CRITICAL ANALYSIS OF UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2019 - BY: RAJESH SHARMA

This act provides for the more effective prevention of certain activities of individuals and associations. Recent amendments in the UAPA Amendment Act 2019, allows notifications of an individual as “terrorist”, while under the act of UAPA, 1967, only organizations and associations were notified as terrorists’ organizations. Declaring an individual as a terrorist is a clear violation of Fundamental Rights provided under A.14, 19, & 21 of the Constitution of India. The reason behind this violation is the insertion of the clause “Individual” in section 35 of UAPA, 2019. It does not specify detention grounds or reasons based on which an individual can be termed as a terrorist. Conferring and exercising such an arbitrary power without any limits and bounds amount to a violation of Art.14 of the Constitution of India. The government can now declare any person without giving him a fair chance to prove his innocence or levy the alleged charges against such person declare terrorist. This defines the basic principle of natural justice which is the building stone of the Indian Judicial system. The provision of this act in a way snatching the equality of an alleged individual targeted as a terrorist by the central govt. irrespective of the available (alleged) evidence. The right curtailed from an individual without providing justification for the arrest and detention to the detainee violates the basic ideology of the fundamental rights which are being deliberately scrapped through mere apprehension of the central Government that he “MAYBE” involved in terrorist activities, which is just an apprehension without relevant evidence. On such a categorization of an individual as a terrorist, the UAPA 2019, does not allow the opportunity to present his case for a fair trial. And then such an individual is let to live on the whims and caprice of the society ruining the career, reputation, and afterlife of such person in the society. This act also violates the right to reputation of the alleged individual viz. an integral part of Right to Life and Personal Liberty through tagging and terming individuals as terrorists even before the trial and proceedings commenced. Here the overlapping of the power can be witnessed because the authorities other than the judiciary take the cognizance of declaring the individual as a terrorist which affects his family and the society as well. The government without providing fair trial and providing secret witnesses sometimes may lead to a conspiracy against an individual because there’s no verification of the proceedings and the parties to it. The proceedings are carried on the whims and fancies of the government, which is again promoting injustice against the alleged person. Here the basic principle of justice is defied i.e. innocent until proven guilty because the government had already decided the role of the alleged person as a terrorist without conducting proper proceedings. This denies the role of the judiciary into these sensitive matters which proves the legislature’s superiority over the judiciary. The judges aren’t allowed to apply their judicial conscience to verify the merits of the case. This kind of legislation promotes the direct contravention of the legislature into the matters regarding fundamental freedoms guaranteed by the Constitution of India that are indispensable for the functioning of Democracy. Governments exercising absolute control over the liberty of its citizens are not celebrated as democratic rather autocratic with ambitions that are farther than the principles of the Democratic Governor. The 2019 amendment of this Act affects the freedom of the people in a way that oppositions cannot speak freely for their cause and arguments against the government with an apprehension of being declared terrorist by the government if they suspect of any exposure by the people or any individual. They’re denied to exercise their non-exhaustive fundamental rights such as demonstrations and protest, denying public mobilizations of opinions, irrespective of nature whether they are critical in nature. These extraordinary legislations such as UAPA, 1967, take us back to the period of colonial times. In 1908, the Criminal Law Amendment act firstly used the term “unlawful association” to criminalize the Indian National Movement against the British establishments. Ironically, post-independence, the govt. succeeded in using the same powers to curb certain fundamental rights guaranteed by Art.19 of the Constitution of India. The definition makes it clear that ‘unlawful activities’ does not involve any physical act of violence but it provides a wide spectrum of interpretation due to ambivalent and vastness of the crimes that it can penalize any view, belief, thought, person, that may be threatening to the those in power with fear of their exposure and blunder. This act gives them ultimate control to practices that are not legal in nature rather corruptive. Unlimited Power corrupts the person. As the unlawful activities are defined in the section, any “unintended” or “unintentional” disaffection can be penalized if the government feels feeble to do so. Here the degree of disaffection has no limitations; it can be moulded into any terminology and logic. A person involved with a terrorist organization or came across them accidentally would also be declared terrorists according to the recent amendment. According to section 38 of UAPA 1967 act, a person, who associates himself, or professes to be associated, with a terrorist organization with the intention to further its activities, commits an offense relating to membership of a terrorist organization, if going by this definition e.g. If a doctor treating a person who is a member of a banned organization can also be taken into consideration and charged as a member of the organization, but in reality, he had no business to do with the organization, he was just professing his duty as a doctor. This act deliberately gives unlimited power to Police to exercise over the alleged terrorist, and to the countrymen as well. The central government holds absolute power over police and can without the permission of any state enter and conduct investigations and proceedings against any person. This is a strong interference into the circumference of power of an individual state.The act also allows detention of alleged individuals without the filing of any charge sheet to 180 days while the general provisions allow the detention up to 90 days only and police custody up to 30 days limited. This act creates a strong and irrebuttable presumption against bail and merely relied upon the evidence seized allegedly by the authorities. The alleged individual cannot claim for either bail or an anticipatory bail for a crime he might not have committed or committed unintentionally which penultimately is a clear abuse of absolute power of the authorities and imposing sanctions as they deem fit to trap or arrest the individual with such branding. Ambiguity arises when the person allegedly arrested is dependent upon the whims and fancies of an officer, who can fabricate enough charges against such an individual irrespective of the nature of the crime he allegedly committed. The officer of the central government is not a judicial officer and does not hold such authority to detain the individual on fabricated or alleged grounds, violating principles of natural justice by not providing a fair trial and branding such person as a “TERRORIST” on alleged grounds. The act is silent upon whether there should be any qualifications or materials available for the central government before declaring any person a “terrorist”.