Context:

• This article is based on a news “UAPA case against NewsClick for plot to disrupt sovereignty of India” which was published in the Hindu. Recently, Unlawful Activities (Prevention) Act (UAPA) has been invoked against the news portal “NewsClick”.

More on News

• NewsClick faces allegations of receiving illegal funding from China aimed at propagating Chinese propaganda, routed through the United States.
  • Officials are probing if the foreign funds were being used for information warfare.
• According to NewsClick, all funding had been through the appropriate banking channels and had been reported to the relevant authorities as required by law.
• The Enforcement Directorate had accused the company of money laundering, claiming that the portal received ₹77 crore as foreign remittance between the years 2018-21.

About UAPA

• The UAPA is an anti-terrorism law that was first enacted in 1967 with the primary objective to effectively prevent and deal with activities that pose a threat to the sovereignty and integrity of India.
• Objective: It provides for more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities and other connected matters.
• Unlawful Activity: It refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty in India.
• It extends to the whole of India. The provisions of this Act apply also to
  • Citizens of India outside India.
  • Persons in the service of the Government, wherever they may be.
  • Persons on ships and aircrafts, registered in India, wherever they may be.
• Terrorist Act: Whoever does any act with intent to threaten the unity, integrity, security (including economic security) or sovereignty of India or with intent to strike terror in the people commits a terrorist act.

• Terrorist Organization: Any person who is a member of a terrorist organization shall be sentenced to 10 years in prison under Sections 20 and 38. The UAPA schedule includes a list of prohibited groups. 
• Amendments
  • 2004: Added specific chapter aimed at prosecuting terrorist acts.
  • 2008: Any act “likely to threaten the unity, integrity, security or sovereignty of India” or “likely to strike terror in the people” is also a terrorist act.
  • 2012: Expanded definition of “terrorist act” to include offences that threaten the country’s economic security.
  • 2019: Government can now declare an individual as “terrorist” and append their name in Schedule IV of the Act without any due process. It also empowers the Director General of National Investigation Agency (NIA) to grant approval of seizure or attachment of property

Also read: FICCI’s Insights On Illicit Trade In India 

Need for UAPA

• Counterterrorism Legislation: UAPA provides law enforcement agencies with enhanced powers to deal with individuals or organizations involved in activities that are detrimental to the country’s security.
• Designation of Terrorist Organizations: This designation empowers authorities to take stringent actions against members and supporters of such organizations. It empowers the government to ban terrorist organizations. 
  • For instance, Khalistan Tiger Force (KTF) and Jammu and Kashmir Ghaznavi Force (JKGF) are designated as terrorist organizations under UAPA.
• International Cooperation: UAPA facilitates cooperation with foreign governments in matters related to counterterrorism. The United Nations Security Council (UNSC) requires the States to take action against certain terrorists and terrorist organizations.
• Preventive Detention: This allows law enforcement agencies to take pre-emptive action against individuals who are perceived to be a threat to national security.
• Enhanced Investigative Powers: The law provides law enforcement agencies with enhanced powers of investigation, including the admissibility of confessions made to police officers as evidence in certain circumstances.

Challenges Associated with UAPA

• Curtails Fundamental Rights: An individual may be identified as a terrorist without any judicial scrutiny and even before the commencement of a trial. This is violative of the right to equality (Article 14), free speech (Article 19) and life (Article 21) of the Constitution.
  • Sajal Awasthi v Union of India claims that the right to equality is violated since the provision does not provide any detailed grounds on which one may be categorized as a terrorist.

• Guilty Until Proven Innocent: A presumption of innocence of the accused until they are proven guilty at the end of the judicial process is the basis of most of the criminal justice systems. UAPA takes away this right from individuals because even in the absence of any trial or any judicial scrutiny, the law allows a person to be declared a terrorist.
• Misuse: UAPA is created for extreme and exceptional circumstances, but it is being used routinely to suppress dissent. According to National Crime Records Bureau (NCRB) data for 2019, 1,226 cases under UAPA were filed, which indicates a hike of 33% from the year 2016.
  • For instance, Delhi police used UAPA to block websites of non-governmental organisations (including activist Greta Thunberg’s domain) campaigning against the draft Environmental Impact Assessment, 2020. 
• Vague Definitions: The definition of ‘terrorist act’ in UAPA is vague with the usage of words such as unity, integrity, and national security.
  • This allows the Act to be invoked discriminately even against so-called “Urban Naxals” and extremists using literature to propagate hate against the government.
• Impact on Civil Liberties: UAPA may infringe on civil liberties, including the right to a fair trial. 
  • For instance, in Romila Thapar v. Union of India case filed against the arrest of five activists after inter-caste violence in Bhima Koregaon, SC clarified that state cannot infringe upon an individual’s liberty based on speculation.
• Admissibility of Confessions: The Act allows confessions made to police officers to be admissible in certain circumstances which might lead to coerced confessions and undermine the principles of fairness and due process.

Also read: India And UNSC Reform 

Way Forward

• Implementing Constitutional Safeguards: The Constitution provides certain safeguards to restrain the misuse of preventive detention laws: 
  • Grounds of detention has to be informed.
  • A person can be kept in custody for 90 days for the first instance, requiring board approval (consisting of a person qualified for appointment as a High Court judge) for extension.
• Specific Definitions: There is an immediate need to define the terms pertaining to terrorist acts and activities.
  • For instance, UNSC defines terrorism as ‘terrorism would be an overt act of violence that causes death or injury to the public’.
• Recognising Dissent: There is a need to recognise that political dissent is a part of a healthy democratic nation, and laws like UAPA should be constrained to matters affecting the defence of the nation.
• Following Due Process of Law: The state should not seize more power to circumvent restraints under a stringent law.
• • The SC bench headed by Chief Justice of India D Y Chandrachud, underlined that the state using national security as a tool to deny citizens remedies is not compatible with the rule of law. 

Conclusion

The concern for the security of the nation is common for all nations. The principle of liberty exists because of the rule of law. It exists and may cease whenever the state deems it necessary only if the state’s survival is in danger and should not be used in common parlance. It is vital to strike a balance between national security imperatives and the protection of individual rights, fostering a legal framework that is effective, transparent, and accountable.

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