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Objections To The Amendments of UAPA

The burden of proof usually falls on the police, but under the UAPA, the burden is on the person accused to prove his innocence.


Draco was a Greek legislator in the 7th century BC, who is credited to have introduced the first system of oral law and blood feud by a written code to be enforced only by a court of law. His laws were particularly harsh and so till this day the adjective draconian refers to laws (or their application) excessively harsh or severe. Minister of Home Affairs, Amit Shah introduced ‘The Unlawful Activities (Prevention) Amendment Bill 2019’ in the Lower House of Parliament on the 8th July 2019. This Bill aims to amend the existing Unlawful Activities (Prevention) Act – known as UAPA which when first introduced in 1969 has been amended numerous times as in 1972, 1986, 2004, 2008 and 2012.

One of the most controversial aspects of this “latest” amendment is that besides organisations that prepare, promote, commit and are involved in terrorism, the government will now be authorised to designate individuals too on the same grounds. Although Shah says that the Bill is meant to align domestic law with international obligations as mandated in several conventions and Security Council resolutions, one fears that this will lead to abuse and violations of the fundamental rights of an individual.

Objections to the Amendment

Congress MP – Shashi Tharoor opposed the Bill in the following words: “These are very ill considered and hasty bills that have been brought to the House…if there is a lone wolf terrorist, there are ample powers to arrest him…the bill opens up a great deal of scope for misuse. Once a person is unilaterally declared a terrorist by the government the burden is shifted on the individual to prove his innocence before the review committee and an organisation can do it but how can an individual do it?”

Another MP from the RSP – N.K. Premchandran asserted that the fundamental rights of an individual cannot be forgone in the name of tackling terror. The Indian Union Muslim League (IUML) – Member of Parliament, P.K. Kunhalikutty correctly pointed out: “The UAPA is not meant for convicting people, it used to detain them. The burden of proof usually falls on the police, but under the UAPA, the burden is on the person accused to prove his innocence. Eventually, acquittals might happen but a considerable time passes by and the person’s life is ruined. The accused has to go through a long legal process and incarceration by the time he is acquitted. This could change his life and cause problems in re-integrating him into society. The scars of such an experience can last for a long time in the mind of the victim.”

The draconian part

According to experts, UAPA has some particularly harsh aspects that are cause for concern. Earlier laws like TADA (Terrorist and Disruptive Activities (Prevention) Act) and POTA (Prevention of Terrorism Act) had a sunset clause which means that the law would cease to have any effect (expire) after a fixed point of time. Both TADA and POTA had a time limit of 2 years after which they had to be sent to Parliament for being renewed.

The other issue is that of anticipatory bail. Delhi based advocate Sarim Naved writes in myLaw blog: “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. Bail applications are routinely denied on the ground that a decision needs to first be taken on whether to frame charges. And once charges are framed, bail applications are denied on the application of the prima facie standard. It usually takes years after arrest and commencement of prosecution for bail to even be considered. Since the prosecution has such an incentive to delay matters, they often remain in limbo for years. Few, if any, precedents exist for the grant of bail under the UAPA.”

Fundamental rights in danger

Clause (3) of Article 20 of the Indian Constitution says – “No person accused of any offence shall be compelled to be a witness against himself.” This clause is inspired by “Nemo tenetur seipsum accusare”, which is a legal maxim in Latin stating that no one is bound to incriminate or accuse himself. The accused must be presumed to be innocent unless the prosecution is able to prove his guilt. By allowing detention up to 6 months without a charge sheet and near impossibility of getting bail and the extended period of time (sometimes more than 20 years) of incarceration, these laws completely ruin a person’s life with no clause to punish the guilty or get compensation from the state if he was found innocent.

The price for peace and security

Undoubtedly, we all need peace and security. The threat to that need posed by terrorists needs to be neutralised by superior intelligence, active police apparatus and alert public. Laws to arrest individuals suspected to have carried out acts of terror or plan to carry out such activities are required. However, the problem is when the state misuses those laws for targeting individuals who oppose their policies or the state uses it to belittle, humiliate and arrest youth of a particular community for setting their political agenda and create a “fear-psychosis” about the community, so that they are stereotyped and branded as being violent and prone to radicalisation and committing acts of terror. The state has therefore a grave responsibility in this regard and it should not appear to be vindictive and autocratic towards its own citizens. Accusations of “state terrorism” are then bound to be levelled.