UAPA 2019: TOUGH ON TERROR OR PRONE TO MISUSE

SUBMITTED BY- HARSIMRAN KAUR

SUBMITTED TO- LEGAL VISE

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Abstract

In 2004, the Unlawful Activities Prevention Act (1967) was reapplied as the primary anti-
terrorism law. The act has been revised seven times previously in- 1969, 1972, 1986, 2004, 2008,
2013 and 2019, with substantive revisions in 2008, 2013 and 2019. The UAPA came into effect
or was revived by taking provisions from the then existed anti-terrorism bills like the Terrorist
and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act( 2002)
(POTA). TADA was repealed in 2002 and POTA was repealed in 2004. These laws were
previously debunked due to their abuse by the police against human rights advocates and
minorities, as a result, TADA and POTA were repealed and UAPA became the only anti-terrorist
law in India. Although the law had to be tested individually, its harsh forefathers must not be
overlooked because it is based on a vast history of regressive laws, Sardar Vallabhbhai Patel, the
forefather of the ‘hard state’ introduced the first bill of this kind which was the Preventive
Detention Bill 1950, and it got passed believing at that time that a bill like this one was very
necessary at that point in time. Despite this, The ‘Indian Iron Man’ recognized the flaws of the
bill and was forced to rely on other substitute provisions to fill the void. However, to his dismay,,
the principles of the bill took a more permanent place in the similar laws following it.

Introduction

In August 2019, the parliament approved certain amendments to the Unlawful Activities
Prevention Act (UAPA). Due to these amendments, the central government gets the power to
label any individual as a terrorist. There are two groups one being the group which supports
UAPA by saying that India needs tougher and stringent laws to combat terrorism and
UAPA( amendment) is a law which ensures that and the other group believes that this law can be
misused against minorities, human rights activists etc. In this research paper, the researcher will
be analyzing both the sides and will then also reach to a conclusion which the researcher deems
fit. The objective of UAPA(1967) was to ban an unlawful organization, too penalize and punish
the members of the organization etc. There were three main objectives of the initial UAPA and
they were as follows:-

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 1) To declare an organization unlawful.
2) To penalize the members of the unlawful organization.
3) To penalize the person dealing with or providing funds to the unlawful organization.

The scope of UAPA has expanded vastly because of the amendments. As seen earlier UAPA had
authority over only the unlawful organizations but with the many amendments UAPA was also
given authority to ban terrorist organizations. This paper will broadly discuss the amendments
made to UAPA in 2019 and will also give views on whether UAPA 2019 is tough on terror or
prone to misuse.

The primary goal of this study is to examine the anti-terrorism laws in India with a focus on
UAPA. This contentious legislation got a lot of attention in India, and has been misapplied in a
variety of ways. It is stressed, the importance of comprehending the effect it has on peoples lives
and how it was punitive in nature because it criminalizes dissent, as it is said “it is being used to
suppress speech through repression and abuse, thereby disrupting the very life of public
discourse and press freedom and criminalizing the exercise of civil liberties.” Furthermore the
researcher will be drawing an analysis on the 2019 amendment of UAPA and will also be
discussing the positives and negatives of the amendment.

The UAPA has been analysed and understood in many literatures which the researcher will be
reviewing:-

1) 1Criminalizing Dissent: Consequences of UAPA- A journal article by Anushka Singh-

The Unlawful Activities (prevention) Act criminalizes not only the fundamental right to
associate but it also blurs the line between political opposition and criminal activity by
criminalizing dissident voices and actions. Political resistance experiences major
delegitimization in the process, as specific ideologies, groups and beliefs are made
criminal.
2) 2Unlawful Activities Prevention Act- An article by Asish Gupta and Kranti Chaitanya-
This article explains the evolution of the act and also explains in detail about the timeline

1
SINGH, ANUSHKA. “Criminalising Dissent: Consequences of UAPA.” Economic and Political Weekly, vol. 47,
no. 38, 2012, pp. 14–18. JSTOR, www.jstor.org/stable/41720156. Accessed 18 Apr. 2021.
2
Gupta, Asish, and Kranti Chaitanya. “Unlawful Activities (Prevention) Act.” Economic and Political Weekly, vol.
45, no. 32, 2010, pp. 4–5. JSTOR, www.jstor.org/stable/20764372. Accessed 18 Apr. 2021.

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 and the incidents which occurred over a period of time which led to the amendments and
changes in the act.
3) 3The Unlawful Activities Prevention (amendment) Act 2008: Repeating past mistakes-
An article by Ravi Singh- In this article the author uses various references and case laws
present to him to understand the punitive nature of the act and also reflect upon the
causes of the act.
4) 4Repeal of POTA: What about other draconian acts An article by Ujjwal Kumar Singh-
This article talks about why the POTA was repealed and also about the flaws in POTA.
The article then moves forward to compare POTA with other draconian acts like UAPA
and puts forth the reasons as to why UAPA should also be repealed on the same grounds
on which POTA and TADA were repealed.
5) 5How 'Unlawful' I Was! An Experiential Lesson on the UAPA: an article by -B
ANURADHA- The article talks about UAPA and talks about all the flaws of UAPA and how
the law is not in accordance with the constitution of India. It also talks about the rights of
people which got hampered because of the law. The article also talks about the unlawful and
wrongful arrests made under Unlawful activities prevention act.
6) 6Lone wolf Terrorism: How Prepared Are India’s Intelligence Agencies? An article by
Pallavi Ade- This article talks about all the individuals who go ahead and form an
organization or function individually against the country, the people who commit terrorist
activities. The article then talks about how much india is prepared to deal with these
individuals. The article talks about UAPA as an important act to help India combat terrorism.
7) 7Surat Singh, Law Relating to Prevention of Terrorism (Universal Law Publishing
Co.Pvt. Ltd, New Delhi, 2006) - The book is about laws relating to the terrorist activities
and the prevention of the same for a safe environment.

3
South Asia Human RIghts Documentation Centre, and Ravi Nair. “The Unlawful Activities (Prevention)
Amendment Act 2008: Repeating Past Mistakes.” Economic and Political Weekly, vol. 44, no. 4, 2009, pp. 10–14.
JSTOR, www.jstor.org/stable/40278825. Accessed 18 Apr. 2021.
4
Ujjwal Kumar Singh. “Repeal of POTA: What about Other Draconian Acts?” Economic and Political Weekly, vol. 39, no.
33, 2004, pp. 3677–3680. JSTOR, www.jstor.org/stable/4415404. Accessed 18 Apr. 2021.
5
ANURADHA, B. “How 'Unlawful' I Was! An Experiential Lesson on the UAPA.” Economic and Political Weekly, vol.
49, no. 15, 2014, pp. 26–29. JSTOR, www.jstor.org/stable/24479115. Accessed 18 Apr. 2021.
6
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 Features of UAPA 2019

History of UAPA – UAPA (Unlawful Activities Prevention Act) was introduced in 1967, The
National Integration Council of India created a Committee on National Integration and
Regionalization to examine further into possibility of laying appropriate constraints on
fundamental rights in the benefit of India's sovereignty and integrity. The Government accepted
the suggestions of the National Integration and Regionalization Committee and issued the
Constitution Sixteenth Amendment Act in 1963. This amendment was passed to place justifiable
constraints on the foregoing fundamental rights in the benefit of India's integrity and sovereignty:
1) “Freedom of speech and expression”
2) “Right to form associations or unions; and”
3) “Right to peacefully assemble without weapons”.
The Unlawful Activities (Prevention) Policy was presented and enacted by Parliament in order to
put the 16th Constitutional Amendment's provisions into effect. The Unlawful Acts (Prevention)
Act was enacted to give relevant entities the authority to deal with operations that jeopardize
India's integrity and sovereignty.
Since its inception, the UAPA has been revised four times. The 2019 amendment is the most
recent one. The Union Home Minister, Amit Shah, tabled the Unlawful Activities (Prevention)
Amendment Bill, 2019, on July 8, 2019, and this was enacted by Parliament in August, amid
opposition objections.
Key Features of UAPA 2019- The Amendment Act modifies the UAPA and establishes a
new framework for fighting terrorist actions, as well as persons and organizations that promote
terrorism in India. Due to the punitive nature of the modification, political parties, human rights
advocates, and other experts have expressed strong objection to the revised provisions of the
UAPA. According to the reform act, the National Investigation Agency has the authority to seize

7
Law Relating to Prevention of Terrorism Hardcover – 1 January 2003 by Dr. Surat Singh (Author), Hemraj

Singh (Author)

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property suspected of being profits of terrorism, as long as the Director General of the NIA
approves the seizure8. After the consent of the Director-General of the NIA, an official of the
NIA conducting an investigation into a terror case is permitted under the new section 25 to take
any property deemed to be reflecting revenues of terrorism. Previously, this authority was
limited to the investigating officer and could only be exercised with the previous agreement of
the Director General of Police of the area in which the asset was located. This was challenged on
the grounds that it went against India's federal structure, as it gave a central agency the right to
acquire state property without judicial review. “Furthermore, by incorporating clause (ba) to
section 43 of the UAPA, officials of the NIA have also been authorised to examine offences
prosecutable under Chapters IV and VI, which offers that an investigator of the NIA not below
the rank of an Inspector is authorized to investigate offences punishable under the said sections.
Prior to this change, only officials with the rank of Deputy Superintendent of Police or Assistant
Commissioner of Police had investigative powers (in Metropolitan areas). The Union Home
Minister emphasized the NIA's specialized nature as an anti-terrorist unit, rather than an ordinary
police force. It was also mentioned that there are over 250 pending cases and only about 25 SPs
assigned to probe such offences. As a result, it is critical to equip and authorize police inspectors
to examine such incidents. The capacity of the central government to classify individuals as
terrorists is one of the most contentious clauses introduced to the UAPA by the 2019
amendment. The title of Chapter VI has been changed to “Terrorist Organizations and
Individuals” to broaden its reach. A new Schedule IV has been introduced to UAPA, which
comprises a list of people who have been designated as terrorists by the federal government.
Anyone regarded to be involved in terrorism if they perform or collaborate in terrorist activities,
support terrorism, plan for terrorism, or otherwise are involved in terrorism have been added to
Section 35. On the basis of participation in terrorism, the Central Government has the authority
to add, eliminate, or amend people from the Fourth Schedule. Section 36 has also been altered to
allow “any person impacted by the insertion of his identity in the Fourth Schedule as a terrorist”
to apply to have their names removed from the list. While presenting the Bill, the Home Minister
stated that terrorism is not limited to the use of firearms, but also encompasses the dissemination
of hatred and radicalism. The International Convention for the Suppression of Acts of Nuclear
Terrorism (2005) was added to the UAPA's Second Schedule in an attempt to fight the risk of

8
Ibid, §.25.

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nuclear terrorism in corporating individual people in the UAPA Schedule authorizes officers to
confiscate or connect the properties of such designated persons, whereas previously only those of
illegitimate organizations could be confiscated or attached, resulting in a broadening of search,
seizure, and arrest authorities. Individuals with access to cash and economic resources of other
groups can now be linked or confiscated by an order for the same, resulting in increased
efficiency in the fight against terrorism. Furthermore, in today's world, when terrorism knows no
borders, a mechanism to designate individuals as terrorists will have far-reaching implications in
combating internationally coordinated terrorist actions and bolstering worldwide efforts to
effectively deal with the threat of terrorism”.

Arguments in favor of UAPA 2019

The scope of terror organizations and the investigation procedures were significantly altered by
the 2019 amendment. According to the legislation prior to modification, the government could
declare an organization as a terrorist group if it commits, participates, promotes, plans, or
otherwise engages in terrorism. The 2019 amendment gave the government the authority to label
people as terrorists on the same reasons. This empowers the government to charge everyone as a
terrorist on the same basis. This empowers the government to bring all those who have broken
the law by adopting a new name or refusing to join any group while persisting to perform
terrorist crimes within the scope of the law”. Individuals like Hafeez Saeed, Masood Azhar, and
Yazin Bhaktal, who India couldn't explain as terrorists in their own country, as well as other lone
wolves who aren't affiliated with any group, have been brought under the jurisdiction of this
statute. It is important to remember that terrorist activities are ultimately undertaken by people
rather than organizations. Terrorist organizations are a way for terrorists to band together and
plan terrorist attacks. The fact that an organization or association has been declared illegal does
not mean that the individuals who make up such organization will stop committing terrorist acts.
Individuals, not terrorist organizations, are the driving force behind them. Individuals are given
the option to avoid the law by not being designated as terrorists, since they can simply form a
new association or group under a different identity and continue to engage in terrorist action.

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 Arguments against UAPA 2019

Misuse of the amendment of 2019, has the potential to be draconian because it allows the Union
Ministry to classify anyone as a terrorist without going through any formal process. Harassment
and media trials will have social, economic, and psychological consequences for the individual.
Any person who is “preparing for, encouraging, or otherwise engaging in terrorism” is presumed
to be participating in terrorism, and the government has the authority to designate such a person
as a terrorist without providing any justification. The sole recourse would be a proposal to the
same Central Government, which would be considered by a committee constituted by the same
government, providing the government the broadest range of powers possible. The amendment
of 2019 grants the administration the right to conduct a witch hunt targeting political opponents
or religious minority in the country in the lack of a judicial process for judicial review. Given the
rise in anti-government sentiment in recent years, it's not unreasonable to believe that a broad
word like "terrorist propaganda" or "terrorist literature" may be used to slam the UAPA
provisions on anyone who expresses “anti-government sentiment”. Any revolutionary book that
may be classified as Maoist doctrine falls under the act's definition of terrorist material, and those
who possess it are considered terrorists. Many writers, journalists, and campaigners will be
labeled terrorists as a result of this. The difference between political protest and illegal activity
has been blurred by the UAPA, which has been utilized to repress dissident voices and deeds on
several occasions. Particular ideologies, groups, and views are frequently covered by UAPA,
leading in the delegitimization of political opposition, which is critical to a democracy's
successful implementation. Organizations and associations that challenge the ruling class's
policies or beliefs are constantly subjected to witch hunts under the provisions of UAPA. The
2019 modification to the UAPA effectively eliminated the distinction between being an accused
and a convicted person. As a result, being charged with a felony by a judge after using judicial
mind has become synonymous with being a criminal; yet, under the UAPA, an individual might
be labeled a terrorist by the authorities at its discretion. There are no rules for such designation,
and the government has broad discretion in this regard, with no recourse to the courts.

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 Conclusion

The US Supreme Court established in the Brandenberg Case9 that such communication or idea
must lead to clear and obvious violence, and labeling the individual as a terrorist on the grounds
of speech and idea goes against that precedent. Section 66A of the Information Technology Act
of 2000 was ruled down by the Supreme Court due to its vagueness, as the statute imposed
unjustified limits on online communication. Similar concerns have been expressed about the
2019 amendment, which restricts freedom of speech and expression under Article 19(1)(a) of the
Constitution. ……….. The court also reaffirmed the distinction between advocacy and
incitement, which was emphasised in the Brandenburg case. As a result, the Supreme Court
decided that Article 19(1)(a) of the Constitution protects only advocacy of an idea, not
incitement to violence. Arup Bhuyan v. State of Assam10established yet another legal precedent,
…………. where the court declared that simply being a member of an illegal group does not
make a person liable to punishment unless they actively participate, effectively putting an end to
the practise of guilt by association. The right to privacy was recently acknowledged as an
inherent component of Article 21 of the Constitution in K.S. Puttuswamy v. Union of India11
Article 21 of the Constitution recognizes the right to privacy as a fundamental component. The
Supreme Court ruled that the right to be left alone is a basic and inviolable feature of human
nature. As a result, during executive profiling, an individual's personal autonomy is invaded,
resulting in a violation of Article 21. Legislations such as the UAPA, TADA, and POTA, along
with other anti-terror measures, frequently directly violate the fundamental rights and freedoms
entrenched in the Constitution, which are essential in a democracy. Demonstrations and protests,
as well as mobilization of public perception, are frequently used to exercise the right to freedom
of speech and expression, irrespective of whether such viewpoints are critical of the government
or not. In its execution, a law as strict as the UAPA often illustrates the same colonial approach
to dealing with dissent. The phrase "unlawful association" originally appeared in the Criminal
Law Amendment of 1908, when it was used to suppress the Indian independence movement.

9
Brandenburg v. Ohio, 1969 SCC OnLine US SC 144.
10
Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.
11
K.S. Puttuswamy v. Union of India, (2014) 6 SCC 433.

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Regrettably, the vision of the Constitution's framers has been largely ignored in recent years,
with legislation such as the United States Anti-Discrimination Act (UAPA) being utilized to
suppress political opposition.
Suggestions

The constitutional norm of substantive due process must be conducted in order to collectively
confront the threat of terrorism. Despite the severe extent of the crimes, abandoning the
standards of fair trial is an ethical loss against proponents of hatred and violence. As seen by the
rigorous provisions of TADA, POTA, and UAPA, adopting the retributive paradigm of
punishment has not resulted in terrorism being curtailed. It is acknowledged that for the sake of
the state's security and integrity, strong and repressive actions restricting cardinal principles of
criminal law are required; nonetheless, the government cannot and must not acquire arbitrary
powers by implementing these concerns. Furthermore, it is critical that the federal and state
governments work together to maintain national security opposing acts of terrorism and
coordinate in areas such as information sharing, individual movement, security threats, and other
issues. Terrorism must be recognized as a joint legal obligation of the Centre and the states, with
coordinated measures taken to combat terrorist organizations and acts. In recent years, cyber
space, often known as the digital domain, has become a significant target for terrorists.
Governance, services, financial transactions, personal information, and information distribution
seem to have become increasingly reliant on technology and the internet, making us more
vulnerable to terrorist attacks through cyberspace. To counteract this new and developing hazard,
India must establish powerful systems and firewalls to ensure that the country's digital
infrastructure is not disrupted or vulnerable to cyber assaults. State and non-state actors both
constitute a threat to nations' cyber infrastructure, and this becomes more concerning when a
country's Key Information Infrastructure is threatened. This comprises power grids, nuclear
reactors, pipelines, transportation facilities, and any other infrastructure linked to the web being
disrupted or damaged. In order to accurately combat these cyber threats, India has to upgrade its
cyber security apparatus.

Case Laws
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1) Khalid vs State (Govt. Of Nct Of Delhi) on 8 September, 2020
2) Zameer Ahmed Latifur Rehman ... vs State Of Maharashtra & Ors on 23 April, 2010
3) Lt. Col. Prasad Shrikant Purohit vs The State Of Maharashtra on 9 November, 2011
4) Romila Thapar vs Union Of India on 28 September, 2018
5) Extra Judl.Exec.Victim Families ... vs Union Of India & Anr on 13 July, 2016
6) Bikramjit Singh vs The State Of Punjab on 12 October, 2020
7) Union Of India vs Yasmeen Mohammad Zahid @ Yasmeen on 2 August, 2019
8) Union Of India vs K.A. Najeeb on 1 February, 2021
9) Thaounaojam Shyamkumar Singh vs State (Govt Of Nct Of Delhi) on 17 February, 2009
10) Students Islamic Movement Of ... vs The Secretary, Home & Ors. on 12 March, 2010
11) K.S. Puttuswamy v. Union of India, (2014) 6 SCC 433.
12) Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.
13) Brandenburg v. Ohio, 1969 SCC Online US SC 144.
14) State of Maharashtra v. Bharat Shanti Lal Shah & Ors, (2008) 13 SCC 5.
15) R.M.Malkani v. State of Maharashtra, (1973) 1 SCC 471.

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3) Editorial, The Hindu. “rethink the New UAPA.” The Hindu, December 20, 2012.

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