Open Access Research Article
UNRAVELLING THE LOW CONVICTION RATE AND UNVEILING FLAWS IN THE UNLAWFUL ACTIVITIES PREVENTION ACT
Published Paper
Article Details
UNRAVELLING
THE LOW CONVICTION RATE AND UNVEILING FLAWS IN THE UNLAWFUL ACTIVITIES
PREVENTION ACT
AUTHORED BY - P RANJITA,
School of Law, CHRIST (Deemed to be
University)
Abstract
The Unlawful
Activities Prevention Act (UAPA) is an important legislation in India designed
to combat acts of terrorism and unlawful activities. This research paper seeks
to investigate the persistent issue of low conviction rates in cases filed
under the UAPA and to unveil the inherent flaws in the legislation. In recent
years, there has been growing concern regarding the potential misuse of the
UAPA, leading to the wrongful targeting of individuals and communities. This
study employs a multi-disciplinary approach which includes, but does not limit
to, legal analysis, case studies, and empirical research, to analyse the
various factors contributing to the low conviction rate. The research uncovers
a range of critical issues, including the broad and ambiguous language of the
UAPA, which allows for its misapplication and abuse. It examines the impact of
preventive detention, prolonged incarceration, and the denial of bail on the
lives of the accused. By examining a series of UAPA cases and their outcomes,
this paper identifies patterns of overreach by law enforcement agencies and
shortcomings in the legal process. The research also highlights the
disproportionate burden placed on marginalised communities and religious
minorities, who are often the primary targets of UAPA cases. In conclusion,
this research paper calls for a comprehensive review of the UAPA, suggesting
necessary amendments to bring it in line with international human rights
standards and to ensure that it serves its intended purpose of combating terrorism
without compromising the principles of natural justice and fairness. It also
underscores the importance of safeguarding civil liberties and the presumption
of innocence in the fight against unlawful activities.
Keywords: UAPA, Terrorism, Low Conviction,
Misuse, Lives
Introduction
The Unlawful Activities
Prevention Act (UAPA) is a significant piece of legislation within the legal
framework of India, designed to address the critical concerns of national
security, terrorism, and unlawful activities. Enacted in 1967, the UAPA has
undergone several amendments, reflecting the evolving threats and complexities
of modern-day security challenges. It empowers law enforcement agencies to
investigate, prevent, and prosecute activities that pose a threat to the
sovereignty and integrity of India.
The Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as UAPA), often considered the
Indian counterpart to similar anti-terrorism laws in various countries, was
crafted to provide law enforcement agencies with robust legal tools to combat
terrorism and unlawful activities. It empowers the government to proscribe
organisations and individuals suspected of involvement in unlawful activities
and permits preventive detention in specific circumstances. It also establishes
procedures for the prosecution of individuals charged under the Act, with the
primary objective of protecting the nation and its citizens from acts of terror
and subversion. Over the years, the UAPA has played a crucial role in
addressing national security concerns, and it has been instrumental in
dismantling and prosecuting terrorist networks.
The UAPA, a pivotal legal
instrument in India's fight against terrorism and unlawful activities, has
consistently come under scrutiny for its low conviction rates and concerns
about potential misuse. Enacted in 1967 and subsequently amended multiple
times, the UAPA empowers law enforcement agencies to combat terrorism and
subversion. However, as time has passed, questions have arisen regarding the Act's
efficacy, fairness, and compatibility with international human rights
standards. As a tool intended to safeguard national security, the UAPA must
strike a delicate balance between protecting society from unlawful activities
and upholding the principles of justice, fairness, and individual liberties. In
recent years, concerns about the potential misuse and overreach of the UAPA
have intensified, raising fundamental questions about the scope and application
of the law. While it is crucial to combat terrorism and unlawful activities
effectively, it is equally imperative to ensure that the legal framework
underpinning these efforts respects the fundamental rights and dignity of
individuals accused under its provisions.
The focus of the paper is
on three primary issues, namely, a) The low conviction rate under the UAPA and
the identification of the flaws in the Act that contribute to this problem; b)
The implications of the low conviction rate under the UAPA for the rule of law
in India; c) The improvements that can be made in the Act to ensure that it is
used effectively to prosecute those who commit unlawful activities. It starts
with
In conclusion, this paper
seeks to provide a comprehensive understanding of the challenges and
limitations of the UAPA while underlining the necessity for a thorough review
of the legislation. The overarching goal is to advocate for amendments that
bring the UAPA in line with international human rights standards, ensuring that
it effectively counters unlawful activities without compromising the principles
of justice, fairness, and the presumption of innocence.
Historical Backdrop of
the UAPA:
The roots of the UAPA can
be traced back to the colonial times when the British Raj introduced the
Criminal Law Amendment Act, which first defined the concept of “unlawful
association”, to criminalise Indian freedom fighters. The provisions of the Act
was kept even after independence but the government used it against their own
citizens who went against the policies of the ruling party at the time, i.e.,
the Indian National Congress. In the subsequent years, the Indian Judiciary, in
cases like VG Row V. State of Madras, AK Gopalan V. State of Maharashtra, and
Romesh Thapar V. State of Madras, ruled that citizens' fundamental rights can
only be curtailed in extreme circumstances, making Section 124A of the Criminal
Law (Amendment) Act unconstitutional. The 1st amendment was introduced after
this to overcome the restrictions put by the judiciary and over the years the
arbitrariness of the government only increased.
The 16th amendment led to
the introduction of the Unlawful Acts (Prevention) Act, which was withdrawn due
to protests but the second draft was finally enacted into law in 1967. The Act
gave arbitrary powers to the Central Government. Section 5 of the Act gave them
the power to ban organisations without giving any justification for doing the
same. The freedom to form associations is protected under Article 19 of the
constitution and this was a violation of the same. The Act also constituted a
Tribunal which gave more power to the Central Government to deem any person or
organisation a terrorist or a terrorist organisation. The UAPA was only the tip
of the iceberg. This legislation led to more draconian laws like the Terrorist
and Disruptive Activities (Prevention) Act (TADA), 2002 and the Prevention of
Terrorism Act (POTA), 2002 which was introduced with the intention to prevent
anti-state activities in states in India. TADA and POTA were controversial
statutes used to suppress dissidents, but were repealed due to media and
judicial pushback. The government amended the 1967 UAPA bill in 2004 and 2008
to incorporate controversial aspects of these acts in it.
In 2012, the National
Counter Terrorism Centre (NCTC) was set up under the UAPA which further
increased the arbitrary power given to the government. The NCTC has the power
to arrest, search or detain any person or organisation that they suspect to be
involved in terrorist activities without obtaining prior permission. The latest
amendment to the UAPA was passed in 2019.
Low Conviction Rate
under the UAPA
As per the National Crime
Records Bureau (NCRB) data, 8,521 UAPA cases were reported between 2014 and
2021. In these cases, the accused can either be convicted, discharged or
acquitted. If an accused is discharged, they can be rearrested after further
inquiry since discharge usually means that there is no prima facie evidence
against the accused. Between 2014 and 2021, of the total cases that saw an end
of trial, an average of 72.4% were discharged or acquitted and 27.5% saw
convictions. The low conviction rate under the Act is alarming and the central
problem lies in the manner the legislation is framed and the arbitrary power
that is provided to the government.
The definition of a terrorist
act provided by UAPA differs from that provided by the United Nations (UN)
Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms
while Countering Terrorism. The three mandatory elements that has to present in
order to declare an act a terrorist act, under the Special Rapporteur are, a)
deadly means used; b) intention to cause fear among the people or force the
government or any other international organisation into doing or abstaining
from doing a certain act; c) an aim to promote an ideological goal. Under the
UAPA, however, the definition is very ambiguous. Section 15 of the Act defines
a terrorist act as an act which includes the death of, or injuries to, any
person, damage to any property, etc. Every citizen has a responsibility to know
the criminal law, and if the law is not defined with greatest accuracy,
citizens are not given a fair warning. The fundamental concept of the rule of
law ensures that those subject to the law understand the law and its practical
ramifications. Such vaguely defined phrases place more burden on the courts
when interpreting terms on a case-by-case basis, leaving citizens in a state of
confusion as to what really constitutes an offence.
The number of cases
pending investigation is continuously rising at an yearly average pace of
14.38%. The cases pending investigation were 1,857 in 2014, which rose by 37%
to 4,021 in 2020 and now, according to latest data, the number was 3,998 in
2021. At the end of 2021, as many as 2,041 cases were pending investigation for
more than three years. As many as 172 cases had not gone into trial for a
decade or more, in 2021. Presumption of innocence is a principle that is
followed by the Indian judicial system. Article 21 enables the State to violate
the right to life and personal liberty only if a fair, just, and reasonable
judicial procedure has been followed. The connection between Article 21 and the
presumption of innocence can be traced back to the 'just, fair, and reasonable'
criterion. However, under the UAPA, people arrested under the UAPA can be held
for 180 days without even being charged, which clearly breaches Article 21 of
the Constitution. The data above indicates the rising number of cases under
UAPA that are pending. Most of these detainees are not even given a chance at
trial for a long period of time which is a violation of their fundamental
rights under Article 14, 19 and 21.
Impact of low
conviction rate on accused individuals
The low conviction rate
under India's UAPA has a significant impact on accused individuals. The Act
allows law enforcement authorities to imprison people for longer periods of
time without trial, which, combined with the low conviction rate, results in
prolonged pre-trial detention. Section 43-D of the Act limits bail, allowing authorities
to imprison someone for up to 180 days without bringing official charges, which
can take a toll on the psychological and emotional well-being of the accused.
The uncertainties and personal turmoil they experience during this time are
compounded by the broader consequences they face.
Accused individuals, even
if acquitted in UAPA cases, often experience social stigma and isolation. The
stigma associated with being accused under the Act may persist, affecting an
individual's opportunities, relationships, and future prospects. The Act’s
broad definition of "unlawful activity" (Section 2(o)) allows a wide
range of acts to fall under its purview. This can tarnish their reputation and
make it challenging to reintegrate into society, leading to social ostracism
and impacting their personal and professional relationships. In addition to the
social stigma, accused individuals may face significant economic hardships. The
UAPA provides for asset freezing under Section 38, which allows authorities to
seize and freeze the assets of accused individuals. This can lead to job loss
and financial instability, resulting in a further burden for both the accused
and their families.
Reforming the UAPA for
Effective Prosecution and Civil Liberties
An important change that has
to be brought about in the UAPA is to ensure that proper and meticulous
investigations are conducted in UAPA cases. There must be adequate
investigation conducted prior to detaining or arresting a person under the Act
because arresting them arbitrarily can lead to serious implications like
violation of their fundamental rights and adverse effects on their mental
well-being.
Ambiguity within the UAPA
also poses a significant challenge. To address this issue, it is imperative to
clarify the definitions and interpretations of terms used in the Act. This
clarification not only benefits law enforcement but also ensures that the
accused have a clear understanding of the charges against them. A transparent
and consistent legal framework minimises potential misuse, as it prevents
overly broad or vague interpretations of the Act's provisions.
Moreover, it is essential
to recognize that the UAPA operates within the broader context of the criminal
justice system. As such, systemic issues affecting the entire system, such as
delays in trials, should also be addressed. Streamlining the trial process and
ensuring that cases move through the legal system in a timely manner is
paramount. Delays can undermine the effectiveness of the UAPA by causing cases
to languish, potentially leading to a loss of critical evidence, witness
recollections, and, importantly, prolonged pre-trial detention. Timely trials
not only protect the rights of the accused but also contribute to higher
conviction rates when cases are adjudicated based on the strength of evidence
and legal arguments.
Nevertheless, as these
enhancements are pursued, it is crucial to maintain a delicate balance between
the imperative for effective prosecution and the protection of individual
rights and civil liberties. Striking this balance is a fundamental challenge in
the context of the UAPA, given its potential for misuse and the potential
infringement on fundamental rights. Comprehensive reforms must be guided by the
principles of justice, fairness, and the preservation of civil liberties to
ensure that the UAPA fulfils its intended purpose without compromising the rule
of law.
Implications on the
Rule of Law
The Unlawful Activities
Prevention Act (UAPA) in India carries significant implications for the rule of
law and individual rights in the country. One of the foremost concerns revolves
around the arbitrary powers it grants to the state. The UAPA allows the
government to declare associations as unlawful or label individuals as
terrorists. This, in turn, has serious ramifications for individuals' rights
and freedoms, as these designations can result in arrests, detentions, and
curtailment of civil liberties without proper checks and balances.
Moreover, the UAPA's
impact extends to the prison justice system in India. Its provisions, namely,
sections 13, 15, and 43(D), restrict the freedom of Indian citizens and have
contributed to a notable increase in the prison population. This has
consequently led to concerns about prison overcrowding and the conditions and
treatment of prisoners. The implications of the UAPA on the prison system
underscore the need for careful consideration of its provisions and the balance
between national security and individual rights.
The broad definitions and
provisions within the UAPA can also lead to complexities within anti-terrorism
law. For example, the Act's provisions can undermine the presumption of
innocence, a cornerstone of criminal law. Some sections of the UAPA shift the
burden of proof to the accused, which reverses the principle of "innocent
until proven guilty." This contravenes fundamental principles of justice,
and any law that does so raises concerns about its compatibility with the rule
of law.
Furthermore, the UAPA has
faced criticism for its potential use as a tool to stifle dissent. The Act
includes provisions that can be interpreted to criminalise acts causing
'disaffection against India.' In practice, this has been construed to encompass
dissent, critique of the government, and peaceful political activism. The
expansive scope of the UAPA's definitions raises concerns about freedom of
expression and the right to criticise the government, which are essential
aspects of democratic societies.
In conclusion, while the
UAPA serves vital national security interests, its implications for the rule of
law and individual rights in India warrant careful scrutiny and potential
reform. Balancing the need to combat unlawful activities with the protection of
fundamental rights and the principles of justice and fairness is a complex and
essential challenge. Addressing these concerns is paramount to ensuring that
the UAPA operates in a manner consistent with the rule of law and international
human rights standards.
International
benchmarks
The Unlawful Activities
(Prevention) Act (UAPA) in India and anti-terrorism legislation in other
countries share common goals of national security and countering terrorism.
However, the application and implications of these laws vary based on each
country's unique socio-political context. A comparative analysis between the
UAPA and the USA's Patriot Act reveals distinct differences in the deployment
of anti-terrorist legislation. Both laws grant substantial powers to the state
in the name of national security. However, the UAPA has been criticised for its
broad definitions and discretionary powers, leading to potential misuse and
infringement of individual rights and freedoms. In contrast, the Patriot Act,
while also contentious, has specific provisions regarding surveillance and
intelligence gathering to prevent terrorist activities.
Conclusion
The Unlawful Activities
(Prevention) Act (UAPA) has been a subject of significant concern due to its
low conviction rates and several identified flaws. Our examination revealed
that these issues stem largely from systemic challenges within the legal and
criminal justice system, as well as specific provisions within the Act itself.
The Act's emphasis on punitive rather than preventive measures has led to a
reactive approach in dealing with unlawful activities. This not only influences
the Act's effectiveness but also impacts the prison justice system, leading to
an increase in prison population and related challenges. The Act has also been
criticised for being a tool to stifle dissent, further raising concerns about
its implications for individual rights and freedoms.
Addressing these issues
necessitates a comprehensive approach that includes clarifying the Act's
provisions, ensuring proper investigation and prosecution processes, and
focusing on preventive measures and rehabilitation. It is crucial, however,
that any reforms to the UAPA strike a balance between national security
interests and the protection of individual rights and liberties, as the rule of
law demands. Any efforts to unravel the low conviction rate and unveil flaws in
the UAPA must be guided by the principles of justice and fairness, and
adherence to human rights guidelines.
Article Information
UNRAVELLING THE LOW CONVICTION RATE AND UNVEILING FLAWS IN THE UNLAWFUL ACTIVITIES PREVENTION ACT
Authors: P RANJITA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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