Criminal Law Principles in Indian Jurisprudence and the Unlawful Activities Prevention Act, 1967: A Critique
Criminal procedural law has been formulated with the interest of balancing punitive measures arising from a criminal breach of substantive law with civil liberties of citizens so as to ensure that even if ten guilty men roam free, not one innocent man is punished[i]. While formulating the Indian Criminal Procedural Code (“CRPC’), key considerations made were that the procedure must be in line with the accepted principles of natural justice, with a fair trial that is speedily disposed of while ensuring fair dealings even for the weakest sections of society [ii]. Today, with the rising use and growing mention of this in news articles, this article seeks to analyse the Unlawful Activities Prevention Act, 1967 (“UAPA”) in light of this criminal law jurisprudence.
With the repeal of Prevention of Terrorism Act, 2002 (“POTA”), many of its provisions were absorbed into the UAPA. The nominal safeguards that were available under UAPA in the context of the ‘unlawful’ organisations were not available to these ‘terrorist’ organisations. It is in this context that the Unlawful Activities Prevention (Amendment) Act, 2019 (hereby the 2019 Amendment) is relevant. These amendments serve mainly two functions, firstly, the government can now identify even individuals as ‘terrorists’ whereas earlier it could only classify organizations as such. Secondly, the investigative powers of the National Investigation Agency (“NIA”) have been increased and its scope expanded, giving it more prominence as a central police force. In this article, the first aspect of the 2019 Amendment will be critically analyzed.
Labelling an Individual as a Terrorist: The Socio-Legal Implications
The most contentious change that the 2019 Amendment has brought about has been that the centre now has the power to declare even an individual a ‘terrorist’ and enlist him under the Fourth Schedule [iii]. Prior to the amendment, an individual carrying out terrorist activities could have been prosecuted under relevant sections of the Indian Penal Code (“IPC”) and only the judiciary could declare him/her as a ‘terrorist’ after a trial and the due process under the law. The argument advanced here is that the amendment is unnecessary and negatively affects the liberties granted under the constitution.
Once an individual’s name is included in the fourth schedule, he can make an application to the central government under the section 36 of UAPA to exercise his/her power and remove his name from the fourth schedule. If the application is rejected, the individual may approach the review committee. The review committee is presided over by the central government and consists mostly of ex-judges and bureaucrats [v]. There is no time period specified for them to make their decision [vi]. It is only after the review committee rejects the application that the individual can approach the judiciary. Up until this point, all the redressal mechanisms available to the individual have a considerable amount of influence from the same body that declared him/her a terrorist in the first place. If the UAPA has been manipulated to achieve political gains, there is no independent body keeping a check on it. This is a failure of the principle of natural justice.
Moreover, even before the individual approaches the judiciary, he has already been branded as a ‘terrorist’[vii]. This labelling has been widely recognised as a serious loophole in the act, impeding the accused’s access to a free and fair trial. Spurred by the government and spread through the media, this labelling feeds the judicial mind such that bail is routinely refused and occasions of brutality and torture by the police is overlooked [viii]. For instance, in Punjab, glaring wounds on the head and a doctor’s report could not get the court to take action against the police officials that had tortured the Bharatiya Kisan Union’s president booked under the UAPA [ix]. By using multiple FIRs and hidden charges brought out into the light at a later point in time, it is found that in practice the police can influence the time the ‘terrorist’ spends in prison and prolong it [x].
Breach of Core Criminal and Constitutional Tenets
Presumption of Guilt: Some of the core tenets of criminal jurisprudence, i.e., the presumption of innocence of the accused and the right to a free and fair trial are violated under the provisions of UAPA. Section 43E of the UAPA presumes that an offence under the section 15 has been committed if any of the substances mentioned in the section 15 that have been used in the commission of such an offence is found in possession of the accused, or if by finger-prints or other “definitive evidence” the involvement of the accused is found at the site of the offence or on the substances used to commit the offence. It would be naïve to assume that such evidence actually always means that the accused is guilty – even ignoring the possibility of evidence being falsely planted to implicate the accused, there could be many other reasons for the presence of such fingerprints. Moreover, other “definitive” evidence is not defined and leaves it up to the state to decide the threshold. Thus, allowing them to manipulate the standards on a case-to-case basis. This makes it the accused’s responsibility to prove that he is not guilty – meaning that even silence could amount to an admission of guilt. This waives off the cardinal tenet of criminal law, which is that an accused person must be presumed to be innocent until his guilt is proved beyond reasonable doubt [xi].
It is an extension of this presumption of guilt that an accused who is labelled a ‘terrorist’ may be detained for up to 180 days without conviction, out of which thirty days could be in police custody. This is the longest permissible period for pre-charge detention among comparable democracies. In the UK it is fourteen days, in the US it is one day, and in Canada, it is one day. The bail provisions in the UAPA also reflect this presumption.
Unconstitutional Bail Provisions: Under section 43D of UAPA, the accused cannot be granted bail if on perusal of the case diary or a police report made under section 173 of the CRPC the Court feels that there is a reason for believing that the offence against the accused is prima facie true. This means that in cases where section 43E applies and there is a presumption of guilt, bail will not be granted. The fact that the accused has already been labelled a ‘terrorist’ means that there is an existing bias among even the judiciary as to his guilt. Coupled with such stringent bail provisions, this means that in most cases the terror-accused does not get bail [xii].
Access to justice: “Membership” or “providing support” to terrorist organisations is a criminal offence which means that even lawyers defending an organisation that has attracted the label can be considered complicit [xiii]. To determine such membership, the mere act of possessing pamphlets or attending meetings has been considered sufficient in several charge-sheets. The 2019 Amendment does not specify the framework corresponding to membership in the case of individual terrorists. Despite this, it can be assumed that similar provisions would apply, meaning that supporting such an individual would be construed to be a crime through association. This could impede full access to a lawyer, further restricting the access such an individual has to a fair trial as envisioned in Article 22(1) of the Constitution of India and section 304 of the CRPC.
The surplus of grey areas in law created by the amendment means that an individual labelled terrorist has lesser safeguards than to a terrorist organisation. This has been used by critics to highlight that, as it stands, the 2019 Amendment is not comprehensive enough to make a positive difference. It simply extends the provisions that applied to organisations to now apply to individuals without providing or addressing the structural and procedural changes that would have to be brought about to make such an amendment meaningful and compliant with the civil liberties granted in the constitution.
Besides, in treating organisations and individuals the same way, it seems to equalize Article 19(1) with Article 21 and treat the restrictions that can be placed on them the same way. Article 21 supersedes Article 19 in many ways. Justice Bhagwati noted that Article 21 “embodies a constitutional value of supreme importance in a democratic society” [xiv]. The rights awarded to an individual’s personal life and personal liberty are valued much higher than the right given to an individual to form an organisation, so much so that after the 44th amendment to the constitution, such a right cannot be taken away even at the time of an emergency [xv].
In the absence of structural and procedural safeguards laid in place to consider the individual in place of the organisation, the UAPA cannot directly be construed to apply to individuals the same way it applies to terrorist organisations. Such an application is in direct contradiction to several human rights treaties such as the ICCPR by doing away with the presumption of innocence of the individual. According to UNSCR 1456, all anti-terror laws must be in accordance with human rights conventions in the UN such as the ICCPR. The draconian provisions under the UAPA act almost like a back-door Bill of Attainder – explicitly prohibited by our Constitution [xvi]. Under this law, the accused may not be given a free and fair trial, and assume their guilt only to eventually acquit or discharge the accused in 67% of UAPA cases [xvii]. It is like the former Prime Minister Shri Atal Bihari Vajpayee said at the time of passing of the UAPA in 1967, “I cannot agree to this [Act] because any activity which is not tolerable to the Government could be called to account by giving an elastic definition of anti-national activity”.
As it currently stands, the UAPA lacks safeguards for an individual branded as a terrorist and to ensure the protection of his human rights. The only purpose this branding currently serves is to subject the individual to socio-political bias and to increase the centre’s policing powers. This ignores the possibility of misuse of these provisions by the government and does not carry adequate safeguards against misuse to be deemed to follow either the criminal law or the constitutional tenets in this country.