Modifying The Compensation Arrangement Under The Unlawful Activities

(Prevention) Act: A Goal At Reducing False Terror Convictions

ABSTRACT

The unlawful Activities (prevention) Act was revised in 2004 after the revocation of prevention of
terrorist Activities Act (POTA) for its flagrant infringement of human rights. It yet maintained the
uncertain terms of its revoked equivalent and ensuing  alterations in 2008 and 2012, it has advanced
into a  Draconian enactment that’s ill-used to frustrate minorities whether or not ethnic,
,non- secular or political. With constitutional protection being outlined, reasonableness guaranteed
by the official criminal procedure and also the rules of evidence are changed for the terror accused.
In numerous cases, people are wrongfully condemned under terror charges because the clauses of
UAPA are munificently induced by the work agencies with no repercussions for the very same. This
paper emphasizes the lacuna and expects to suppress the imperfection in the criminal equity
framework by proposing a compensatory instrument to address such wrongful convictions in order
to reduce the obvious downsides.

I. Introduction
The unlawful Activities (prevention) Act [hereinafter remarked as “the Act”] is a rare law that
curbs an accused’s elementary rights, significantly Articles 19(Kumar,R)and21(Kumar,R)that enabl
e a national of India to create peaceful associations and accord an assurance to an individual’s life
and freedom severally. Now, it is pertinent to take note of that an extraordinary law is one that
surpasses the same old, average, or traditional measures 1 that surround enactments.
They validate exemptions in methods of investigation and trial. The authenticity of procedural
exemptions originates from political selections recognizing and certifying the presence of a state of
crisis that makes such anomalies crucial.(Singh,2007)
The Act isn't the first of its kind. Though the broad security measures exemplified under the 
prevention of terrorism Act (POTA) were revoked after the triumph of congress party-led UPA
coalition in 2004, although, some of its debatable clauses were shifted into the criminal code
through the revision of the Act within the very year (Jones, 2012) R6. The special standing of the
Act permits it to violate the procedure established by law2. Section 15 of the Act states what

1
Black’s Law Dictionary. 2nd edn.
2
Maneka Gandhi v Union of India 1978 (1) SCC 248
1|Page
comprises a ‘Terrorist Act’. It highlights on the  Mens Rea  or the object 3, Though, terrorism is not
explained within the Act. Justice A.S. Anand in Hitendra Vishnu Thakur 4 stressed on  the trouble in
attempting to set down what comprises ‘terrorism’. Furthermore, the Kerala Court in Vikraman 5
recognized that the extent of what comprises a ' ‘terrorist Act’ under the UAPA is further wide-
reaching than its revoked forerunners. Even the chance of inflicting terror within the individuals or
any segment of the general population would be understood as terrorist activity under the Act. The
unclear definition given to a criminal offense of a huge extent  permits for the investigating agency
to inculpate people with charges that pull in a menacing consequence while remaining are saved on
account of abuse of such provision.

The UAPA has a remarkable pre-2004 history. it was passed in 1967 with regards to the
 Naga rebellion (Ramraj, Roach, 2009). The ratification obtained its legitimacy from the 16th
 constitutional amendment. It had been this modification that that took into account the
inconvenience of ‘reasonable restrictions’  sovereignty and integrity of India. it had been named as-
“anti-DMK bill” because it intended towards retrenching the liberty of speech and
expression within the context of stifling the swelling tumult for secession by Dravida Munnereta
Kazhagam (DMK) within the state of Madras. Unexpectedly, it had been authorized when the calls
for 'Tamilnad' had passed on to a respite in the wake of the Chinese animosity 6. It had been a
‘reasonable restriction’ with a focus to shield the sovereignty and integrity of India

II. The Ability To Hunt, Annex And Arrest: Too Draconian?

A. Constitutional Protection

The fundamental rights of association, assembly and expression warranted by the

constitution are basic for the working of a democracy; nonetheless, all of those rights are diminished
by the Act. Article 20 (3)(Kumar,R) of the Indian constitution epitomizes the benefit of the right
against self-incrimination. Though the provenance of the right to silence is muddled, it may be
tracked down to Medieval England. The right  to silence relies on the rule ‘Nemo Debet Prodere
3
Unlawful Activities (Prevention) Act, 1967, §15
4
Hitendra Vishnu Thakur v. State Of Maharashtra (1994) SCC (4) 602
5
Vikraman v. State of Kerala (2014) Crl. M.C. No. 6110.
6
Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India 1st ed. 2017at p. 106-107.
2|Page
Ipsum’, that is translated to- the privilege against self-implication this benefit, nonetheless, solely
7
incorporates  to ‘testimonial compulsion.’ it had been in Selvi  where it was ruled
 that mandatory administration of scientific techniques, particularly narco-
analysis, polygraph examination and also the Brain Electrical Activation Profile (BEAP) bear a
‘testimonial’ character and accordingly stimulates the preservation of Article 20 (3) of the
constitution8.
POTA permitted the gathering of samples from an accused  and also the unwillingness to supply the
requested samples would elicit the statutory terms for the courts to
draw an unfavourable reasoning against the defendant9. The constitutional validity of the section
was averred by resorting to the Kathi Kalu Ogadh10 case that asseverated that impressions of the
thumb, foot or palm did not establish a person being a witness against himself and thus failed to
draw the aid of Article 20 (3) of the constitution.
The CrPC was amended in 2005 after the annulment of POTA to provide additional power to a
registered medical practitioner to use adequate force required to establish realities. Nonetheless,
since its modification, many reformist decisions were pronounced that underlines the
significance of personal  liberty and autonomy11

B. The Scuffle Betwixt The CrPC And UAPA

Criminal procedure commands that a person captured while not with a warrant should not be kept
for over a day(24 hours) (Cr.PC,1973, §57). If the police can't finish its examination inside the
specified time, a magistrate will stretch out the duration to a 180 days on the attainment of  especial
 necessities for grave cases(Cr.PC,1973, §167) . These terms of the CrPC echoes the basic right
against arrest and detainment granted to any or all people in Article 20(3). (Kumar,R)
The Act’s clauses allow the police to hunt, seize and capture ‘suspected’ culprits of terror crimes
and bail becomes an unfeasible endeavour as section 438(Cr.PC,1973) of the criminal procedure
code is irrelevant here12. The defendant isn't bestowed with bail except if the public prosecutor has
7
Selvi v. State of Karnataka AIR 2010 SC1974.
8
M.P. Jain, INDIAN CONSTITUTIONAL LAW, at 1099 (7th edn, 2016).
9
Prevention of Terrorist Activities Act, 1967, §27.
10
State of Bombay v. Kathi Kalu Ogadh, (1961)CriL.J856.
11
See, Justice Puttaswamy vs Union of India 2017(10) SCALE 1 [Upheld the right to privacy as a fundamental right
guaranteed by the Constitution under Article 21]
12
Unlawful Activities (Prevention) Act, 1967, § 43 D
3|Page
been given a chance of being heard on the petition for such acquittal. Moreover, the Act authorises
the formation of special courts, with extensive circumspection to carry in-camera proceedings 13
(closed-door hearings) and use confidential witnesses. Adding to the unconventional character of
the Act, it does not contain any provision for mandatory periodic review (The Wire.). or a sunset
clause which implies that the ceremonial repeal of the law post the initiation of state action-
whether by the police or the courts would be unnecessary because the law would even now be
relevant14.
The Act, since its ratification has been amended doubly, in 2008 and 2012. consequently, the
Act currently encapsulates the  Draconian specifications of its revoked archetype POTA.
Courts will deny bail if on its underlying examination, if the court is of the opinion that there
exist sensible cause that the allegations against the individual are prima-facie true. The aphorism
‘Generalia Specialibus Non Derogant’ with regards to extraordinary laws had been mentioned in
Jayanta Kumar Ghosh15 where the court opined that on the account of an of an irregularity
between the overall general provision and special provision, the special provision shall be
acknowledged.

C. The Law Of Evidence

Vague meanings of what is interpreted as terrorism, joined by extreme punishments and penalties
and wide auxiliary forces of confinement and examination, may be ill-used to frustrate political
adversaries or approve oppressive measures unpopular or marginal religious and ethnic populaces
(Bhuta, Ganguly, Adams, 2010). The deviation of the Act from built-up standards of criminal
jurisprudence is broad and all-embracing. For example, there exists an assumption of culpability on
the defendant16, thus, consequently, the weight to prove blamelessness shifts to the defendant
charged with such crime. This is not only contradictory to the  actual inception of the common law
pronouncement- ‘Ei Incumbit Probatio Qui Dicit, Non Qui Negat’ (the burden of proof is on
he/she who proclaims, not on one who denies)but also additionally comes across as  to be a prima-
facie infringement of the rule of law. The dice stays biased against the defendant even when a case
goes to trial as evidence that usually wouldn't be established as admittable in a crime as flagitious as
murder may be used as conclusive proof for indicting a person charged under the Act. State
investigating agencies, on the flip side, are demanded to lay minimum number of efforts for the
13
Unlawful Activities (Prevention) Act, 1967, § 44
14
Countering terror or terrorizing the law?, Menaka Guruswamy, Seminar (Nov. 04, 2010).
15
Jayanta Kumar Ghosh v NIA 2014 (1) GLT 1.
16
Unlawful Activities (Prevention) Act §43 E
4|Page
accused’s prosecution in court, in order to control police oppression, any inculpatory declaration
 made to a policeman isn't admittable as proof against the defendant (IEA,1872, §35) Nonetheless,
some cops have conceded that utilizing aggressive measures so as to obtain confessions from
criminal suspects is their main investigation mechanism,as opposed to gathering forensic proofs
and onlooker declarations.17

In R. M. Malkani ,18 the court had set out evident pointers concerning when telecommunication

 conversations  can be  admittable as proof by applying the principle doctrine of res
gestae19. Once the voice is recognizable, the speech communication has relevancy to the matters in
issue and there's proved and demonstrated precision of the recording, then the audiotape
is admittable. The Act allows such recordings to be  acceptable if the defendant is supplied with a
replica of the order20.

III. Global Norms

Generally, wrongful convictions are viewed as a national matter, predominantly  undeserving of

 national or global notice. Whereas International Law ensures a right to a fair trial, nations have
since quite a while ago differed in what rights they award defendants to accurately challenge their
convictions. How much a nation allows such challenges uncovers that nation's "certainty . . . in its
standards and mores," as well as the precision of criminal convictions and outlook towards human
rights21.
Furthermore, since several human rights’ treaties have a robust double jeopardy proposition, the
United Nations Human Rights Committee, which is entrusted with conventional remarks
deciphering the ICCPR, likewise also noticed that reinstituting criminal proceedings can
be legitimized “by exceptional circumstances,” that can be contemplated as “a resumption of a
criminal trial,” and not a retrial on infringement of double jeopardy. Nonetheless, the change from
countries approving innocence claims as an issue of pragmatic need to embracing them as a lawful
commitment continues to be an on-going cycle(Herdegan, 1991) .
Reasonableness at trial, the validity of sentences, and restricting convictions to those for genuine

17
Dysfunction, Abuse, and Impunity in the Indian Police, Human Rights Watch (Aug 04, 2009).
18
RM Malkani v State of Maharashtra, (1973) 1 SCC 471.
19
Indian Evidence Act, 1872, §8.
20
Unlawful Activities (Prevention) Act, 1967, §46.
21
Ira P. Robbins, COMPARATIVE POST-CONVICTION REMEDIES ix (1980)
5|Page
offences are altogether postulates that are mirrored in global pacts like the UN Declaration of
Human Rights and also the International Covenant On Civil And Political Rights (ICCPR)
(International law world order 1-5, 1948) ,  but they have failed to provide any meaningful
remedy for wrongful conviction. For example, ICCPR Article 14(6) provides that persons whose
convictions were switched, supported by new proof of innocence or a perversion of fairness are
ought to receive a redressal. Clauses of human rights treaties don't seem to be legitimately
enforceable  without the  parallel qualifying national enactments, the Constitution commands high
regard for International Law and treaty commitments in Article 51. (Kumar,R). The Supreme Court
in India duly conveyed in Vishaka22 that International Conventions if not conflicting with
the elementary fundamental rights should be construed into national enactments so as to
aggrandize the notion of the constitutional guarantee. In repudiation to its global
commitments, India  has misfired, and didn't produce a legislatorial structure that renders
reparations to sufferers of improper indictment/conviction as commanded by the ICCPR (UN:
Internantional Covenant, 1996) . India did put down its reluctance with respect to guerdon for
sufferers of unfair arrest while ratifying the ICCPR in 1979, although; various milestone decisions
(discussed within the subsequent) have settled the contentions.

In the wake of the 9/11 terror attacks in 2001, UN Security Council Resolution 1373 was ratified. .
Despite the fact that it guided all States to embrace measures to battle worldwide  terrorist acts,
it failed to contain any provisions that guaranteed the compliance to human rights guidelines (UN
Office on Drugs & Crime, 2001). This defect was rectified with ensuing declarations;
specifically United Nations Security Council 1456. This resolution elucidated that any measures
taken in combating terrorist acts must conform to international human rights, refugee and
humanitarian law.
India has enforced resolution 1373 post-2001 whereas authorizing counter-terrorism laws that veer
off not just from standard criminal procedure and core human rights secured by the ICCPR but  the
most fundamental  tenants of criminal jurisprudence as well (South Asians for Human Rights) .

Iv. System Of Compensation In  India

22
Visakha v State of Rajasthan, A.I.R. 1997 SC 3011.
6|Page
 A. Evolving Jurisprudence

The earliest case where the Apex Court had granted recompense for the infringement of basic
human rights was within the Bhagalpur Blinding Case23. The matter got its treacherous title from
the blatant police excesses perpetrated upon the detainees of Bhagalpur Jail, Bihar. In
this matter,31 under trials were unsighted by corrosive being immersed into their eyeballs. This case
was a large step in Indian criminal jurisprudence because the court declared that if a person’s right
to life and liberty is truncated by practices aside from the procedure established by law, the
court should set up contemporary tools and conceive modern solutions for the exoneration
of basic rights.
The inquiry regarding whether the extent of Article 21 enfolds right to compensation for its
infringement was 1st mentioned in Rudul Shah24. The petitioner had been discharged fourteen
years following his absolution. He submitted the writ of habeas corpus under Article 32 of the
Indian constitution for his tribulation and had conjointly pursued indemnification for his unlawful
confinement. The verdict, conveyed by Chief Justice Chandrachud declared that
Article21 that ensure the right to life and liberty would be bared of its substance if the power of the
court were outlined by the trivial passing of orders to exculpate a person from unlawful
confinement. The judgement went on to state that “One of the telling ways in which the violation of
that right will fairly be prevented and due compliance with the mandate of Article 21 secured, is to
mulct its violators within the payment of monetary compensation.”
A defence that was sought by the state was the principle of “Sovereign Immunity”. As indicated
by it, the state can't be prosecuted by its citizens 25. The Supreme Court, however, illuminated that
there exists a distinction between the liability of the state in “Public Law” and the liability of the
state in “Private Law” for payment of compensation in Action on civil wrong 26. The Court
additionally proceeded to explain that Sovereign Immunity couldn't be guaranteed for the
repudiation of essential rights and that the grant for recompense in a procedure under Art. 32 and
Art. 226 of the Constitution is a remedy obtainable in Public Law.

23
Bhagalpur Blinding Case, [Khatri II v. State of Bihar] 1981 (1) SCC 627.
24
Rudul Shah v Union of India 1983 (4) SCC 141.
25
Black’s Law Dictionary 2nd ed.
26
Smt. Nilabati Behera v, State of Orissa AIR 1993 SC 1960.

7|Page
The court went on to elucidate that Sovereign Immunity  couldn't be claimed for
the infraction of fundamental rights and for which the award for compensation in the
very proceeding under  Article 32 and Article 226 of the constitution may be a remedy obtainable
under  Public law.

B. Present-Day Situation In India

in 2017, a high-level board led by state police chief Loknath Behera critiqued matters

charged under UAPA for over 5 years. Out of the 160 cases looked into, it had
been certainly discovered that not enough heed was practised while slapping on the UAPA
charges for nearly a 3rd of the cases (Times of India, 2017). This is  a transparent manifestation of
the misuse of power practiced by investigating agencies that initiate disturbances on the lives of
innocent victims whose legitimate plan of action are incredibly weakened due to the terror charges.
A person whose innocence is evidenced once being improperly sentenced nevertheless encounters
the scrutiny of re-entering the community and the inability to repay them for their depravations
adds affront to the previously existing injury (Hari Kumar, 2012) R3. it had been in D. K. Basu27
that the court contended via its verdict that “monetary or pecuniary compensation is an appropriate
and sometimes the only suitable remedy for redressal of the established infringement of the
fundamental right to life of a citizen by the public servants and the State is vicariously liable for
their Acts.” whereas people are redressed for wrongful convictions, the scope of such
reparation doesn't confer to matters wherever people had been  ill-treated with terror charges.
The cessation of democratic freedoms underlined by restrictive actions and the suspension of
religious  minorities all make up the ramifications for the ensuing counterterrorism strategies and
their justification28. Past terrorist laws - Terrorist and Disruptive Activities (Prevention) Act
(TADA) and POTA, have been implemented to target ethnic and non secular minorities,
tribals, underprivileged sections also the political Activists in  India. These biased exercises are
pursued to these days with this Act in situ. A committee headed by former Chief Justice of the
Delhi High Court, Justice A. P. Shah in 2017 observed that on account of faulty terror convictions,
consequences had not originated from trifling technical defects or genuine human faults within

27
D. K. Basu v. State of West Bengal (1997) 1 SCC 416.
28
Arguing Counterterrorism: New perspectives (ed. Daniela Pisoiu) at p. 195 Series: Routledge Critical Terrorism
Studies, University of Otago, New Zealand.
8|Page
the investigation however rather,  it was fundamental and adamant indictment fuelled by
noxiousness.
The National Human Rights Commission in 2006 had awarded financial compensation in the
very case arising from the years of act of terrorism in Punjab. The case concerned widespread
disappearances of suspected militants. The Central Bureau of Investigation (CBI) had found that
the Punjab police lawlessly incinerated well more than 2000 bodies (Boyd-Caine, 2007) . This is
simply an  example of how large-scale practice of erroneous cases was started by the
police during the TADA system. Consequently, POTA included a provision that considered police
responsible for malignant indictment and grant pay to the people in question 29. However, the very
same wasn't construed into the UAPA once it supplanted POTA. The lack of such a
provision within the Act at present infers that police behaving in such a heartless and impudent
way yet remain protected from any type of consequence.
Terror investigations in India don't reinforce any public reliance with its disgraceful methodology,
various postponements, handovers and mala fide purpose. A matter to instantiate is the Mecca
Masjid blast of 2007. The relinquishment of the case from the native police in Hyderabad to the
CBI and at lastly to the National Investigation Agency (NIA) on the instructions of the Union
Home Ministry took nearly 5 years that attracted remarkable condemnation. The National
Investigation Agency Act, (‘NIAA’) was publicized following the Mumbai terror attacks of 2008. It
supplies a special agency to analyse and indict crimes affecting the sovereignty, security and
integrity of  India at a national level.
39 Muslims were arrested in the ensuing days succeeding the explosion. A sessions judge  observed
an oddity throughout one in all the exonerations. Except for the statement made to the policeman,
there remained no other proof which binds the suspect to the scene of the wrongdoing (National
Commission for Minorities) . On the advice of National Minorities Commission Chief Wajahat
Habibullah, The Andhra Pradesh government allotted 70 lakhs as recompense for the improperly
suspected (The Economic Times) . It had been solely through extensive media analysis and public
review of the general assault on minorities that officers chose to hide any hint of failure by going
the ex gratia course.

The Supreme Court in 2016 declined a plea by people who had been detained for longer than 10
years and looked for compensation for the Akshardham terror case as it would set a “dangerous

29
Prevention of Terrorism Act, 2002 §58.
9|Page
precedent.” (The Wire) The judgment came as a stun because it undid the advancement
made within the human rights front of controlling the faulty imprisonments. The vacuum for an
 offsetting compensatory tool  that will order obligatory financial compensation in cases of false
convictions is needed as a way to rectify the difficulty also as deter future abuse of the law by
investigating agencies.

V. Conclusion

The different counter-terror laws presently upheld in  India puts more stress on the state and not
its citizens and its vague meanings of Act of terrorism flounders to fulfil the principle
of lawfulness by encroaching upon due process of law and private liberty (Manoharan, Panagoda,
2013) . Anti-terror legislations have typically been sanctioned against secessionists or global jihadi
groups,  however as the course of events of history has showed times over, the violence is borne by
minorities (religious, ethnic or political). Prime examples are Tamils in Sri Lanka, Muslims within
the USA and  India, Kurds in Turkey so on30. The requirement to guard human rights is important as
a result of because the Apex Court in its obiter dictum conveyed- Act of
terrorism usually thrives wherever human rights are desecrated thereby emphasizing the need to
reinforce action so as to battle human rights violation 31. India has seen totally distinctive terror
legislations being passed and cancelled on different fronts through the passageway of
time. it's this expertise that embodies the actual fact that such an anti-terror legislation should not
subvert democratic establishments or the sweeping hand of the rule of law (Ravi Nair, 2008).
The criminal justice framework in  India is infested with varied complications. Lack of manpower,
officers not being properly instructed or supplied technologically and the trace of political clout all
represent a daunting task for the investigating agency ( Hari Kumar, 2012).  Once law
 enforcement agencies notice that delivery can't be done through standard laws,
law enforcement opts for extra-judicial methods to manage such a state of affairs.
Without a standard arrangement of compensation for wrongful
convictions, varied people continue and will keep on mulling in detainment facilities because of the
overbearing of the investigating agencies that conjure harsh provisions of the Act. In the times
30
Courting Security without Liberty? Anti-Terror Cases and Minorities in India, Shylashri Shankar, at p. 2.
31
People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580
10 | P a g e
where world terror is a danger which all nations battle, demanding counter-terror
laws are legitimized, however, at no value will they be even if the most fundamental human rights of
people are annulled.

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