- Why in News- A three judge Bench of the Supreme Court clarified that a person who “is or continues to be” even a “mere member” of a banned organisation is liable to be found criminally liable under the Unlawful Activities (Prevention) Act (UAPA) for acting against the sovereignty and integrity of India.
- With this judgment, the Supreme Court has set aside a series of its own judgments which had concluded that “mere membership” — unlike “active membership” — of an unlawful association or organisation did not make a person criminal or a terrorist.
- Justice Shah reasoned that an organisation is declared unlawful and banned only after the Centre is “satisfied that it is indulging in unlawful activities against the sovereignty and integrity of India”.
- The declaration of an organisation or association as unlawful is publicly notified by the Centre under Section 3 of the UAPA.
- But a person choosing to continue as a member despite knowing about the ban is acting against the sovereignty of the nation. Such a person cannot later claim that the law has a chilling effect on his fundamental right of association by imposing criminal liability on him.
- Section 10(a)(i) of the UAPA deals with membership of an unlawful association.
- (a) a person, who — (i) is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine”.
- The court clarified that persons who had left the organisation and were not members at the time it was declared unlawful, cannot be held liable under Section 10(a)(i) of the UAPA.
Unlawful Activities Prevention Act (UAPA)
- It was passed in 1967.
- The Act provides special procedures to deal with terrorist activities, among other things.
- Unlawful activity means any conduct which constitutes a crime or which contravenes any law whether such conduct occurred before or after the commencement of this Act and whether such conduct occurred in the Republic or elsewhere.
- Section 15 of the UAPA defines “terrorist act” and is punishable with imprisonment for a term of at least five years to life. In case the terrorist act results in death, the punishment is death or imprisonment for life.
- The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
Issues with UAPA
- Criminalizing Thoughts: It criminalizes mere thoughts and political protests that cause “disaffection” with the state. It is an assault of citizens’ right to expression which is also a collective right of groups and unions to disseminate their views.
- Ignoring Fundamental Rights: It can simply be used to bypass fundamental rights and procedures. For instance, those arrested under UAPA can be incarcerated up to 180 days without a charge sheet being filed. It thus directly violates Article 21 of the constitution.
- Highly Discretionary: It confers upon the government broad discretionary powers and also authorizes the creation of special courts with the ability to use secret witnesses and to hold closed-door hearings.
- Hindering dissent: It is being used to suppress dissent through intimidation and harassment thus threatening the very existence of public debate and freedom of press and criminalizing the performance of civil liberties.
- Parliamentary Powers: The issue still remains whether the Parliament under any circumstance can classify the individual as terrorist only because it believes him to be involved in terrorism without any trial or whatsoever.
- Restricts Freedoms: UAPA empowers the parliament to restrict the rights and freedoms of citizens to protect ‘the sovereignty and integrity of India’.
- Stringent Provision of bail: The standard for bail under the UAPA is that it cannot be granted unless the court is of the view that the accused is innocent of the alleged offence. This is a prima facie standard, which means that the onus of proof of innocence, even for the purpose of obtaining bail, is effectively reversed. It is for the accused to show, for the purposes of bail, that he is innocent.
- Sharp Rise in Use: This caution is significant given the sharp surge in the state’s use of this provision in a sweeping range of alleged offences - against tribals in Chhattisgarh, those using social media through proxy servers in Jammu and Kashmir; and journalists in Manipur among others.
Unlawful Activities Prevention Act (UAPA) Amendment Bill 2019
- The Bill additionally empowers the government to designate individuals as terrorists on the same grounds.
- Approval for seizure of property by NIA: The Bill adds that if the investigation is conducted by an officer of the National Investigation Agency (NIA), the approval of the Director General of NIA(not DGP) would be required for seizure of such property.
- Investigation by NIA: Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.
- The Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.