IS UAPA AGAINST FREEDOM OF SPEECH AND EXPRESSION? [2020]

INTRODUCTION

The most important characteristic of a good state is to allow the citizens with a free and fair amount of freedom of speech and expression and a Government which can be formed must hear the criticism that has been put forth against them and the state should not try to restrain the right of freedom of speech and expression.

In a democratic country like India Freedom of Speech and Expression and right to life and personal liberty is a fundamental right vested with every citizen with reasonable restrictions. This UAPA Amendment created a debate around the country where the opposite parties and other Human Rights activists started as the UAPA amendment is violating the fundamental rights of a citizen, especially an Article 14, Article 19(1)(a) and Article 21.

UAPA

Before digging into the Amendment we should know about the objectives and history of the UAPA Act. At first the Unlawful Activities (Prevention) Act, 1967 was brought to restrain unlawful activities, especially which is against the integrity and public order of the state for example sedition which is defined in 124A of IPC. Later the Unlawful Activities (Prevention) Act 1967 (UAPA) was developed as an anti-terrorism law to prevent such unlawful activities association and maintain the sovereignty and integrity of India.

Before including Terrorism under UAPA, this act mainly prosecuted Unlawful Activities against the State whereas Terrorism was dealt under TADA (Terrorist And Disruptive Activities (Prevention) Act) and POTA (Prevention Of Terrorism Act). Later both major Terrorism Act was repealed and amalgamated with UAPA, 1967.

The recent amendment in Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA, 2019) which includes “Individual” in the definition of “Terrorist” under Section 35 and 36 of the Act. The primary objections to the Amendment passed in 2019 of the UAPA Act are under Section 35, which has the power to categorize both organizations and individuals as terrorists where both Organizations and those who fund banned organizations and Individuals can be characterized as “terrorists”.

Before this amendment an Individual cannot be labeled as a Terrorist, only a group of people or organizations can be characterized. And if an Individual or Organization has been characterized as a terrorist, the NIA (National Investigation Agency) has the power to directly arrest and seize the property without seeking the permission of the state police department.

The Minimum grade of Inspector in NIA can arrest or seize the property of the person who is labelled as terrorists. The result of characterizing individual as a terrorist is associated with sanctions which includes travel bans, an embargo against procuring arms, freezing of assets and even the normal of the individual will be affected.

This Article further discuss, Whether Unlawful Activities and Terrorism can be weighed equally before the eyes of the law and whether the amendment is violating article 14,19(1)(a) and 21 of the Constitution.

FREEDOM OF SPEECH AND EXPRESSION

UNLAWFUL ACTIVITIES AND TERRORISM

The Act of terrorism is considered as a heinous crime that can be committed by an Individual or a Group involves in causing of death, serious injuries and damaging the private or public properties. In short, it destroys the peace and integrity of the State or Territory by using highly disruptive weapons. Whereas Unlawful Activities cannot be exactly defined as terrorism.

As because an Unlawful Activities generally defines as an Act or Crime against the State which can be in the form of written, verbal and other forms without any physical or violent action. So, In the view of the state, anything that they feel which is against them can be treated as an unlawful activity.

Prior to the redesigning of the Unlawful Activities (Prevention) Act (UAPA), terrorist activities were primarily dealt with under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and Prevention of Terrorism Act, 2002 (‘POTA’) and the now repealed. The constitutional validity of TADA and POTA has been challenged for a number of years.

In Kartar Singh v. State of Punjab and PUCL v. Union of India constitutional validity of TADA and POTA has challenged on the ground of public order and Union did not have the legislative competence to enact these laws.

In the case Sri Indra Das v. State of Assam[i], it was held that literal interpretation of Section 19 of UAPA and Section 3(5) of TADA (both of which made mere membership of a banned organization, criminal) would make them violative of Article 19 and 21 of the Indian Constitution.

In the similar case Arup Bhuyan’s case[ii] it was interpreted that if a person is mere membership of a banned organization he cannot be incriminated until he is proved to have resorted to acts of violence or disturbance of public peace by resort to imminent violence or does an act intended to create disorder or incited people to imminent violence.

So from the case cited above an Individual cannot be quoted as a Terrorist unless proved that he created public disorder or he was an active member and being a mere member of a banned organization cannot be considered as a terrorist.

And also categorizing someone as a terrorist without a trial and without any judicial application of mind goes against the settled canons of criminal Jurisprudence and principles of rule of law, natural justice and the person’s fundamental right to reputation.

UAPA AND GOLDEN TRIANGLE OF INDIAN CONSTITUTION

Every citizen of this country has vested with Fundamental rights especially article 14 (equality before law), Article 19 (right to freedom of speech and expression) and Article 21(no person shall be deprived of his life or personal liberty except according to procedure established by law) are considered as the golden triangle of the Indian Constitution.

The Amendment Act 2019, providing special procedures to deal with terrorist activities, and individuals and groups that foster terrorism in India. So many controversies raised that some provision of UAPA amendment 2019 violating the basic rights of the constitution.

Section 35 of UAPA Act, 1967 is considered as the most debated part because an individual can be designated as terrorist even he /she may not be involved in any activities but still if the government either Union or the State feels so, any individual can be added in those lists and technically their side of clarification is not needed and will not be heard officially till they file a case in the court.

 Further in criminal cases burden of proof is on prosecution to prove him/her guilty and the person is innocent until he is proven guilty but under this Act, Burden of proof shifted on the individuals who is accused of being a terrorist.

The Amendment gives unfettered power to the Central Government to declare an individual as a terrorist only if it believes that it is involved in terrorism is arbitrary and violates Article 14 inasmuch as it is manifestly arbitrary and gives unbridled powers to the Central Government to declare an individual as a terrorist.

The unfettered power to the executive to characterize individuals as Terrorists can be abused to muzzle free speech. And this part of the amendment may be Violative in nature and it may challenge the principle of “Audi Alteram Partem” where In our judiciary it is an important aspect.

In a case State Vs Kobad Gandhy, it was alleged that accused Gandhy delivering a speech in the university to motivate people to CPI and the court held that mere membership of a banned organization cannot incriminate a person and there was no conclusive evidence on the prosecution side to prove that accused Gandhy was having any nexus with enemy countries or he was pertaining to a militant group, there is no evidence on record to show the accused was having any link with terrorist activities or militant group.  

UAPA amendment provisions may or may not be expressly infringe the golden triangle of the Indian Constitution but still when a authority or the state labels a individual without prior notice or clarification from the individual may lead to violation of fundamental rights.

So the problem that occurs in this amendment is that these strict process of criminalization can be applied for the act of terrorism but these acts are passing even to the people who commit unlawful activity where both obviously cannot be weighed equally and criminalizing a person as a terrorist for a unlawful activity and later if they are proven innocent, their normal life can be affected immensely and where they even can be distanced from the society for labeling them as a terrorist  wrongly  or proven innocent in the court.

CONCLUSION

Terrorism is an global threat which must be eradicated where many  world countries trying hard to fight against terrorism which exists in different forms in different regions.

Any terrorist activity must be strictly restrained which is a mandatory duty of a central government where the UAPA provisions that are legislated in a way that rapid actions will be taken by the government. But the major drawback is that in the recent  amendment the act of unlawful activity and terrorism is been weighed similarly where fundamentally it cannot be considered as an same level of crime.

Terrorism is a completely illegal and against human kind and rights, where they must be punished but an unlawful activity cannot be defined where the central government may take any action against anyone if they wish and without even getting any clarification from the person he/she may be added in the terrorist schedule for committing a unlawful activity.

This act clearly violates the principle of “Audi Alteram Partem ” which means “listen to the other side” where this principle is considered as the important features of our judiciary which itself being abridged by this amendment.

Any legislation or Amendment that is put forth in the parliament must make sure that it doesn’t violate the fundamental rights of any citizen. Especially article 14,15,19(1)(a) and 21 are one of the important fundamental rights. And any government must be open to criticism with certain reasonable restrictions and  the question that raises is that whether separate legislation should be separately for restraining unlawful activities and terrorism and amendments that is put forth really prohibits and controls terrorism.


REFERENCES

[i] CRIMINAL APPEAL NO. 1383 OF 2007

[ii] Arup Bhuyan V. State of Assam (on 3 February, 2011) CRIMINAL APPEAL NO(s). 889 OF 2007

AUTHOR: S.JEEVITHA | COLLEGE: SAVEETHA SCHOOL OF LAW , SAVEETHA UNIVERSITY

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