Of the 796 UAPA cases registered in the country in 2020, the maximum were from J&K (287)

The Unlawful Activities (Prevention) Act, 1967, has its origin deeply rooted in the draconian colonial laws that were enacted by the British Government in India, to crack down on the nationalist sentiments of the Indian populace.
The evolution of Unlawful Activities (prevention) Act (UAPA) has to be seen in the background of a gradual but steady constriction of Article 19, which guarantees the fundamental freedoms of expression, assembly and association. A major step in the abridgement of freedom of expression, assembly and association occurred in shape of the 16th amendment in 1963. Further ‘reasonable restrictions in the interest of the sovereignty and integrity of India’ were amended to Article 19 (2). This amendment occurred in the immediate wake of the Indian army’s defeat in the Sino-Indian War, as well as the threat posed by the DMK contesting elections in Tamil Nadu with secession from India being a momentous part of their manifesto. It was in this background that the UAPA was enacted on December 30, 1967, to satisfy the need of the Indian state to declare associations that sought secession from India as “unlawful”.
In this way, the UAPA gave powers to the central government to impose all-India bans on associations. The process of banning associations could simply be done by the government announcing them as “unlawful” under section 3 of the Act. Again in 2004, amidst the public convulsion against the misuse of Prevention of Terrorism Act (POTA), the government of that time (Congress) repealed the POTA, fulfilling their election promise. But at the same time, all those provisions rescinded in the form of POTA were successfully indemnified in the then major amendments made to the UAPA. Substantial changes were made to UAPA such as changes in the definition of “unlawful activities”, inclusion of the definitions of “terrorist act” and “terrorist organisation” from the repealed POTA, and also introduction of the concept of a “terrorist gang”. In fact, chapters IV, V and VI dealing with “punishment for terrorist activities”, “forfeiture of proceeds of terrorism” and “terrorist organisations” respectively, were heavily borrowed from the repealed POTA. The schedule to the POTA related to “terrorist organisations” was also incorporated into the UAPA verbatim, and most importantly the “sunset clause” that was earlier a part of so-called anti-terror Acts like Terrorist and Disruptive Activities (TADA) and POTA was done away with in the amended UAPA.
Even if one were to buy the “desperate times call for desperate measures” logic, where a restriction on fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA. Veritably, the justification to the inclusion of a sunset clause in previous unwonted acts like TADA is that when there is a drop in the perceived threat, there would be no need of the legislation. Also, unlike PDA (Preventive Detention Act), the UAPA has discarded the periodic review clause, thus making it valid indefinitely, unless repealed by Parliament.
By and by, recurrently, more amendments were moved and adopted to the UAPA, one following the 26/11 Mumbai attack, regarding maximum period in police custody (for up to 30 days), incarceration without a chargesheet (for up to 180 days), and restrictions on bail The 2012 amendments to the UAPA further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.
Perpetual amendments were made to the UAPA according to the whims and fancies of the government of the day, facilitating the law to criminalise a broad spectrum of activities, which the government of the day found inconvenient. As a preventive detention law, UAPA has been misused rampantly and has led to politically motivated detentions and human rights violations. Speaking of contemporary India, there has been a nation-wide misuse and misapplication of the Act, by the officials and authorities in charge. According to the data provided by the Ministry of Home Affairs in Parliament in March 2020, a total of 1126 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015, with a conviction rate of less than 2%.

APROPOS J&K:
After extensive misuse of the provisions of Preventive Detention Act (PDA), AFSPA, POTA, TADA, in the past 30 years, there has also been wide misuse of UAPA against the people of Kashmir in and outside the UT, especially of late. Of the 796 UAPA cases registered in the country in 2020, the maximum were from J&K (287). This is significant with respect to the recent detentions of medical students for mere cheering for the Pakistani cricket team in the recent ICC T20 world cup. The term “unlawful activities” is so vaguely defined in the Act that the authorities can slap UAPA on, detain and designate as “terrorist” any individual, for any insignificant act of mischief that annoys the government of the day. Slapping individuals with the draconian provisions of UAPA has become so trivial in J&K that even those who show solidarity with the people of Palestine, and those who express dissent towards the government of the day are being designated as “terrorists” and the act so committed as an “Act of Terror”. The prevailing circumstances in the so-called Union Territory of J&K, and all over the country as well, indicate that the de facto intent of the UAPA is mere incarceration of individuals and associations who do not concur with the ideologies and ways of operating of the government of the day.
India’s security laws framework is supposed to uphold the sovereignty, integrity and security of the nation and not to throw the book at just any individual or association that does not see eye to eye with, or exercises their Right to Dissent, against the government of the day.

WAY AHEAD:
An anti-terrorism law is needed in India, but its enforcement will always result in some draconian anomalies. The existing UAPA does have some effective provisions to combat terrorism (cognizable offences), but there are also some defects and demerits which need to be rightly addressed to make the law effective to prevent and combat terrorism. The Act needs to be amended to ensure the avoidance of its misapplication, ensure its judicious use and to ensure that a constitutional functionary who is independent from the executive is in charge of sanctions for prosecutions and investigations under this Act.
Terrorism and unlawful activities are ones that always create political issues. If the Act has to work, its application must, at all times, look apolitical.

—The writer is a lawyer at J&K High Court and can be reached at [email protected]

NAFIA ZAHOOR