confidence in vote based system. This Amendment mirrors the goal with which laws were made under the pioneer system to control a few opportunity developments under the cloak of guaranteeing public request. The Act fundamentally condemns follows up based on ‘belief system’ and ‘affiliation’. Along these lines, it very well may be seen that the above are the indications of moving from democracy to autocracy.
 The Unlawful Activities (Prevention) Amendment Bill, 2019.
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