Countering terrorism
- Banning organisations and designating individuals as terrorists
- Preventing terrorists from circumventing the law
- Empowering officers in the rank of Inspector to investigate cases
- Requiring investigations to be completed within 90 days
- Allowing the seizure of property connected with terrorism without approval from the Director General of Police when investigations are conducted by NIA officers
- It was added through the UAPA Amendment Act, 2008 in the aftermath of the Mumbai terror attacks.
- This section requires a court to deny bail to the accused if there are reasonable grounds to believe that the case against the accused is prima facie true.
- The above-mentioned provision made bail difficult to secure since it required the Court to assess the guilt of the accused only by looking at the charge sheet prepared by the National Investigation Agency (NIA).
- The accused cannot provide any evidence outside the chargesheet in their defence.
Meaning of “Prima facie” in the context of section 43D (5) of UAPA
- The Supreme Court in 2019 in the Zahoor Ahmed Shah Watali Case interpreted “prima facie” to mean that the courts must not analyze evidence or circumstances. Instead, it should look at the ‘totality of the case’ presented by the State.
K. A. Najeeb Vs Union of India, 2021
- The SC held that section 43D (5) of UAPA does not oust the ability of constitutional courts to grant bail on grounds of violation of fundamental rights under Part III of the Constitution.
- Through this judgment, the SC has provided some relief from the stringent bail provision of UAPA, but it did not overrule its earlier judgment in the previously mentioned Watali Case.
Amendments In UAPA Act, 1967
2004: Criminalized indirect support for a terrorist organization, including raising funds for a terrorist act or being a member of a terrorist organization.
2008: Broadened the definition of “funds” to encompass a wider range of financial activities related to the financing of terrorism offences.
2012: Expanded the definition of a “terrorist act” to include offences that pose a threat to the country’s economic security.
2019: Empowered the government to designate individuals as terrorists, not just organizations.
- Changed the approval authority for the seizure of property connected with terrorism; now, the approval of the Director General of the National Investigation Agency (NIA) is required instead of the Director General of Police.
- Empowered NIA officers of the rank of Inspector or above to investigate cases.
- Included the International Convention for the Suppression of Acts of Nuclear Terrorism (2005) in the Schedule under the Act.
Challenges
- Fundamental Rights Infringement: The UAPA Act, by allowing detention for up to 180 days without a formal charge sheet, infringes upon fundamental rights, including those enshrined in Articles 14, 19(1)(a), and 21.
- Contrary to the Presumption of Innocence: The Act contradicts the principle of “innocent until proven guilty,” a fundamental tenet of justice, by not upholding this right.
- Excessive Discretionary Authority: The lack of objective criteria for classifying individuals as terrorists gives the government significant unchecked authority, risking misuse of power.
- Ambiguity and Unclear Definitions: Vague definitions of terms like “terrorism” and a broad interpretation of ‘unlawful activity’ lead to confusion and differing interpretations, impacting the law’s effectiveness and fairness.
- Concerns in the Appeals Process: The establishment of a government-appointed three-member review committee, which may include serving bureaucrats, raises concerns about the independence and fairness of the appeals process.
- Low Conviction Rates: A low conviction rate, with less than 3% of cases registered under the UAPA Act resulting in convictions between 2016 and 2020 (as per a PUCL report), highlights significant challenges in effectively prosecuting cases under the Act.
Way Forward
- Review and Reform: Consider a comprehensive review of the UAPA Act to address concerns related to fundamental rights and discretionary authority. This could involve amending the law to establish clearer definitions, stricter oversight mechanisms, and provisions that protect individual rights.
- Presumption of Innocence: Uphold the fundamental principle of “innocent until proven guilty” by amending the UAPA Act to ensure that individuals have the opportunity to present their case before arrest and receive a fair trial within a reasonable time.
- Judicial Review: Encourage active judicial review of cases under the UAPA Act to ensure that legal proceedings adhere to the principles of justice and fairness.