Scribd Logo
Upload

Welcome to Scribd!

  • 30 views

    Legislative Analysis

    Uploaded by

    Vijayant Dalal
    The UAPA Amendment Act of 2019 allows the Indian government to designate individuals as terrorists without any FIR, chargesheet, or trial merely if it believes they are involved in terrorism. This infringes on individuals' right to life and personal liberty as protected by the Indian Constitution. The amendment gives the government wide discretionary power to detain people before any crime is committed based only on its belief, with the individual having little recourse to challenge this. Additionally, the amendment shifts the burden of proof to the individual rather than requiring the state to prove why someone is guilty. Several legal challenges have argued that the UAPA Amendment violates constitutional rights to equality, free speech, and due process. While preventing terrorism is important, this

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd

    Legislative Analysis

    Uploaded by

    Vijayant Dalal
    30 views3 pages
    The UAPA Amendment Act of 2019 allows the Indian government to designate individuals as terrorists without any FIR, chargesheet, or trial merely if it believes they are involved in terrorism. This infringes on individuals' right to life and personal liberty as protected by the Indian Constitution. The amendment gives the government wide discretionary power to detain people before any crime is committed based only on its belief, with the individual having little recourse to challenge this. Additionally, the amendment shifts the burden of proof to the individual rather than requiring the state to prove why someone is guilty. Several legal challenges have argued that the UAPA Amendment violates constitutional rights to equality, free speech, and due process. While preventing terrorism is important, this

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The UAPA Amendment Act of 2019 allows the Indian government to designate individuals as terrorists without any FIR, chargesheet, or trial merely if it believes they are involved in terrorism. This infringes on individuals' right to life and personal liberty as protected by the Indian Constitution. The amendment gives the government wide discretionary power to detain people before any crime is committed based only on its belief, with the individual having little recourse to challenge this. Additionally, the amendment shifts the burden of proof to the individual rather than requiring the state to prove why someone is guilty. Several legal challenges have argued that the UAPA Amendment violates constitutional rights to equality, free speech, and due process. While preventing terrorism is important, this

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    30 views3 pages

    Legislative Analysis

    Uploaded by

    Vijayant Dalal
    The UAPA Amendment Act of 2019 allows the Indian government to designate individuals as terrorists without any FIR, chargesheet, or trial merely if it believes they are involved in terrorism. This infringes on individuals' right to life and personal liberty as protected by the Indian Constitution. The amendment gives the government wide discretionary power to detain people before any crime is committed based only on its belief, with the individual having little recourse to challenge this. Additionally, the amendment shifts the burden of proof to the individual rather than requiring the state to prove why someone is guilty. Several legal challenges have argued that the UAPA Amendment violates constitutional rights to equality, free speech, and due process. While preventing terrorism is important, this

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 3

    Page |1

    The UAPA Amendment Act, 2019:


    A law which allows a person to be called a terrorist without FIR,
    chargesheet or trial

    Vijayant Dalal

    On August 8, 2019, the President assented to amendments to the Unlawful Activities


    (Prevention) Act (UAPA), 1967, introducing a set of changes to an already draconian law. The
    most fundamental of these changes empowers the government to designate individuals as
    terrorists, merely if it believes so, leaving little to no recourse for them to protest their
    designation.

    The Unlawful Activities (Prevention) Act was passed in 1967, with an aim of more effective
    prevention of certain unlawful activities of associations and for dealing with terrorist activities
    and for matters connected therewith1. The main motive behind the act was to provide state and
    central agencies with ample of powers to deal with terrorist activities directed against the
    integrity and sovereignty of India.

    Under UAPA, 1967 section-3, sub-section-1, if the Central Government forms an opinion that
    any association is, or has become, an unlawful association, it may, by notification in the Official
    Gazette, declare such association to be unlawful2. However, under sub-section-2, every such
    notification shall specify the grounds on which it is issued and such other particulars as the
    Central Government may consider necessary but nothing in this sub-section can require the
    Central Government to disclose any fact which it considers to be against the public interest to
    disclose3. In order to ban organisations, the central government merely has to issue a notification:
    neither does it have to give grounds for its decision, nor is this decision reviewed by an
    independent authority4. Now with the introduction of UAPA Amendment Act, 2019, individuals
    can also be identified as terrorists in addition to organisations and associations. The Amendment
    Act was put forward with the interest that terrorist acts are committed not by organizations but
    by individuals and declaring an organization as a terrorist organization will not stop the
    individuals behind it. Not designating individuals as terrorists would give them an opportunity to
    circumvent the law and they would simply gather under a different name and keep up their terror

    1
    Unlawful Activities (Prevention) Act 1967.
    2
    Id, s 3(1).
    3
    Id, s 3(2).
    4
    Mayur Suresh, ‘The slow erosion of fundamental rights: How Romila Thapar v. Union of India highlights what is
    wrong with the UAPA’ [2019] PL 12.
    Page |2

    activities. But that has not been the case, to deal with all these things more than excess power has
    been given in the hands of government eventually which will most probably result in misuse.
    Assurances from government that they will not be misused are belied by the UAPA’s history,
    and the fact that abuse and misuse are inherent in provisions that eliminate accountability. Since
    the Act criminalises membership of “unlawful” and “terrorist” organisations, coming forward to
    appeal the ban has always meant making oneself available for prosecution.

    Section 35, sub-section 2 of UAPA, 1967 as amended reads “The Central Government shall
    exercise its power under clause (a) of sub-section (1) in respect of an organisation or an
    individual only if it believes that such organisation or individual is involved in terrorism” 5. The
    credibility of the law can be seriously doubted regarding the clause mentioned above which gives
    the state wide authority to hold and jail people without any FIR, chargesheet or trail and usually
    even before a crime has been committed just because it believes it to be, and what if the person is
    not guilty, as has been the case with organisations designated as terrorist, an individual’s only
    recourse will be to appeal to the very body that imposed the ban; and then, to apply to a review
    committee which has no time-limit for deciding, and does not need to reveal its reasoning. This
    directly violates with the Article 21 (Right to life and personal liberty) of the Constitution of
    India as it infringes upon the personal autonomy of an individual 6. Individuals are put behind
    bars without adequate reasoning and little to no possibility of bail. Additionally, Section 35 of
    UAPA 2019 does not specify detailed grounds or reasons based on which an individual can be
    termed as a terrorist. A PIL has already been filed by Sajal Awasthi within 10 days of
    amendment declaring amended UAPA law unconstitutional as it violates fundamental rights
    enshrined in the constitution. Awasthi in his 27-page petition states that the act empowers the
    central government with such discretionary, unfettered and unbound powers that it is an
    antithesis to Article 14 (Right to equality) of the Constitution of India. Further, the plea alleges
    that the UAPA Act violates Articles 14, 19 and 21, representing the right to equality, freedom of
    speech and expressions, and right to life, respectively.

    Another important aspect of UAPA law is that it violates with due process of law. When an
    individual is arrested under the charges of UAPA by the acting authority, he is subject to longer
    detention periods, heavy restrictions are made on the availability of bail and there are little to no
    chances of getting it, and most importantly instead of state justifying the reasons and causes that
    how and why that individual is guilty, when met with certain conditions the burden of proof is

    5
    Unlawful Activities (Prevention) Act 1967, s 35(2).

    6
    Rongeet Poddar, ‘Constitutionality of India’s Unlawful Activities (Prevention) Amendment Bill, 2019: India’s
    McCarthyism Moment’, (OxHRH Blog, August 2019) <http://ohrh.law.ox.ac.uk/constitutionality-of-indias-
    unlawful-activities-prevention-amendment-bill-2019-indias-mcarthyism-moment/> accessed 06 October 2019.
    Page |3

    shifted to the individual himself and now he will have to prove that how and why he is not
    guilty--all cumulatively violating constitutional guarantees of due process. Hence, the credibility
    of the act is challenged again here, when the state had designated the individual as terrorist and
    prosecuting him for the same the burden of proof should be on the state who believes that
    individual to be terrorist not on the individual who is being designated as terrorist.

    On all the above mentioned grounds it will not be wrong to call this an unconstitutional law
    which violates of many fundamental and other rights guaranteed by the Constitution of India.
    The goal to prevent terrorism is an essential goal which is good for nation as well as humanity
    but the legislature has clearly erred in pursuing it at the cost of eroding human rights.

    You might also like