UAPA Act

India has a ‘Zero Tolerance Approach’ towards terrorism. It has been historically affected by this menace due to its multicultural identity and strategic geopolitical location. To tackle it, the Unlawful Activities (Prevention) Act was passed in 1967. Later by an amendment in 2004 it became India’s primary anti-terror law. It has provisions for special investigation and prosecution of terrorists for speedy redressal and ensuring national security. In 2019, it was again amended to give powers to the Central Government to designate individuals as terrorists without trial. The chief terror investigating agency i.e. National Investigation Agency was also given power to investigate terror related offences in States without having to seek their permission. The law has been controversial for its use to curb dissent and the judiciary has struck a balance in ensuring national security and freedom of speech for individuals.

Terrorism means acts committed with the objective of seriously intimidating a population, destabilising or destroying structures of a country or international organisation or making a government abstain from performing actions. Data compiled by the US state department shows that India faced more terrorist attacks in 2020 than the previous year. The US data reveals that the states in India that experienced the most terror incidents were Jammu and Kashmir with 257 incidents (37.8%), Chhattisgarh with 145 incidents (21.4%), and Jharkhand with 69 incidents (10.2%). A multi-cultural, liberal and democratic country like India, given its geopolitical situation, is particularly vulnerable to acts of terror.

UAPA, 1967 is also called the ‘anti-terror law’. It is aimed at tackling activities threatening the integrity and sovereignty of India. UAPA provides special procedures to deal with terrorist activities, among other things. It became India’s main terror law in 2004 after inclusion of provisions from the repealed Prevention of Terrorism Act, 2002. It was only then that the offence of ‘terrorism’ was added to be prosecuted under it.

• Wide Application: Applies to not only all people in India, but also citizens of India abroad, any person who commits an offence punishable under this Act abroad or persons on ships/ aircrafts registered in India.
• Designation of Terrorist: the central government may designate an individual/organization as a terrorist/terrorist organization if it:
  • Commits/participates in acts of terrorism,
  • Prepares for terrorism,
  • Promotes terrorism, or
  • Is otherwise involved in terrorism.
• List of Terrorists: The first schedule of the Act lists ‘terrorists’ organizations which are banned. These are notified in the Gazette of India, after providing sufficient grounds.
• Tribunal: Opportunity is given to banned organisations to make a case within 30 days for why they should not be banned. It is presided over by one judge of a High Court.
• Defines Offences:
  • Unlawful Activity: Which supports or incites secession and threatens the sovereignty and territorial integrity of India. Includes actions that intend to cause “disaffection” against India.
  • Terrorism: is defined in two parts in the act.
    • Firstly it includes: Any act that intends to or actually causes death or injury to a person, damage to property or threatens sovereignty, integrity, economic stability of India or any other country. It also includes acts which intend to strike terror in the hearts of people. It includes use of explosives or chemical substances, disruption of life supporting services, smuggling, counterfeiting, damage to monetary stability of India, overawing public functionaries with criminal force, detaining/ kidnapping people to compel a Government.
    • Secondly: It includes terrorist activities as given in Schedule 2.
• International Conventions Complied: Schedule 2 lists offences which are to considered to be terrorist activities as per India’s signing and ratification of International Conventions. These include
• Convention for the Suppression of Unlawful Seizure of Aircraft (1970);
• Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971);
• Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973);
• International Convention against the Taking of Hostages (1979);
• Convention on the Physical Protection of Nuclear Material (1980);
• Protocol for the Suppression of Unlawful Acts of Violence at Airports (1988);
• Convention for the Suppression of Unlawful Acts against the safety of Maritime Navigation (1988);
• Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf (1988); and
• International Convention for the Suppression of Terrorist Bombings (1997).
• Investigation Authority: The National Investigation Agency
• Special Procedure: The UAPA allows for extended detention of accused as it is a special law called upon in extraordinary circumstances.
• Detention without chargesheet can be extended to 180 days, while under routine criminal proceedings it is only 90 days.
• Presumption of Guilt: The accused is required to prove innocence under Section 43A. This is different from a routine criminal trial where the accused is presumed innocent until proven guilty.
• Onerous Conditions for Bail: Extra requirements are put to obtain bail, which can only be done once the Prosecutor has had a chance to present his case. Further, a person who is not a citizen is not entitled to bail unless there are exceptional circumstances recorded in writing.
• Admission of evidence collected through wiretapping which is otherwise routinely barred under the IT Act, 2000.
• Parole Restrictions: Prisoners convicted under the UAPA are not eligible for parole.
• Confessions Inadmissible: Under the UAPA, the confession of an accused to a police officer is not admissible as evidence in court as it is considered to be involuntary. This is in line with all criminal investigations.
• Powers of Central Government: To freeze assets of designated terrorists in Schedule 1, or suspects. Prohibits other entities to have financial dealings with these terrorists and suspects. Impound their passports, arms license and prevent travel.
• Punishment: Death or life sentences are the maximum offences along with fines. Even a minimum sentence term is provided varying from 3-5 years.
  • Punishments are for people who are members of terrorist organisations, harbour terrorists, organise terror camps, raise funds for terrorists, recruit others for terrorism purposes,

• 2004: Provisions of POTA were added to make it a Anti-Terror law
• 2008: After the Mumbai Attacks, UAPA was strengthened.
• 2019: This was done to furnish more powers to the agencies and designate individuals as terrorists.
• NIA was given power to investigate terrorist cases in any state without permission of State Government.
• Central Government can designate individuals as terrorists without trial, while previously only groups could be.

• Protect National Security: Special powers are needed to tackle evolving terrorists who have technology and other tools to threaten India. It ensures national security and integrity of india. Cyber terrorism is a growing challenge. Harsh measures are to be taken against terrorists as they commit heinous crimes like the 1993 Bombay blasts, 2008 Mumbai Attack, 2023 Poonch Rajouri Attack etc.
• Deterrence: UAPA's provision for preventive detention is crucial for preventing potential threats before they materialize, especially in cases where there may not be enough evidence for a formal trial.
• Align with International Obligations: to counter terrorism.

• Delay in Chargesheets: Chargesheets in most cases were filed after a delay of 1 year. And in upto 15% cases delay was uptill 2 years.
• Low Conviction Rate & Excessive Use: only 2% people who are arrested are convicted, while only 28% people against whom chargesheets are filed are convicted. It shows excessive and liberal use of the Act to detain people.
• Vague Offences: Terrorism is not defined clearly allowing government to use the provisions widely on dissenters.
• Arbitrary Powers of Arrest: as UAPA allows to overrule standard procedures in Criminal Procedure Code.
• Excessive period of detention
• Discretionary bail from judiciary
• Fundamental Rights violated: Infringement on right of freedom of expression and association.
• Curbing legitimate political dissent. If seditious statements are made then prosecution should be under Indian Penal Code, and not under UAPA where extraordinary powers are given to the police. Detention merely on grounds of apprehension which can lead to inciting fear in the hearts of people preventing dissent.

• The National Investigation Agency (NIA) was constituted under the NIA Act of 2008 to probe terror attacks in any part of the country.
• Terror Funding and Fake Currency (TFFC) Cell has been constituted in National Investigation Agency (NIA)
• National Intelligence Grid or NATGRID : to analyse and disseminate data and enhance counter terrorism capabilities.
• Multi-agency centre for Counter Terrorism whose mandate is to share terrorism related intelligence inputs on a day to day basis.
• Combating Financing of Terrorism (CFT) Cell in the Ministry of Home Affairs deals with policy matters on the combating of terrorist Financing and Fake Indian Currency Notes (FICN).
• International Obligations:
  • India has implemented the UNSCR 2396 by manning its borders to identify and biometrically screen suspected terrorists at ports of entry. It freely shares terror related information for security of the world.
  • India is a Member of Financial Action Task Force (FATF), an inter-Governmental Body, responsible for setting global standards on Anti- Money Laundering (AML) and Combating the Financing of Terrorism (CFT)
  • India is also a member of FATF Styled Regional Bodies (FSRBs) such as Eurasian Group (EAG) on Combating Money Laundering and Financing of Terrorism and Asia Pacific Group on Money Laundering (APG). India also participates actively in the meetings of the BIMSTEC Subgroup on Combating the Financing of Terrorism
• Anti Hijacking Act, 2016: to enforce the Hague Hijacking Convention and the 2010 Beijing Protocol Supplementary to the Convention, to which India is a party.
• Bhartiya Nyay Sanhita, 2023: Section 111 defines a terrorist act which is done with intent to threaten the integrity and security of India, to intimidate the public or disturb public order
• ‘No Money for Terror (NMFT)’ conference was organized by Ministry of Home Affairs in 2022

Terrorism is the planned, organized and systematic use of violence as a means of coercion for political, religious or ideological purposes. It is also sometimes supported by external forces like the Mumbai Terror Attacks in 2008, Khalistan Movement in Punjab and J&K separatist movement get support from Pakistan across the border. Hence comprehensive initiatives have to be taken to nab the perpetrators under the UAPA Act, cut off their monetary supply and training facilities and lastly bring deep and lasting peace through development and welfare initiatives.

Supreme Court has struck a balance in upholding the security of the State and fundamental rights of Citizens. In the KA Najeeb Case (2021) bail was granted on the grounds that the accused was under arrest for a long time and the trial was still far from being concluded. The Delhi High Court has stated that mere protests should not be considered to be terrorist activities. UAPA should not be used to repress dissent indiscriminately.

If seditious statements are made then prosecution should be for that, and not under UAPA where extraordinary powers are given to the police. Sanctity and restrained use of UAPA provisions is important to maintain its efficacy and expeditious trials for actual terrorists in the country. It must be ensured that, in the interests of justice and security, the measures and provisions to combat terrorism do not go beyond what is essential.