The Unlawful Activities (Prevention) Act, 1967, was initially passed to protect Indian sovereignty and integrity, and to fight terrorism and criminal groups. The law has tightened over the years, and especially following the amendments of 2004, 2008, 2012 and 2019, it has become much stricter. The State justifies such changes by the fact that terrorism is a unique threat that needs unique measures. Arguably, terror networks are secretive and well organised; it is hard to collect evidence, and the criminal laws currently exist are insufficient to address such threats. In a nation where cross-border terrorism and domestic security threats are the order of the day, a robust anti-terror structure may be perceived as inevitable. In this light, UAPA is justified as a tool of national security as opposed to being a draconian tool. Before redesigning of UAPA, the main act dealing with terrorist activities was the Terrorist and Disruptive Activities (Prevention) Act of 1987 (the TADA) and the Prevention of Terrorism Act of 2002 (the POTA).
Between Terrorism and Dissent: The Slippery Slope
It is, however, a controversial issue when the law goes beyond the plane of terrorism and gets involved in the plane of dissent and political expression. UAPA has been used more aggressively in recent years, with activists, students, reporters, lawyers and political opponents finding themselves in the sights of UAPA. This has created the impression that the law is not just being employed to fight terrorism but also to combat any form of criticism and opposition. In a constitutional democracy, opposition to the government policy is a rightful use of basic rights and cannot be equated with disloyalty to the country. When an anti-terror law is applied to criminalise protest, speech and political mobilisation, this puts the boundary between national security and authoritarian control, and it borders on draconian law.
Process as Punishment: Long Detention and the Death of Liberty
The effect of UAPA on individual freedom through pre-trial detention on a long-term basis is one of the most disturbing issues of this law. The Act permits prolonged custody, continued filing of charge sheets and prolonged imprisonment without trial. Consequently, they can keep people in prison for years without the guilt being determined. In this instance, the punishment itself is the procedure. The presumption of innocence is undermined, and the freedom is lost during the accusation and not at the conviction stage. This aspect is very much in line with the nature of the draconian laws, in which cruelty is not only in the amount of punishment but in the withholding of fair process.
The 2019 Amendment: Labelling People Terrorists.
These issues were further aggravated in the 2019 amendment of the UAPA, which gave the Central Government, in Section 35, the power to declare individuals as terrorists. In the past, it was only organisations that could be declared as terrorist entities. The fact that some individuals are included in the list, yet they have not been found guilty by a court of law before, creates grave constitutional concerns. The stigma of being labelled a terrorist has annihilating effects on the reputation, livelihood and social status, and this has passed the responsibility of proving innocence on the part of the targeted individual. This is contrary to the principle of criminal jurisprudence that someone is innocent until the court proves them guilty. This kind of unchecked executive power, which is not subject to immediate judicial scrutiny, contributes to the feeling that UAPA is an oppressive and arbitrary type of law.
Exception of Bail: Judicial Constraints and Section 43D(5)
Another large-scale cause of UAPA being described as draconian is the presence of a bail provision in 43D(5) that is extremely restrictive. This is where the required provision states that no bail will be given when the court believes that the allegations are prima facie. In National Investigation Agency v. Zahoor Ahmad Shah Watali, the Supreme Court ruled that in the bail process, courts are required to believe the prosecution side more or less. This has rendered bail under UAPA, virtually, in most cases, extremely difficult. The refusal to grant bail to Umar Khalid and Sharjeel Imam and give conditional bail to other people is a depiction of a strict interpretation of this provision. Confinement, without trial, even over a long period of time, is sometimes not viewed as adequate to warrant release. This essentially transforms arrest into a rule and freedom into an exemption, which is a characteristic of draconian laws.
Judicial Resistance
Meanwhile, the courts have also tried to strike a constitutional balance. In K.A. Najeeb v. Union of India, the Supreme Court decided that the statutory limitations established by UAPA are not in a position to supersede the right to life and personal liberty that have been established under Article 21. The Court issued the bail on the basis that the extended jail time without trial is against constitutional principles. This ruling reinstated the fact that, despite national security, no constitutional rights can be suspended. Nevertheless, these interventions are still an exception, but not the rule, and the general scheme of UAPA is still strongly skewed in favour of the State.
Comparison of the Rowlatt Act and Echoes of Colonialism
The working of UAPA has been likened to the Rowlatt Act of 1919, which was a colonial law, allowing no-trial arrest on mere suspicion. The two laws give priority to state authority over individual freedom and undermine procedural security. This analogy compels critical thinking on the issue of whether or not independent India has changed the colonial repression to a legal totalitarianism. The use of mechanisms of colonial rule by the democratic governments is found to make the law very doubtful in its validity.
Mere Membership Is Not a Crime: Judicial Explanations
Other efforts to ensure that the anti-terror laws are not abused by the Supreme Court have been to ensure that being a member of an outlawed organisation is not a crime. In Sri Indra Das and Arup Bhuyan v. State of Assam, the Court interpreted Section 10 of UAPA and 3(5) of TADA and found that a literal meaning of such terms would be against Article 19 and 21 of the Constitution, State of Assam. This was in line with the previous judgment in Arup Bhuyan v. The Court stated in State of Assam that it is not sufficient that one is a member, but that the individual must resort to violence or that he or she incites violence or causes disorder to people. Those rulings show court dissatisfaction with the broad and general scope of UAPA and represent an attempt to guard civil freedoms against overreach by the state.
Security and Liberty vs the Constitution
The fact that UAPA is draconian in the end, after all, depends not on its text but on how it is applied. Although the law can be argued out as a justifiable course of action as a way of safeguarding national security, its application has often led to the suppression of dissent, extended imprisonment without trial and criminalisation of political expression. When protest becomes conspiracy, speech becomes sedition, and criticism becomes a threat, the law is no longer preventive but becomes punitive. In these conditions, UAPA is rather a control mechanism than a security law.
Conclusion: Law Necessary or Draconian?
UAPA is an indication of the severe conflict between security and freedom in the Indian constitutional system. Although the State has a valid role to ensure that the country is not threatened by terrorism, it cannot achieve this by trampling on freedoms that encompass a democracy. Constitutional morality cannot readily agree with a law that allows trial without detention, branding without conviction and without bail as a rule. Thus, despite what UAPA might need to do, in practice it frequently takes a draconian form, in which power is prioritized over rights, and the process becomes punishment.
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