INTERPRETING UAPA: AN ANALYSIS

“We are all determined to fight terrorism and to do our utmost to banish it from
the face of the earth. But the force we use to fight it should always be
proportional and focused on the actual terrorists. We cannot and must not fight
them by using their own methods - by inflicting indiscriminate violence and
terror on innocent civilians, including children.”

-Kofi Anan1

I. INTRODUCTION
The right to equality, liberty, and the protection of life are among the fundamental rights that
the Indian Constitution grants to both citizens and non-citizens. 2 “These rights are essential
for avoiding governmental arbitrary action and safeguarding people from exploitation,
especially those protected by Articles 14, 19, and 21.”3 While Article 19 guarantees citizens
the freedom of expression, association, and peaceful assembly, Articles 14 and 21 guarantee
everyone the same legal protection and freedom. 4

To repress dissent and violate fundamental rights, particularly those of minorities, the Indian
government has a history of abusing anti-terror legislation such as Terrorist and Disruptive
5 6
Activities (Prevention) Act (TADA), Prevention of Terrorism Act (POTA), and

1
“ Address of the UN Secretary General to the General Assembly, 18 November 1999, ‘Terror Meets Tyranny?
The Interface Between Counter Terrorism and Human Rights - [2002] MurUEJL
38’
<http://classic.austlii.edu.au/au/journals/MurUEJL/2002/38.html#n43> accessed 21 February 2023.
2
2 T.R. Kothandaraman v. T.N. Water Supply & Drainage Board, (1994) 6 SCC 282, ¶ 1.
3
‘The Golden Triangle of the Constitution: Articles 14, 19 & 21’ (LawEscort, 9 September 2019)
<https://lawescort.in/2019/09/the-golden-triangle-of-the-constitution-articles-14-19-21/> accessed 21 February
2023.
4
The Constitution of India, Art.21.
5
Terrorist and Disruptive Activities (Prevention) Act, 1985.
6
Prevention of Terrorism Act, 2001.”
Maintenance of Internal Security Act 7 (MISA) and others. “Nevertheless, these special penal
legislations, that is, TADA, POTA, and MISA, have been repealed by the parliament.”8 The
Unlawful Activities (Prevention) Act, 1967 (UAPA), which addresses terrorist groups and
individuals, has replaced these statutes.

Scholars argue that UAPA grants disproportionate power to the government and police and
allows for unlawful imprisonment and torture. “Numerous stakeholders were outraged by the
most recent UAPA amendment in 2019.9 Among other things, the 2019 amendment allowed
the central government to identify individuals as terrorists without court review or prior to
trial.10 A PIL had also been filed in the Supreme Court of India challenging the validity of the
2019 change.11 Additionally, UAPA clauses have been accused of being ambiguous, such as a
lack of a definition of terrorism.”12

Being the major anti-terror statute in India, the author believes it is crucial to address the
concerns with UAPA in light of these and other points covered in the article.

II. A BRIEF OVERVIEW OF UAPA

The UAPA has generated debate in recent years as a result of several amendments that have
given the police and the federal government disproportionate power. It is crucial to appreciate
the legislative background of this 50-year-old Act in order to completely comprehend the
critiques levelled against it. The author summarises the legislative background of the UAPA
in this part and examines its problematic clauses.

7
“ Maintenance of Internal Security Act, 1971.
8
See, ‘In Illustrations: A Brief History of India’s National Security Laws’ <https://thewire.in/law/in-
illustrations- a-brief-history-of-indias-national-security-laws> accessed 21 February 2023.
9
‘“Unlawful” Amendment to UAPA 2019: A Brief Analysis’ (NewsClick, 22 August 2019)
<https://www.newsclick.in/UAPA-Amendment-2019-Narendra-Modi-Government-Amit-Shah-Anti-Terrorism-
Laws> accessed 22 February 2021.
10
‘Constitutionality of India’s Unlawful Activities (Prevention) Amendment Bill, 2019: India’s McCarthyism
Moment’ (OHRH, 14 August 2019) <https://ohrh.law.ox.ac.uk/constitutionality-of-indias-unlawful-activities-
prevention-amendment-bill-2019-indias-mccarthyism-moment/> accessed 22 February 2023.
11
Sajal Awasthi v. Union of India, Writ Petition (Civil) 1076 of 2019.
12
The Unlawful Activities (Prevention) Act, 1967 as amended in 2004, 2008, 2012, 2019.”
A. Legislative History

“The UAPA was passed in 1967 with the principal intent of combating illegal activity by
people, organisations, and associated issues.”13 “The Criminal Law Amendment Act of 1908,
which utilised the word "unlawful association" to criminalise the Indian national movement
and stifle rallies and public demonstrations, actually represents where UAPA's roots may be
found.”14 “After India's independence, the government criminalised and repressed resistance
by enacting legislation like the UAPA. Section 3 of the 1967 act was used by the central
government to ban those organisations which sought secession from India by simply
declaring them to be unlawful and thus banned.”15 From the start of the twenty-first century,
the UAPA has undergone several amendments, with notable modifications occurring in 2004,
2008, 2012, and 2019, getting more and more authoritarian each time. 16

“The 2004 amendment to UAPA heavily referenced the POTA and TADA, which were both
repealed, and included several of its clauses, such as expanded police authority, the admission
of evidence gathered while in police custody, and special courts.”17 A number of revised
chapters, including those on "punishment for terrorist activities," 18 "forfeiture of proceeds of
terrorism,"19 and "terrorist organisations,"20 were also included in the amendment. “It also
changed the definition of "illegal activity" to include terrorist acts and organisations without
defining them.”21
13
“ Preambular note, The Unlawful Activities (Prevention) Act, 1967 Act No. 37 of 1967.
14
Anushka Singh, Criminalising Dissent: Consequences of UAPA, Economic and Political Weekly, September
22, 2012, Vol. 47, No. 38 (SEPTEMBER 22, 2012), pp. 14-18, at p. 14.
15
‘Fifty Years of Unreasonable Restrictions Under the Unlawful Activities Act’ (The Wire)
<https://thewire.in/rights/uapa-anti-terrorism-laws> accessed 22 February 2023.
16
See ‘The UAPA Amendments: What It Really Means’ (Hindustan Times, 9 August 2019)
<https://www.hindustantimes.com/analysis/the-uapa-amendments-what-it-really-means/story
9gOsDNk1syqxyYd0iFeHDN.html> accessed 22 February 2023.
17
Supra note 15.
18
The Unlawful Activities (Prevention) Act, 1967, Chapter IV § 15 to § 23.
19
The Unlawful Activities (Prevention) Act, 1967, Chapter V § 24 to § 34.
20
The Unlawful Activities (Prevention) Act, 1967, Chapter VI § 35 to § 40.
21
The Unlawful Activities (Prevention) Act, 1967, § 2 (g).”
 22
In reaction to the Mumbai attacks, the 2008 amendment substantially increased police
authority by allowing detention without an official accusation, imposing strict bail
23
requirements, and lengthening the maximum time of incarceration. The 2012 amendment
expanded the definition of "terrorist act" under the UAPA to include economic violations that
posed a threat to India. 24

“The most recent amendment passed in 2019 by the NDA administration was sharply
25
condemned by the populace. The central government now has the power to label people as
terrorists without the involvement of the judiciary and before their trial even starts, as was
noted in the introduction.”26 As a result, the fundamental tenet of criminal law—that one is
innocent until proven guilty—is in contradiction with the UAPA.

Broadly, the UAPA has become more authoritarian over time as a result of changes giving
the central government and police more and more power. We can understand how the
provisions of UAPA provide the central government and police an excessive amount of
power and how they abuse these laws by looking at the history of UAPA and its relationship
to POTA, which served as a model for UAPA revisions.

B. Unabated Powers to Authorities under the Act

“The UAPA has been criticised of granting too much authority to the central government and
police authorities in order to stifle political opposition, perpetrate violence, and persecute
minorities.”27 It is consequently critical to comprehend the UAPA's problematic sections.

22
“ Supra note 15.
23
The Unlawful Activities (Prevention) Act, 1967, § 43(d).
24
The Unlawful Activities (Prevention) Act, 1967, § 15(1).
25
Amid Opposition Concerns, the UAPA Amendment Bill Is Passed’ (TheLeaflet, 25 July 2019)
<https://www.theleaflet.in/amid-opposition-concerns-the-uapa-amendment-bill-is-passed/> accessed 22
February 2023.
26
The Unlawful Activities (Prevention) Act, 1967, § 36.
27
Supra note 9.”
“The police cannot detain someone for longer than 24 hours under the CrPC without the
28
authority of a court magistrate. Police custody is limited to the first 15 days following
arrest, and courts are typically hesitant to give complete custody. Instead, they often remand
the individual for a few days and compel the police to bring them in court on a regular
basis.”29 This contributes to ensuring that restrictions on the right to liberty are justified and
overseen by the judiciary. Furthermore, the CrPC mandates that the police finish their
investigation within 60 to 90 days, after which the accused is eligible for bail. 30

The UAPA, on the other hand, provides a separate legal reality for persons charged with
offences under the act. “The UAPA provides for 30 days of police custody (rather than 15
days under the CrPC) and empowers police to arrest the individual at any time throughout the
inquiry (rather than just at the beginning). The UAPA also authorises a court to order
detention for up to 180 days (vs. 60/90 under the CrPC), which is a violation of Article 21 of
the Constitution.”31 The longer the police custody duration, the more likely physical and
mental torture, while the prolonged inquiry period allows for protracted imprisonment even
when no proof of guilt exists.

“Apart from the question of prison custody, the UAPA takes a different approach to bail than
Indian criminal jurisprudence. Typically, bail is the rule and incarceration is the exception,
with anticipatory bail accessible to people who are apprehensive of being arrested. 32 Yet, the
UAPA prohibits anticipatory bail, making it difficult to secure bail even under normal
circumstances. The court may only release a person on bail under the UAPA if they are not
guilty at an early stage of the trial and if the court does not depend on police evidence which
are case diary or the report of police officer to opine that the charge against the person is
prima facie true. The UAPA also imposes a reverse burden on the accused to prove their

28
“ The Code of Criminal Procedure, 1973, § 167(1).
29
How The UAPA Is Perverting the Idea of Justice’ (Article 14, 16 July 2020) <https://www.article-
14.com/post/how-the-uapa-is-perverting-india-s-justice-system> accessed 22 February 2023.
30
The Code of Criminal Procedure, 1973, § 167(2).
31
The Unlawful Activities (Prevention) Act, 1967, § 43D (2) (b).
32
The Code of Criminal Procedure, 1973, § 438.
innocence in certain circumstances, which violates the principle of innocent until proven
guilty.”33

“The UAPA also gives the police broad powers of arrest and search, even without a judicial
34
warrant, which breaches the right to privacy. Moreover, Section 35 of the UAPA grants the
central government arbitrary discretionary power to designate an individual or group as a
terrorist or terrorist organisation without any guiding basis. Its arbitrary power contradicts the
equality principle and article 14 of the constitution. Furthermore, the UAPA lacks a sunset
provision, which empowers the central government to prohibit and regulate groups
indefinitely, thereby crushing criticism. Generally, the UAPA gives the police, central
government, and courts broad discretionary authority.”35

III. INTERPRETATION: METHODS, ISSUES AND

INCONSISTENCIES
In this section of the paper, the author discusses how courts have applied the principle of
statutory interpretation in the context of UAPA, how the various principles of statutory
interpretation can be used to determine the provisions of UAPA, and how the application of
the presumption that the legislature does not commit mistakes or omissions, as well as the
explicit non-application of the presumption of consistency with international law, is
problematic.

A. Literal Interpretation.

The first rule of interpretation, commonly known as literal interpretation, states that words in
36
a legislation should be interpreted in accordance with their dictionary or literal meaning.
33
The Unlawful Activities (Prevention) Act, 1967, § 43D (5).”
34
“ Justice K. S. Puttaswamy v. Union of India (2017) 10 SCC 1.
35
Surya Prakash B.S, ‘Making Laws with Sunset Clauses’ (mint, 2 January 2018)
<https://www.livemint.com/Opinion/svjUfdqWwbbeeVzRjFNkUK/Making-laws-with-sunset-clauses.html>
accessed 23 February 2023.
36
Alekhya Reddy, ‘Literally Interpreting the Law- A Appraisal Of The Literal Rule Of Interpretation In India’
16. Manupatra, at p. 2.
This approach assumes that the words of the statute best represent the legislature's intent, and
it is the court's responsibility to interpret the law appropriately. 37 Yet, in UAPA instances, the
courts have deviated from literal interpretation where it interferes with people' fundamental
rights. In the case of Indra Das v. State of Assam, for example, the Supreme Court struck
down section 10 of the UAPA, which criminalises mere participation in a prohibited
organisation, in order to prevent unconstitutionality.38

Similarly, in Jyoti Chorge v. State of Maharashtra, the Bombay High Court ruled that section
20 of the UAPA, which criminalises participation in a banned/terrorist organisation, could not
be read literally to encompass passive membership. 39 Despite these decisions, the courts have
not consistently followed the concept of literal reading when it comes to the criminality of
UAPA membership.

B. Strict interpretation of Penal Statutes.

According to the rule of criminal legislation, penal provisions should be carefully interpreted
40
and in case of ambiguity, decided in favour of the subject. Judge Sinha pointed to the
concept of rigorous interpretation in Tuck v. Priester in R. Kalyani v. Janak C. Mehta, which
holds that if there is a reasonable view of a clause that can prevent a punishment, that
meaning should be embraced. To be enforced, penalties must be clearly imposed, and
adopting an interpretation that would result in an unfair or oppressive conclusion should be
avoided. 41

“Experts contend that the UAPA rules are ambiguous, such as the use of language like
"disclaiming" or "questioning" India's territorial integrity in a clause defining criminal
behaviour. 42 As a result, UAPA, which is a special criminal statute, should be rigorously read
and interpreted in the strictest manner possible. As previously mentioned, where UAPA
37
Id.”
38
“ Indra Das vs State of Assam, MANU/SC/0106/2011, ¶ 31.
39
Jyoti Babasaheb Chorge vs. State of Maharashtra: MANU/MH/1637/2012, ¶ 33.
40
N.S. Bindra, Interpretation of Statute, at p. 824-825.
41
R. Kalyani vs. Janak C. Mehta and Ors.: MANU/SC/8183/2008, ¶ 26.
42
Gautam Bhatia, ‘Bhima-Koregaon and the Fault in Our Laws’ The Hindu (2 July 2018)
<https://www.thehindu.com/opinion/lead/bhima-koregaon-and-the-fault-in-our-laws/article24305910.ece>
accessed 23 February 2023.
provisions conflict with basic rights, the courts have read them down or deviated from their
literal construction. The implementation of these judgements in terms of membership,
however, is contradictory, since some members of the Kabir Kala group were given bail
while others were not.”43 Under UAPA's rigorous interpretation approach, this uncertainty in
meaning should be resolved in favour of the accused.

C. Non application of Principle of Consistency with International law.

“The concept of statutory interpretation states that legislation should be read in accordance
44
with international law unless there is evidence of a conflicting motivation. Article 51 of the
45
constitution underlines the need of adhering to international law. Nevertheless, several
elements of the UAPA,”46 such as Section 43E, which presumes the accused to be guilty
unless proven otherwise, violate international law as specified in the International Covenant
on Civil and Political Rights (ICCPR). This violates the fundamental premise of criminal law,
which states that an accused person is presumed innocent unless proven guilty beyond a
reasonable doubt. Several stakeholders have criticised this clause. Because the legislature
indicated a divergent aim, the courts are forced to disregard the requirement of conformity
with international law in this case. There would have been fewer problems with the UAPA if
the legislature had not violated international law.

D. Application of principle of ejusdem generis.

When a clause in a legislation identifies a group of individuals or objects, the idea of ejusdem
generis, which means "of the same type" in Latin, is utilised in the legal interpretation. It
clarifies the list so that an unwanted connotation cannot be inferred, and the terms are
47
understood according to the context in which they are applied. This notion is also
43
Id.”
44
“ Vepa P. Sarathi, Interpretation of Statutes, Chapter 3 at p. 231
45
The Constitution of India, Art. 51
46
See Amnesty International Public Statement, India: New anti-terror laws must meet international human
rights standards, 18 December 2008<
https://www.amnesty.org/download/Documents/52000/asa200312008en.pdf>
accessed 23 February 2023, at p.2.
47
‘Ejusdem Generis | Wex | US Law | LII / Legal
Information Institute’
<https://www.law.cornell.edu/wex/ejusdem_generis> accessed 23 February 2023.
significant in understanding the UAPA's many clauses that are open to interpretation. Section
15, for example, deals with what constitutes a terrorist act and provides a list of weapons and
drugs that might cause harm. 48 Some clauses, such as Section 7(2) and Section 10(b), contain
49
lists of people or objects that must be interpreted. The principle of ejusdem generis should
be utilised to correctly interpret the legislative purpose underlying these laws. Under Section
10, for example, the word "firearms, ammunition, explosives, or other instrument" should be
read to encompass only weapons of a similar sort, rather than other things such as a knife.

E. Legislature does not make mistakes.

“Because there is a high presumption that the legislature does not make mistakes, the
principles of statutory interpretation do not enable a court to conclude that the legislature
50
committed any faults in writing a statute. As a result, the court has no authority to add
51
missing elements to legislation. The court stated in the case of Kamalaranjan Roy vs.
Secretary of State that any omission in the legislation can only be filled by a new statute or
statutory action, and that the court cannot add words to the act that are not expressly stated
and cannot be reasonably implied based on recognised principles of interpretation. This is
outside the court's authority and comes under statute rather than interpretation.52

The UAPA is based on the POTA, although certain crucial elements are left out, such as
Section 58 of the POTA, which deals with punishment and compensation for police personnel
who engage in malicious behaviour or abuse authority.”53 This gap has not been remedied
despite many changes to the UAPA in 2004, 2008, 2012, and 2019. As a result, a person
offended by a police officer's malicious activities under the UAPA may be unable to pursue
legal action against them. It might be claimed that the lawmakers purposefully removed the
provision of punishment and compensation for malevolent police officers under the UAPA,
which could be detrimental to the affected individual.

48
The Unlawful Activities (Prevention) Act, 1967, § 15.”
49
“ The Unlawful Activities (Prevention) Act, 1967, § 7(2).”
50
R. Kalyani vs. Janak C. Mehta and Ors.: MANU/SC/8183/2008, ¶ 26.
51
Id.
52
Kamalaranjan Roy vs. Secretary of State MANU/PR/0056/1938 ¶ 9.
53
The Prevention of Terrorism Act, 2002, § 58.”
 IV.CONCLUSION
Terrorism is widely recognised as a threat to democracy worldwide, and India requires an
anti-terror law in the twenty-first century. Yet, a deeper review of the UAPA provisions
reveals that it falls short of the benchmarks of effective anti-terrorism law. The ambiguous
wording of the law, the executive's vast discretionary powers, and the absence of judicial
scrutiny all contribute to the suppression of personal liberty.

As a result, while studying the UAPA, it is critical to employ a variety of interpretation

techniques. Because the legislation is a special penal statute, it must be carefully read in
favour of the accused, especially considering its unclear elements. Furthermore, the concept
of ejusdem generis should be used widely to clarify the legislative meaning underlying
certain legislation. It is also required to address the lack of a section equivalent to Section 58
of the POTA, which provides for the punishment and compensation of police personnel who
commit malicious acts. Without this provision, it may be difficult for those who have been
wronged by police to seek justice under the UAPA.