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The legal and institutional framework that independent India Inherited from the British to govern criminal law, criminal procedure, and policing largely remains in place today. Police matters are governed primarily by the Police Act of 1861. Continuing a pattern established by the British, India’s antiterrorism and other security laws have periodically been enacted, repealed, and re-enacted in the years since independence.
Soon after its adoption, the constitution of India was amended in 1951. At the time, several progressive judgements by the judiciary held that laws that curb fundamental rights are essentially unconstitutional and fundamental freedoms could only be curbed in the most extreme cases. The first amendment countered this by amending Article 19 to add the word ‘reasonable’ before restrictions and to add ‘public order’ as being one more ground for abridging fundamental rights.
The evolution of Unlawful Activities (Prevention) Act (UAPA) has to be seen in the background of this gradual but steady constriction of Article 19, which guarantees the fundamental freedoms of expression, assembly and association.
The UAPA, 1967 The next major step in the abridgement of freedom of expression, assembly and association occurred in shape of the 16th amendment in 1963. Further ‘reasonable restrictions in the interest of the sovereignty and integrity of India’ were amended to Article 19 (2). This amendment occurred in the immediate wake of the Indian army’s defeat in the Sino-Indian War, as well as the threat posed by the DMK contesting elections in Tamil Nadu with secession from India being part of their manifesto. It was in this background that the UAPA was enacted in 1967 – to satisfy the need of the Indian state to declare associations that sought secession from India as ‘unlawful’. In this way, the UAPA gave powers to the central government to impose all-India bans on associations. The process of banning associations could simply be done by the government announcing them as ‘unlawful’ and hence banned (Section 3). The ambit of the Act was strictly limited to meeting the challenge to the territorial integrity of India. The Act was a self-contained code of provisions for declaring secessionist associations as unlawful, adjudication by a tribunal, control of funds and places of work of unlawful associations, penalties for their members etc. The Act has all along been worked holistically as such and is completely within the purview of the central list in the 7th Schedule of the Constitution of India.
Terrorist And Disruptive Activities (Prevention) Act, 1987 (TADA) The second major act came into force in 1987. This act had much more stringent provisions then the UAPA and it was specifically designed to deal with terrorist activities in India. When TADA was enacted it came to be challenged before the Apex Court of the country as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good. However, there were many instances of misuse of power for collateral purposes. The rigorous provisions contained in the statute came to be abused in the hands of law enforcement officials. TADA lapsed in 1995.
The Maharashtra Control of Organised Crime Act, 1999 (MCOCA) This law was specifically made to deal with rising organized crime in Maharashtra and specially in Mumbai due to the underworld. The definition of a terrorist act is very stretchable in MCOCA. MCOCA not only mentions organized crime, but also includes `promotion of insurgency' as a terrorist act. Under the Maharashtra law a person is presumed guilty unless he is able to prove his innocence. MCOCA does not stipulate prosecution of police officers found guilty of its misuse.
Prevention Of Terrorist Activities Act (POTA), 2002 In wake of the 1999 IC-814 hijack and 2001 Parliament attack, there was a clamour for a more stringent anti-terror law, which came in the form of The Prevention of Terrorism Act (POTA). When it was introduced and it had widespread opposition not even in the Indian parliament but throughout India especially with the human rights organization because they thought that the act violated most of the fundamental rights provided in the Indian constitution. The protagonists of the Act have, however, hailed the legislation on the ground that it has been effective in ensuring the speedy trial of those accused of indulging in or abetting terrorism. POTA was envisaged as useful in stemming "state-sponsored cross-border terrorism". The act replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention) Act (1985-95). The act provided the legal framework to strengthen administrative rights to fight terrorism within the country of India and was to be applied against any person. The act defined what a terrorist act and a terrorist is and grants special powers to the investigating authorities described under the act. To ensure certain powers were not misused and human rights violations would not take place, specific safeguards were built into the act. Under the law detention of a suspect for up to 180 days without the filing of charges in court was permitted. It also allowed law enforcement agencies to withhold the identities of witnesses and treat a confession made to the police as an admission of guilt. Under regular Indian law, a person can deny such confessions in court, but not under POTA. Once the Act became law there surfaced many reports of the law being grossly abused. Claims emerged that POTA legislation contributed to corruption within the Indian police and judicial system. Human rights and civil liberty groups fought against it. The use of the Act became one of the issues during the 2004 election. The United Progressive Alliance government of India committed to repealing the act as part of their campaigning and finally it was repealed in 2004 after UPA came in Power and its features were incorporated in UAPA.
The UAPA, 1967 amendment in 2004 , 2008 and 2012 POTA was accused of egregious misuse by way of interrogations that amounted to torture, or cruel, inhuman or degrading treatment. Therefore, it was repealed in 2004 by the UPA Government UAPA, 1967 was amended and given more teeth like under POTA suspects could be detained for up to 180 days without charge but now it in sync with the Section 167(2)(a) of the Code of Criminal Procedure, which stipulates that all arrested persons have to be produced within 24 hours. Further, suspects are now also entitled to apply for bail, in accordance with the Code while this was only permissible under POTA after one year. In 2008, the government again geared up to make the law more stringent to fight terrorism in a more effective manner. The Unlawful Activities (Prevention) Amendment Bill introduced in 2008 aimed at strengthening the arrangements for speedy investigation, prosecution and trial of cases related terrorism while at the same time guarding against any possible misuse of such provisions. In 2010, India joined the Financial Action Task Force (FATF). FATF is an intergovernmental body seeking to fight money-laundering and terrorist financing. Therefore, to comply with FATF’s policy UAPA was again amended in 2012.
Significant provisions of the UAPA came into light after the arrest of five Maharashtrian activists in the wake of Bhima Koregaon violence
Section 10 - section 10 as amended by the Amending Act of 2004, provides that if any person from the association after being declared as unlawful under this Act, continues to be a member thereof, takes part in its meetings, makes contribution of any kind for its purposes or otherwise acted in the manner as provided under the provision, then he should be held guilty under the Act, and punishment can extend to life imprisonment and should not be below 5 years imprisonment along with fine. Similarly, the punishment for dealing with funds of the unlawful association is upto 3 years imprisonment and fine also.
Section 15 - Section 15 of the Act defines the terrorist act as an act done with intent to threaten or likely to threaten the unity, integrity, security, etc. of India by using various destructive substances provide under the provision. The punishment for such acts, is death penalty, if the same results in death of any persons and in other cases, the punishment can extend to life imprisonment and minimum 5 years punishment is given. Similarly, there are different punishments provided for other relevant terrorist acts.
By: Vinay Joshi ProfileResourcesReport error
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