The Supreme Court has overturned its previous judgments and ruled 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.

Why in news?

• The Supreme Court’s earlier ruling maintained the restraints stitched into Article 19(4) on the right of citizens to form associations and unions.

What has changed with this judgment?

• Possession of literature or expression of sympathy to the cause without any real involvement in the crime can be counted as evidence of “membership” if the threshold is lower and does not require actual involvement.

What is Unlawful (Activities) Prevention Act (UAPA)?

• The UAPA is aimed at effective prevention of unlawful activities associations in India.
• Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India
• It 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Activities (Prevention) Act TADA, which was allowed to lapse in 1995 and the Prevention of Terrorism Act (POTA) was repealed in 2004.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 under the then Congress government led by former Prime Minister Indira Gandhi.
• 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 offences.

What are Unlawful Activities and Associations?

• The UAPA lays down the definitions and rules for designating an organisation as an “unlawful association” if it is engaged in certain types of activities.
• Under Section 3 of the UAPA Act, the government has powers to declare an association “unlawful”.
• The government can then issue a notification designating such an organisation as a terrorist organisation, if it believes that the organisation is part of “terrorist activities.”

(1) Unlawful Activites

• Under section 2(o) of the UAPA, an unlawful activity in relation to an individual or association means – Any action taken by such an individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise), –

1. Works for the Cession of a part of the territory of India or the secession of a part of the territory of India from the Union
2. Disclaims, questions, disrupts or is intended to Disrupt the sovereignty and territorial integrity of India; or
3. which causes or is intended to cause Disaffection against India;

• Related and ancillary acts, including financing, support or promotion of any such activities are also “unlawful activity”.

(2) Unlawful Association

The UAPA also defines an “Unlawful Association” under section 2(p) as meaning any association,–

1. which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity or
2. which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity

Cases registered under UAPA

• During 2015 to 2020, 5,924 cases were registered and 8,371 persons arrested.
• The National Investigation Agency, on its website, had listed 456 cases of which 78% involved UAPA charges.

Why UAPA is often criticized?

• Draconian: The provision of extended detention without trial, lack of transparency in the process, and limited scope for judicial intervention have also been criticized.
• Community targeting: The law has been used to suppress dissent, target minorities, and stifle freedom of speech and expression.
• Vague definitions: Critics argue that the broad definition of “unlawful activities” in the law is vague and can be used to target anyone who opposes the government or its policies.

Reported abuse of UAPA

• The PUCL report studied data from the National Crime Records Bureau (NCRB) from 2015 to 2020.
• It has found per-case conviction rate under the UAPA was 27.57% compared with 49.67% in Indian Penal Code (IPC) cases.
• The per-arrestee conviction rate was just 2.8% against 22.19% in IPC cases.
• This is far less to figure of the success of having UAPA.

Issues with UAPA

• Burden of proof:With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.
• No interim bail:As a consequence of UAPA being applied, the accused cannot even get bail.
• Traitor branding:This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under charges of sedition or criminal conspiracy and under the UAPA.
• Fake and framed cases:In multiple instances, evidence is untenable, sometimes even arguably planted, and generally weak overall.

Impact of the recent ruling

• The ruling is expected to have significant implications for individuals associated with banned organisations in India.
• It is likely that there will be more cases of individuals being charged for their membership of a banned organisation.
• While 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/

Conclusion

• This judgment is a significant step towards preventing unlawful activities and protecting the sovereignty and integrity of India.
• While the ruling has been praised by the government, civil rights advocates have raised concerns about the implications of this judgment on fundamental rights.
• It remains to be seen how this ruling will be applied and enforced in practice.

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