Constitutional freedom and UAPA

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Recently, the judgment of the Delhi court granted the bail to a few activists, who are in jail for over a year without trial, for his or her alleged role in the 2020 Delhi riots.

The judgment assumes significance because the costs were under the Unlawful Activities Prevention Act (UAPA), 1967. UAPA is strongly objected to by the general public antithetical to constitutional freedom to dissent, rule of law, and fair trial.

The Delhi state supreme court judgment may be a step in the right direction, but there are many issues related to the UAPA.

UAPA Law

Factly enacted in 1967, the UAPA was amended to be modeled as an anti-terror law in 2004 and 2008.

In August 2019, Parliament cleared the Unlawful Activities (Prevention), Amendment Bill, 2019 to designate individuals as terrorists on certain grounds provided within the Act.

In order to accommodate terrorism-related crimes, it deviates from ordinary legal procedures and creates an exceptional regime where constitutional safeguards of the accused are curtailed.

Between 2016 and 2019, the amount that UAPA figures are published by the National Crime Records Bureau (NCRB), a complete 4,231 FIRs were filed under various sections of the UAPA, of which 112 cases have resulted in convictions. 

This frequent application of UAPA indicates that it's often misused and abused like other anti-terror laws within the past in India like POTA (Prevention of Terrorism Act) and TADA (Terrorist and Disruptive Activities (Prevention) Act).

Associated Issues

Vague Definition of Terrorist Act: The definition of a “terrorist act” under the UAPA substantially differs from the definition promoted by the global organization (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. 

According to Special Rapporteur to call an offense a “terrorist act”, three elements must be cumulatively present:

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 alliance to try and do or refrain from doing something; and

The aim must be to further an ideological goal.

UAPA, on the opposite hand, offers an overbroad and ambiguous definition of a “terrorist act” that incorporates the death of, or injuries to, any person, damage to any property, etc.

Denial of Bail: the foremost problem with the UAPA lies in its Section 43(D)(5), which prevents the discharge of any accused person on bail if, police have filed the chargesheet that there are reasonable grounds for believing that the accusation against such person is clearly true.

The effect of Section 43(D)(5) is that when the police elect to charge a person under the UAPA, it becomes extremely difficult for bail to be granted. Bail may be a safeguard and guarantee of the constitutional right to liberty.

Pendency of Trails: Given the state of the justice delivery system in India, the speed of pendency at the amount of trial is at a median of 95.5 percent.

This means that trials are completed each year in but 5 percent of cases, signifying the explanations for long years of undertrial imprisonment.

State Overreach: It also includes any act that's “likely to threaten” or “likely to strike terror in people”, giving unbridled power to the govt. to brand any ordinary citizen or activist a terrorist without the particular commission of those acts.

It gives the state authority vague powers to detain and arrest individuals who it believes to be indulged in terrorist activities.

Thus, the state gives itself more powers vis-a-vis individual liberty guaranteed under Article 21 of the constitution.

Undermining Federalism: Some experts feel that it's against the federal structure since it neglects the authority of state police in terrorism cases, provided that ‘Police’ could be a state subject under 7th schedule of Indian Constitution.

Significance of Judgement

Limiting Scope: The court’s judgment notes that because the UAPA is supposed to cope with terrorist offenses, its application must be limited to acts that may reasonably fall within a plausible understanding of “terrorism”.

Confirming Constitutional Freedom: Earlier this year, the Supreme Court in Union of India v K A Najeeb 2021, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the basic rights of the accused are violated. 

The Court held that the rigors of UAPA bail restrictions “will resolve where there's no likelihood of trial being completed within an inexpensive time.

The Delhi supreme court took this reasoning a step further, holding that it might not be desirable for courts to attend till the accused’s rights to a speedy trial are entirely vitiated before they're set at liberty.

Conclusion

Drawing the road between individual freedom and state obligation to produce security could be a case of a classical dilemma. it's up to the state, judiciary, and civil society, to strike a balance between constitutional freedom and also the imperative of anti-terror activities.

There is a greater role for the judiciary here to carefully examine the cases of alleged misuse. Arbitrariness and subjectivity under the law should be checked through review.

Under the proper appeal for the individual against him being designated as a terrorist, the judiciary should follow the elemental principle of fair procedure and will remain alert of any intention of the executive to border the individual by manufacturing fake evidence.

Officers who are found guilty of any misuse and abuse of the powers under the law must be strictly punished.

Drawing the road between individual freedom and state obligation to produce security could be a case of a classical dilemma. it's up to the state, judiciary, and civil society, to strike a balance between constitutional freedom and also the imperative of anti-terror activities.