Examining the Constitutional Validity of The Unlawful

Activities (Prevention) Amendment Act, 2019

Authored By: Amritanshu Pushkar

(BBA. LL.B., Symbiosis Law School, Pune)

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Abstract

The roots of the Unlawful Activities (Prevention) Act, 1967 can be traced back to colonial
times when the Criminal Law (Amendment) Act was introduced in 1908. The intention was
wide and clear to put the freedom fighters under detention through the newly amended act
and adding 'Unlawful Association' for the first time. Even post-independence, the Nehru-
government preferred to use the provisions of the act against the citizens speaking against the
Government or the land reforms they wished to introduce. Not just the centre, even the states
came up with their own detention laws like Preventive Detention Act, 1950 and various
Supreme Court judgements like AK Gopalan vs State of Madras 1 and Romesh Thapar vs
State of Madras2 came flooding in to uphold the sanctity of the fundamental rights. It was in
Ram Nandan vs The State3 that the Supreme Court finally held the Criminal Law
(Amendment) Act, 1908 as unconstitutional. Through multiple amendments in the years 1951
and 1963 various reasonable restrictions were added to Article 19 of the Constitution to
outsource the Governmental authority over the fundamental rights granted to the citizens. The
first amendment ensured the introduction of the Ninth Schedule which the government once
hoped to use upon any legislation, to keep it outside the purview of the Judicial Review. The
16th Amendment however, created a stepping stone to the enactment of UAPA in 1967 to
silence down the voices or critics that the government had to face during the 1962 Indo-China
war. The Reasonable Restrictions of 'Sovereignty and Integrity' of the state was added
through which the Government aimed to capture away individuals or organisations which
demanded autonomy of demanded to secede from the Union.

Keywords: UAPA, 1967, UAPA (Amendment), 2019, Criminal Law (Amendment) Act,
First and Sixteenth Amendment, Reasonable Restrictions to Article 19(1), Judicial Review,
Preventive Detention.

1
AK Gopalan vs State of Madras, AIR 1950 SC 27
2
Romesh Thapar vs State of Madras, AIR 1950 SC 124
3
Ram Nandan vs The State, Criminal Revn., 1727 Of 1957

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 Table of Contents
Abstract ..................................................................................................2
Introduction ...........................................................................................3
Findings and Discussions ......................................................................6
Conclusion ...........................................................................................10
Suggestions ..........................................................................................11
References ...........................................................................................12

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Introduction

Ever since the introduction of the words "Sovereignty and Integrity", as reasonable
restrictions to Article 19 of the Constitution (A Pack of Fundamental Rights to Freedom) by
way of The Sixteenth Amendment in 1963, a lot has changed. Prior to the introduction of the
Chapter IV in 2004 through an amendment (the chapter dealing with punishments to indulge
in terrorist activities) in the Unlawful Activities Prevention Act, 1967 (hereinafter referred to
as UAPA, 1967), the Union Government used barbaric legislations like Terrorist and
Disruptive Activities (Prevention) Act, 1987 and Prevention of Terrorism Act, 2002 to punish
offenders of the Sovereignty and Integrity of India. These legislations were challenged for
constitutionality in cases like Kartar Singh v. State of Punjab4 and PUCL v. Union of India5,
nevertheless the Indian Supreme Court upheld the validity of both the cases, mounting
importance for national security which is in order of being controlled by the Central
Government.

Having the autonomy they wanted the Indian Supreme Court to grant, the Central
Government went ahead to introduce another amendment to the UAPA, 1967 (in the year
2019) to bring in a couple of changes to the act. Firstly, the National Investigative Agency
(Established through the NIA Act, 2008) gets unrestricted autonomy to perform searches,
seizures and to make arrests in any state of the country, needless to inform the state
government or the local authorities about the same in advance. This change, as was believed
by the legal luminaries, was considered for the better in lieu of the strife with the Maharashtra
Government which demanded in advance notice (to the Director General of Police of the
concerned state) about the arrival and operations of NIA. The demand was arbitrary since the
NIA always found it difficult to conduct secret and confidential searches and operations.
However, the second change brought in to the amendment flooded the gates of controversies
where changes to Section 35 (1) were made and a fourth schedule to the parent act was
introduced which supposedly gave the Union Government an unrestricted power to add or
remove any individual to be designated as a terrorist and detain the said person for up to two
years without any provisions for a judicial appeal. Soon after, couple of petitions were filed
in the Supreme Court of India challenging the newly added provisions to be ultra vires in

4
Kartar Singh v. State of Punjab, 1994 SCC (3) 569
5
PUCL v. Union of India, (1997) 1 SCC 301

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lines with Article 19(1) and Article 21 of the Indian Constitution. The Supreme Court was
requested to impose the interim Doctrine of Eclipse whilst the constitutional validity of the
amendment to the act is being examined.

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Findings and Discussions
The UAPA (Amendment) Act, 2019 brought in a disputable change which expanded the
scope of 'terrorists' under the said act. The Central Government back in 2019, amended the
parent act to include individuals as 'terrorists' under Section 35 and 36 of Chapter VI of the
act. This was against the lines of the 2011 Indian Supreme Court Judgement in Sri Indra Das
v. State of Assam 6 where the Court was tasked to read down Section 10 of UAPA, 1967 and
Section 3(5) of TADA, 1987 both of which made voluntary association with a terrorist
organisation illegal. The court in this case observed that literal interpretation of the sections
would violate Article 19 and 21 of the Constitution. Another similar judgment of Arup
Bhuyan vs State of Assam7 where the Supreme Court in clear terms upheld the fact that mere
membership of a banned organisation does not make an individual a terrorist unless the said
individual resorts to inciting violence against the order of public morality, peace, sovereignty
and friendly relations with the states.

Secondly the Amendment is also well criticised since it gives the Union Government
uncontrolled and unrestricted powers to arrest an individual without following the due
process involved. In the very infamous Justice KS Puttaswamy v. Union of India 8, Supreme
Court held that the right to life and personal liberty (Article 21 of the Indian Constitution) can
only be curtailed with the proper way of following the due process involved. Article 20 of the
Indian Constitution talks about a worldwide accepted principle of 'Presumption of Innocence'
or 'Innocent until Proven Guilty' which is not the case with the designated terrorist under
UAPA is. The 2008 amendment to the UAPA, 1967 increased the period of detention for the
accused terrorists from initial 90 days to 180 days. A mere statement of investigation being
under progress is enough for the Government to claim custody of the accused for another 90
days as per the provisions of this act (Section 43A of UAPA). If we compare it with other
criminal systems, the USA allows a custody of only 7 days and Australia, mere 24 hours for
the Investigative Agencies to prove substantial claims to demand further custody. The said
process of demarcation goes against the lines of the Supreme Court judgement in Maneka
Gandhi v. Union of India9 where procedural law was made to be just, fair and reasonable;

6
Sri Indra Das v. State of Assam, (2011) 3 SCC 380
7
Arup Bhuyan vs State Of Assam, (2011) 3 SCC 377
8
Justice KS Puttaswamy v. Union of India, AIR 2017 SC 4161
9
Maneka Gandhi v. Union of India, AIR 1978 SC 597,

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none of which is the case here. The 177th Law Commission Report which mandates the
entire process of arrests to be reasonable, just and not arbitrary. This Committee was
constituted post the landmark judgment of the Supreme Court in Shri DK Basu, Ashok
Kumar Johri v. State of West Bengal10, where notable suggestions were made to lay down
firm guidelines with respect to the procedures required to be followed by the Governments, at
both the Centre and the State Level, before making arrests. Adding further to this, the
pedestal of considering 'Mens Rea' or a culpable state of mind which has been construed to be
one of the prima facie requisites under the International Criminal Law, has been brought
down to an insignificant position through the arbitrary provisions of this act. The Central
Government says that an organisation or an individual who is likely to cause terrorism in the
minds of the people can be detained under Section 35 of the said act. This further proves that
the purpose of the Act was to legalise Preventive Detention with no time bar and infinite
powers in the hands of the government to curtail the alleged terrorism. This can further be
substantiated by Chapter IV of the Act where the physical element to establish the individual
resorted to 'terrorism' is making up of bombs, dynamites or 'by any other means of whatever
nature' which is likely to cause harm to the population. By any other means of whatever
nature has not been defined or clarified by the Government, keeping it ambiguous, which
gives the Union Government unfettered powers with regards to holding an individual a
terrorist under UAPA. Another drawback can be the way through which arrests are made.
Section 43A of the Act gives unlimited powers to the designated authorities to make arrests
based on his own personal knowledge or information furnished by any other person or article
or anything which may furnish the evidence for commission of the offence. This again goes
against the Supreme Court judgement in Joginder Kumar v. State of Uttar Pradesh 11 wherein
the Supreme Court held, “No arrest can be made because it is lawful for the police officer or
the government to do so. The existence of the power of arrest is one thing and the justification
for the exercise of such power is quite another.”

Furthermore, in DK Basu v. State of West Bengal 12, the Court upheld that the arrested
individual has the right to claim a lawyer under all circumstances of detention and at all times
where he is supposed to make statements. However, no such a right is allowed as per the
provisions of this act which goes on to violate the Principles of Natural Justice of a fair trial.

10
Shri DK Basu, Ashok Kumar Johri v. State of West Bengal, AIR (1997) SC 610
11
Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260
12
D.K. Basu v. State of West Bengal, AIR 1997 SC 610

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Article 20 through the Principle of Audi Altarem Partem, gets violated when the accused has
not been given the right to present his arguments before a court. The UAPA Amendment
2019 and done all its part to infringe the fundamental rights of the accused in the best
possible way. The International standards including Article 14 of the International Covenant
on Civil and Political Rights (ICCPR) which India is a signatory to, recognises the concept of
Presumption of Innocence of the accused which happens to be another Principle of Natural
Justice under the Indian Legal Criminal System as well. In majority of the cases, the onus of
proof is upon the prosecution to prove (beyond reasonable doubt) the guilt of the accused but
under the draconian preventive detention laws in India, the aforementioned principles and
precedents, all takes a toll. This can be substantiated by the Section 43E(b) of the UAPA,
1967 which states, "Unless the contrary is shown, the court shall presume that the accused
has committed the offence". The rights of an accused get infringed despite repeated reminders
from the Indian Supreme Court holding Presumption of Innocence to be one of the major
rights of an accused. One of the examples of such a judgement is Babu v State of Kerala and
Ors.13

Apart from these reasons being primary, the another for the all-round criticism of the
amendment act is as follows:

● It does not allow dissent. The amended provisions now act as a tool for the
Government to penalise the individuals speaking disaffectionately against the state or
the policies of the Government. This works as an assault to the Right to Freedom of
Speech and Expression (Article 19 (1)(a)) and can put individuals under the banner of
scrutiny of the Government believes the words of the individual to be inciting enough
to disrupt the peace and security of the state.
● What the Government feels cannot be challenged either. The amended provisions of
the parent act have tried well to remove all the chances of judicial review of the arrest.
An arrested individual after being arrested can file an appeal before the Central
Government for review under Section 36(1) of the Act (the same organisation which
puts it under the Schedule IV of the act). Once the Central Government refuses to
delist the individual from the Fourth Schedule of the Act, the individual may choose
to file a review petition to the Review Committee constituted by the Central
Government in exercise of its power under Section 36 (4) of the Parent Act. The

13
Babu v State of Kerala and Ors., (2010) 9 SCC 189-B

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 nature, scope and composition of the Review Committees has been defined under
Section 37 of the Act which states that the Central Government can on such discharge
of such review petitions, constitute a Review Committee with a maximum of upto
three member, one being a chairperson for the committee with a prerequisite
qualification of being a Judge of any High Court in India. The problem with appeal
under UAPA, 1967 is that firstly, it has tried well to remove the chances for Judiciary
to interfere in arrests of individuals, secondly the composition of the Review
Committee is arbitrary and the Government has absolute powers to appoint the
members of the committee violating the Principle of Nemo Judex in Sua Causa which
also happens to be a Principle of Natural Justice. Thirdly, no time limit has been
defined within which the Committee is supposed to declare their verdict, literally
granting the Committee unlimited time to decide upon the detention of an individual.
Fourthly, the Committee is also not burdened to reason their verdicts, adding further
possibilities of the Central Government playing a larger part in manipulating the
decision of the Committee.
● The provisions of the act can easily be used to bypass fundamental rights and due
procedures for incarcerating a designated individual for up to 180 days with the most
recent amendment.
● The provisions also confer upon the Government broad discretionary powers to
manipulate the Principles of Natural Justice with broadened powers to set up Special
Courts with the abilities to hear secret witnesses and hold closed-door hearings
removing all further possibilities of media discussions or public criticisms.

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Conclusion
The UAPA, 1967 has become more arbitrary with the recent amendment than it ever was. As
aforesaid, there is a list of problems with the recent amendment and the newly added
provisions are capable enough to infringe fundamental rights of the individual to a greater
extent that it ever was in the past (The Use of Emergency Provisions by the Central
Government back in 1975).

The primary objective of this amendment was to leave any disagreements with the
Government, in the hands of the Government to decide. The act can be used to suppress
opposing political voices and opinions which does not seem pleasant to the ears of the party
in centre. It confines the liberty to express any political differences with the Government
because it may be subject to disaffection with the state. Article 19(1)(a) is violated since
given the draconian provisions of the act, opposing politicians including the left winged
media personnels cannot choose to openly give air to their opinions. Thus, abuse of power is
guaranteed when any political revenge buds in the mind of those who are in authority. The
act has also ensured to impose trials upon foreign individuals once they return/ visit India.
Article 21 is also violated since the individuals being arrested can be incarcerated for up to
180 days without a charge sheet being filed against them.

It is indubitably correct that the Sovereignty and Integrity of the country is foremost but the
same cannot stand on the corpse of laws promoting infringement of Fundamental Rights.
Through the enactment of the amendment act, the Central Government has refreshed the
memories of the colonial times legislations The Criminal Law (Amendment) Act, 1908 and
The Rowlatt Act of 1919. There is no point to have a Federal State where the Centre has the
complete autonomy to decide, legislate and enact laws for the safety of the policies they wish
to implement. The government, however, keeps asserting that they bear no malice and only
seek to keep the country united against existential threats. However, it is clear that this law
can be used as a tool against the opposition and attacks the very importance of speech in a
democracy in the name of security.

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Suggestions
The UAPA, 1967 has not done much harm and an order to restrain the future consequences
be curtailed. Following suggestions can be implemented to bring in a safer environment for
individuals dissenting against the policies of the Government:

● Permitting Judicial Review of arrested individuals by setting up an Appellate Tribunal

deciding solely the cases of UAPA accused.
● The Review Committee be made larger with the addition of more Judicial brains to
uphold the best interests of the arrested individual.
● The Supreme Court in Shreya Singhal v. Union of India14 had struck down Section
66-A of the Information Technology Act, 2000 on lines of 'Vagueness'. A similar step
is expected by the Judiciary especially when the Supreme Court has been called upon
to decide upon the Constitutionality of the recent amendment in Sajal Awasthi v.
Union of India15. When such horrendous legislation violates and infringes the rights
of people, it becomes the duty of the Judiciary to step in and restore the faith in
democracy. The Supreme Court can also apply the Doctrine of Severability or the
Doctrine of Eclipse to temporarily put the unconstitutional provisions of the act on
hold.

14
Shreya Singhal v. Union of India, (2013) 12 S.C.C. 73
15
Sajal Awasthi v. Union of India, WP (C) 1076/2019

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References
● Poddar, R. (2020). Constitutionality of India’s Unlawful Activities (Prevention)
Amendment Bill, 2019: India’s McCarthyism Moment | OHRH. Oxford Law Journal.
https://ohrh.law.ox.ac.uk/constitutionality-of-indias-unlawful-activities-prevention-
amendment-bill-2019-indias-mccarthyism-moment/
● Supreme Court Observer - Petitions Challenging UAPA Amendment Act Explained
in Plain English. (2019). SCO Observer. https://www.scobserver.in/court-
case/association-for-protection-of-civil-rights-v-union-of-india/constitutionality-of-
uapa-amendment-act-petitions-explained
● Bhandari, D. (2020, June 3). The Continuing Threat of India’s Unlawful Activities
Prevention Act to Free Speech. The Jurist.
https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/
● Dadu, P. (2020, July 2). Analysis of use of UAPA from NCRB data. Centre for Law
& Policy Research. https://clpr.org.in/blog/use-of-the-uapa-from-the-national-crime-
reports-bureau/
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● Pal, A. (2020, July). An Analysis on the validity of the Unlawful Activities
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● Aurondam, G. (2021, April 16). FEAR CUTS DEEPER THAN SWORDS: THE
UNLAWFUL ACTIVITIES (PREVENTION) ACT (UAPA) VERSUS THE INDIAN
CONSTITUTION. RGNUL Student Research Review (RSRR).
http://rsrr.in/2021/04/13/uapa-versus-indian-constitution/
● The Unlawful Activities (Prevention) Amendment Bill, 2019. (2019, September).
PRS Legislative Research. https://prsindia.org/billtrack/the-unlawful-activities-
prevention-amendment-bill-2019

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