UAPA amendment underlines classical dilemma

By Satya Prakash

THE  latest amendment to ‘The Unlawful Activities (Prevention) Act’ (UAPA) has been criticised by activists, fearing its potential abuse that can have serious implications for civil liberties.

Passed by the Lok Sabha on July 8, ‘The Unlawful Activities (Prevention) Amendment Bill, 2019’ was cleared by the Rajya Sabha on July 24 and notified in the Official Gazette on August 8. It amends the Unlawful Activities (Prevention) Act, 1967 and provides for special procedures to deal with terrorist activities. 

Under the 1967 Act, an investigating officer was required to take prior approval of the DGP to seize properties connected with terrorism.  The amendment to Section 25 of the Act says if the probe is conducted by the National Investigation Agency (NIA), instead of the DGP of the state concerned, NIA Director General can accord approval for seizure of such property. This was needed as in many cases NIA faced problems in getting timely approval of the DGP.

Second, the original Act provided for investigation of cases by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.  However, a new provision — Section 43(ba) has been added to the original Act to additionally empower NIA officers of the rank of Inspector or above to probe cases. This is because of dearth of good number of officers in the rank of Deputy Superintendent or Assistant Commissioner of Police or above.  

Third, the original Act says terror acts include acts committed within the scope of any of the treaties listed in second schedule of the Act which lists nine treaties, the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979) included.  The amendment added the International Convention for Suppression of Acts of Nuclear Terrorism (2005) to the list in view of the changing nature of terror activities.

However, the most controversial amendment is about empowering the Central Government to designate an individual as a “terrorist”. The 1967 Act only empowered it to designate an organisation as a terrorist organisation if it committed terrorist acts or participated in such acts, prepared for terrorism, promoted terrorism, or was otherwise involved in terror acts. 

But the amendment to Section 35 of the Act gives additional power to the Centre to designate individuals as terrorists if they committed terror acts or participated in such acts, prepared for terrorism, promoted terrorism, or were otherwise involved in such acts. All the fuss is about this particular change.

India wanted the world to declare Masood Azhar a terrorist. But New Delhi wasn't in a position to do so for want of a provision in the UAPA authorising the Central Government to take such a decision. The amendment addresses this problem.

To start with, ‘The UAPA, 1967’ was enacted to provide for more effective prevention of certain unlawful activities of individuals and associations, and for dealing with terrorist activities, and for matters connected therewith. 

It was amended in 2004, 2008 and 2013 to give more teeth to the law to deal with terrorism as India remained one of the top victims of terror, particularly state-sponsored terrorism from across border.  Since 1980, India has faced more than 100 terror attacks in which around 20,000 innocent people have been killed. Hundreds of terrorist cells are said to be operating in India, which also faces the problem of red terror. 

The UAPA amendment highlights the classical dilemma of a democratic society which witnesses an eternal tussle between individual rights and freedom and the state's obligation to protect the life, liberty and property of every citizen.

The dilemma has given rise to many questions. How much freedom individuals need? How much powers be given to the State to discharge its basic obligation of protecting the life, liberty and property of citizens? In case of a conflict between the two, where does one draw the line? 

At the most basic level it's about individuals' quest for freedom. But equally important is the state's responsibility. The nature of state is such that it would try to get more powers. There are no easy answers to these questions which have troubled political thinkers for centuries. 

It's about a trade-off between citizens and the State that has troubled political thinkers, such as Hobbes and Roussea, for centuries. It involves surrender of certain rights in favour of the State in lieu of protection offered. It’s all the more difficult to find universally acceptable answers to such questions in troubled times. 

One thing is clear i.e. in case of a constitutional challenge to the UAPA amendment; it will be tested on the touchstone of Article 21 of the Constitution which says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The amendment will be tested more on the touchstone of “due process of law” — an American concept under the Fifth Amendment — which was imported via the Supreme Court's verdict in Maneka Gandhi’s case (1978). It requires the law to be fair, just and reasonable. 

Individual rights vs state’s obligation

  • The UAPA amendment highlights the classical dilemma of a democratic society which witnesses an eternal tussle between individual rights and freedom and the state’s obligation to protect the life, liberty and property of every citizen
  • The dilemma has given rise to many questions. How much freedom individuals need? How much powers be given to the State to discharge its basic obligation of protecting the life, liberty and property of citizens? In case of a conflict between the two, where does one draw the line?