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DAILY NEWS ANALYSIS

  • 16 June, 2021

  • 15 Min Read

Delhi HC and UAPA

Delhi HC and UAPA

What is the news?

  • Notwithstanding the fact that the definition of ‘terrorist act’ in Unlawful Activities (Prevention) Act (UAPA) is “wide and even somewhat vague”, the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts that fall squarely within the definition of conventional offences, the Delhi High Court.
  • A bench of Justice Siddharth Mridul and Justice Anup Jairam Bhanbhani said the word ‘terrorism’ or ‘terror’ has nowhere been defined in the UAPA.
  • Hence, the court must be careful in employing the definitional words and phrases used in section 15 (of the UAPA that defines ‘terrorist act') in their absolute literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime, the bench said.
  • The High Court’s observation came while granting regular bail to JNU students Natasha Narwal and Devangana Kalita, and Jamia Millia Islamia student Asif Iqbal Tanha, arrested in connection with the north-east Delhi riots.

Unlawful Activities Prevention Act, 1967

UAPA’s origin

  • The ‘terrorist act’, including conspiracy and act preparatory to the commission of a terrorist act, were brought within the purview of UAPA by an amendment made in 2004, on the heels of Parliament repealing Prevention of Terrorism Act (POTA).
  • POTA’s precursor, the Terrorist & Disruptive Activities (Prevention) Act (TADA) was repealed in 1995.
  • The High Court said the phrase ‘terrorist act’ must get its colour and flavour from the problem of terrorism as was earlier addressed by the Parliament under TADA and POTA.

  • Unlawful Activity refers to any action taken by individual or association whether by action/ words spoken/ written/signs to questions disrupts the territorial integrity and sovereignty of India.
  • It is an enhancement of TADA, 1995 and POTA, 2004. It was enacted during Indira Gandhi.
  • The National Integration Council (headed by PM) appointed a Committee on National Integration and Regionalisation.
  • Pursuant to this Committee, 16th CAA, 1963 was enacted to impose, by law, reasonable restrictions in Art 19 (Speech, Association, Assembly) in the interests of integrity and sovereignty of India.
  • And to implement the provisions of 1963 Constitution Amendment Act, Unlawful Activities (Prevention) Act was enacted in 1967.

UAPA, 1967

NIA Amendment Act, 2019

  1. It aims at effective prevention of unlawful activities across India and abroad.
  2. Its main objective was to provide powers to Central Agencies and States to deal with terrorist activities directed against integrity and sovereignty of India.
  3. Center may designate an organization as a terrorist organization.
  4. It is applicable across the entire country.
  5. Any Indian or Foreign National charged under UAPA is liable for punishment under UAPA, 1967.
  6. It is applicable even if the crime is committed on a foreign land, outside India.
  7. Persons on ships and aircrafts registered in India.
  1. It amended Schedule 4 of UAPA which will allow NIA to designate Individuals as terrorist.
  2. It empowers DG of NIA to seize properties (which previously required permission from DGP).
  3. It allows NIA officers (Inspector and above) to investigate the cases. Earlier only DSP or ACP and above could investigate.
  4. MHA declared 4 individuals as terrorists
    1. Jaish-e-Mohammed chief Masood Azhar
    2. Lashkar e Taiba - Hafiz Saeed, Rehman Lakhvi
    3. Dawood Ibrahim

UAPA Amendments

  • The UAPA – an enhancement on the TADA (Terrorist and Disruptive Activities (Prevention) Act), which was allowed to lapse in 1995 and the Prevention of Terrorism Act (POTA) was repealed in 2004 — was originally passed in 1967 under the then Congress government led by former Prime Minister Indira Gandhi.
  • Eventually amendments were brought in under the successive United Progressive Alliance (UPA) governments in 2004, 2008 and 2013.

  • PT Shot: At present, NIA is functioning as the Central Counter Terrorism Law Enforcement Agency in India established under NIA Act 2008.

About Unlawful Activities [Prevention] Act(UAPA):

  • UAPA was introduced in 1967 to target secessionist organizations.
    • It is primarily an anti-terror law aimed at preventing certain unlawful activities of individuals and associations.
  • Investigation: The cases under the UAPA are investigated by the State police and the National Investigation Agency(NIA).
  • Bail: Under the act, getting bail is rare. The investigating agency has up to 180 days to file a charge sheet..
  • It is considered to be the predecessor of laws (now repealed) Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act(POTA).

Key Provisions of the Act:

  • The Act assigns absolute power to the central government. It can declare an activity as unlawful, by way of an Official Gazette.
  • The act has the death penalty and life imprisonment as the highest punishments.
  • Under the act, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if the crime is committed on a foreign land, outside India.
  • The investigating agency can file a charge sheet in maximum 180 days after the arrests. This duration can be extended further after information to the court.

2004 amendment:

  • The act was amended in 2004.
  • It added “terrorist act” to the list of offences, to ban organisations for terrorist activities.

2019 amendment:

  • The amendment empowers the Central Government to designate individuals as terrorists on certain grounds.
  • It empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is under investigation by the agency.
  • It also empowers the officers of the NIA, of the rank of Inspector or above to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state

Data on UAPA Cases

  • There is 72% increase in the number of persons arrested under the UAPA (Unlawful Activities [Prevention] Act in 2019 compared to year 2015, data provided by the Ministry of Home Affairs (MHA).
  • As many as 1,948 persons were arrested under the UAPA in 1,226 cases registered across the country in 2019.
  • In 2019, the highest number of such cases were registered in Manipur (306), followed by Tamil Nadu (270), Jammu & Kashmir (255), Jharkhand (105) and Assam (87) cases. While in 2017 (below image) shows that Manipur was followed by J&K, Assam, Indicating Sharp rise in cases in TamilNadu, Jharkhand
  • The highest number of arrests were made in Uttar Pradesh (498), followed by Manipur (386), Tamil Nadu (308), Jammu & Kashmir (227) and Jharkhand (202).
  • NCRB data reveals 5,922 UAPA arrests between 2016 and 2019 against a mere 132 convictions. At 2019’s start, 3,908 UAPA cases were pending investigation from previous years in which police filed 257 charge sheets in 2019.
  • From 2015 till 2018, the cases registered under the Act annually stood at 897, 922, 901 and 1,182 respectively, while the number of arrests was 1,128, 999, 1,554 and 1,421.
  • Meanwhile, against 1,876 cases pending trial from previous years and 485 cases sent for trial in 2019, courts completed trial in just 113 cases, with a 29% CONVICTION RATE.
  • Cases under the UAPA are investigated by the State police and the National Investigation Agency (NIA). As far as the NIA is concerned, so far 48 special courts have been constituted across the country for the speedy trial of terror-related cases.

National Investigating Agency

  • NIA is a Central agency established by NIA Act, 2008 (after Mumbai attacks) to combat terror in India.
  • It comes under the Ministry of Home Affairs.
  • NIA acts as the Central Counter Terrorism Law Enforcement Agency.
  • It is authorised to investigate any terror related matter without special permission of the States.
  • The founding DG of NIA was Radha Vinod Raju. Currently Y C Modi is the chief.
  • Functions
    1. To investigate terror related cases or to make strategy to combat terrorism.
    2. To study and analyse laws related to terrorism in other countries and evaluate and amend Indian laws.
    3. To investigate and prosecute offences affecting sovereignty, integrity, security of the State.
    4. To have friendly relations with Foreign countries and International org.
    5. To implement International treaties, agreements and conventions.
  • NIA has banned JeM, LeT, PLA, SIMI, Babbar Khalsa International, ULFA, NDFB (Assam), LTTE, TNLA etc.
  • NIA (Amendment), 2019
    1. Ambit of NIA increased to investigate Human Trafficking, Counterfeit currency, Manufacture or sale of prohibited arms, Cyber Terrorism and Offenses under Explosive Substances Act, 1998.
    2. Jurisdiction of NIA increased. They can investigate offences committed outside India. It will be subject to international treaties and domestic laws of other countries.
    3. Center and State can designate Session Courts as Special Courts to conduct trials under NIA Act. This will be done in consultation with CJHC of the respective State.

Defining ‘terrorism’

  • To understand the concept and construction of 'terrorism', Delhi High Court referred to various judgments of the Supreme Court where the issue has already been dealt with.
  • Terrorism is one of the manifestations of increased lawlessness and cult of violence... A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law,” the Supreme Court had said in Hitendra Vishnu Thakur versus State of Maharashtra case.
  • In the same judgment, the Supreme Court said, “Every ‘terrorist’ may be a criminal but every criminal cannot be given the label of a ‘terrorist’ only to set in motion the more stringent provisions of TADA.”
  • The High Court said, in its opinion, “The intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less.”
  • “Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation,” the court cautioned.
  • It reminded that a sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision.
  • “Also, the more stringent a penal provision, the more strictly it must be construed,” the High Court remarked pointing at the use of the stringent provision under UAPA against the three students in the north-east Delhi riots case.

Source: TH


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