Mentor Comments:

• The answer must debate over the cost of declaring individuals terrorist in the UPA act, in what way it violates various rights of individuals as well as of the organizations.
• In the introduction describe the recent amendments made to the Unlawful Activities (Prevention) Amendment Act.
• The 1st part of the main body must first bring out the key changes that were made recently by the parliament.
• Then discuss how and why these changes are justified in the present context of the prevailing security environment 
• In the 2nd part, explain why human rights organizations and opposition parties are opposing the amendments and why according to them, these changes pose questions on the fundamental rights at the price of national security.
• Conclude by suggesting what needs to be done.

Answer:

The Unlawful Activities Prevention Amendment (UAPA) Bill is an anti-terror legislation that seeks to designate an individual as a “terrorist”. Recently, parliament cleared the changes to the existing law as well as some features in the National Investigation Agency (NIA)  Act. However, Opposition parties and civil liberties lawyers have criticized the bill, arguing it could be used to target dissent against the government and infringe on citizens’ civil rights.

 UAPA:

• The UAPA is an upgrade on the Terrorist and Disruptive Activities (Prevention) Act TADA, which was allowed to lapse in 1995 and the Prevention of Terrorism Act (POTA) was repealed in 2004.
• It was originally passed in 1967.
• Till 2004, “unlawful” activities referred to actions related to secession and cession of territory. Following the 2004 amendment, “terrorist act” was added to the list of offenses.

Amendments of UAPA Act:

• Designating someone terrorist: The Bill seeks to empower the central government to designate an individual a “terrorist” if they are found committing, preparing for, promoting, or involved in an act of terror.
• A similar provision already exists in Part 4 and 6 of the legislation for organizations that can be designated as a “terrorist organization”.
• The central government may designate an individual as a terrorist through a notification in the official gazette, and add his name to the schedule supplemented to the UAPA Bill.
• Approval for the seizure of property by NIA: Under the Act, an investigating officer is required to obtain the prior approval of the Director-General of Police to seize properties that may be connected with terrorism.  
• 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 would be required for seizure of such property.
• The 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.
• Insertion to the schedule of treaties: The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act.  
• The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).  
• The Bill adds another treaty to the list.  This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).

Need for the changes in the context of the prevailing security environment:

• The act aims to fight terror. 
• It strengthens the government’s powers to deal with disaffection and anarchy.
• It is often accused that the UAPA Act assigns absolute power to the central government to declare someone as a terrorist.
• Terrorism is not just fostered by the gun. Terrorism is also the spread of hate and radicalism.
• If the bill is passed, a person can be declared a terrorist when they take part in terror activities, or provide funds, or harbor a terror theory and then spread it among youth.
• The predominant duty of the government is to keep the country united against existential threats. 

Reasons for opposing the UAPA by human rights organizations:

• Terror and Terrorist not defined: The words “terror” or “terrorist” are not defined in the UAPA Bill. Section 15 of the UAPA defines a “terrorist act” as any act committed with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country.
• The original Act dealt with “unlawful” acts related to secession; anti-terror provisions were introduced in 2004.
• This is a potentially dangerous amendment which will empower officials of Union Ministry to brand any person ‘a terrorist‘, without following due process. 
• The name of such a person will be included in the ‘Fourth Schedule’ proposed to be added in the parent Act. 
• The only statutory remedy available to such a person is to make an application before the Central Government for de-notification, which will be considered by the Review Committee constituted by the Government itself.
• The amendment does not provide any legal consequences in case an individual is designated a terrorist. 
• The inclusion of one’s name in the Fourth Schedule as a terrorist per se will not lead to any conviction, imprisonment, fines, disqualifications or any sort of civil penalties. So this is simply power for the government to brand anyone as a terrorist. 
• An official designation as a terrorist will be akin to ‘civil death’ for a person with the social boycott, expulsion from the job, hounded by the media, and perhaps attack from self-proclaimed vigilante groups following.
• UAPA has been used to file shaky and insubstantial cases against selfless, dedicated human rights activists and NGOs.
• Even if the person is eventually acquitted of the charges, the delays in conducting judicial proceedings mean the case may only get heard several years after their arrest – failure to get bail means they have to spend the entire time in jail.
• The Act also interferes with the privacy and liberty of individuals contravening the provisions which protect against arbitrary or unlawful interference with a person’s privacy and home.
• The Act allows for searches, seizures, and arrests based on the ‘personal knowledge’ of the police officers without a written validation from a superior judicial authority.

Way Forward:

• This law is aimed at the effective prevention of unlawful activities associations in India.
• Its main objective is to make powers available for dealing with activities directed against the integrity and sovereignty of India.
• But there must be a distinction between an individual and an organization, and it must be kept in mind that the Constitution guarantees the former the right to life and liberty.
• There is a need to undertake structural changes to provide transparency in the proceedings to make UAPA act more accountable.
• Proper justification must be provided for the seizure of the properties and assets of an individual.
• The bill must ensure judicial solutions to the wrongly accused to safeguard the individual’s dignity, freedom, and equality in the society.
• The government must also rethink the issues pertaining to the rights of life and liberty, and federalism.

In civilized nations, from whom India has taken its Constitution and its laws, the criminal justice system is about the rights of the accused. That is also the foundation of our justice system. The very idea of the UAPA and the decision to start naming people terrorists without securing a conviction from a court of law goes against the principles of natural justice. Hence government should strike the fine balance between national security and personal security of an individual.