This was after another student alleged they had “abused and threatened to shoot him” for supporting India during the World Cup final on November 19. They also raised pro-Pakistan slogans, “which created fear amongst the students from outside the UT of J&K,” the complaint claimed.
What is UAPA? How has it evolved over the years? What is this ‘softer’ provision, the J&K police is talking about?
The origin of UAPA
The UAPA gives powers to the government to probe and prosecute people for acts of terrorism, and to designate an organisation as an “unlawful association” or a “terrorist organisation”, or an individual as a “terrorist”.
It was enacted on the recommendation of the National Integration Council, set up in 1961 to find ways to counter problems that were dividing the country. In 1962, the Council constituted a committee that recommended introduction of “reasonable restrictions” in the exercise of certain fundamental rights. The UAPA was enacted with the objective of implementing these restrictions.
However, in its original form, the Act largely dealt with secessionist activities, with no explicit mention of terrorism.
Introduction of ‘terrorism’
In 2004, the Act was amended for the first time, with “and for dealing with terrorist activities” added to its title. The UPA government had repealed the much criticised Prevention of Terrorist Activities Act (POTA) that year, and the amendment to the UAPA sought to fill the void left by it.
The amendment introduced Chapter IV (Sections 15 to 23) to the statute, which defines the act of terrorism, the punishment for it, and various activities associated with the same. It also introduced Chapter V which deals with “proceeds of terrorism”, and provides for seizure of such proceeds by authorities and forfeiture of properties owned by those accused of terrorism.
The government also amended Section 1 of the Act, to make illegal acts committed by Indian citizens abroad punishable under the law. In Section 2, which in the original Act defined “unlawful activity” as an act aimed at secession of a part of India or an act intended to disrupt sovereignty and territorial integrity of the country, the government added the clause “which causes or intended to cause disaffection against India”.
Over the years, however, UAPA has further evolved such that it can be invoked in situations which do not appear to be ‘acts of terror’, as the term is generally understood.
Reaction to 26/11
In the aftermath of the 26/11 Mumbai attacks in 2008, another set of amendments broadened the definition of terrorism in the Act, and introduced longer incarceration and more stringent bail conditions.
Crucially, a line was added to Section 15 which granted sweeping powers to the government to virtually construe any disruptive act as an act of terrorism. In the section, which defined terrorism by way of use of explosives, or poisons and gases, Parliament introduced the vague phrase “any other means”.
This has allowed authorities to book protestors under the Act, with Umar Khalid’s arrest for participating in anti-CAA protests a prime example. Punishment for such “terrorist acts”, as per Section 16, can stretch up to the award of the death penalty.
Section 43, which dealt with which officers could investigate terror cases, was further expanded delegating powers to more levels of officers. Most importantly, it extended the duration of police custody from a maximum of 15 days to 30 days, and judicial custody from 90 to 180 days.
The amendments not only ruled out anticipatory bail in cases of terrorism, they made securing bail after arrest extremely difficult. A new clause said that no court would give bail to an accused if it was satisfied that the accusations made were “prima facie true”.
Moreover, through Section 43 E, it put the burden of proof on the accused if she is found in possession of arms or ammunition used in an act of terrorism. The clause said the court would presume that the person had committed the act of terrorism.
Fake Currency, a terror act
In 2012, the UAPA was further amended to include “economic security” of the country in the ambit of terrorism. Under this, the statute went on to designate production, smuggling and distribution of counterfeit Indian currency as a terrorist act.
Notably, the amendments introduced Section 22 A to Chapter IV, where if a company was found involved in a terror activity, every person in charge of running the business of the company would be held guilty of the offence, unless they could prove the act was committed without their knowledge. Further insertions (through 22B and 22C) included trusts and societies with similar provisions for punishment. It is under these sections that NewsClick editor Prabir Purkayastha was arrested in October.
The amendments also increased the period an organisation could remain declared as “an unlawful association” from two years to five years.
The 2019 amendment
In 2019, the Narendra Modi government pushed through Parliament a controversial amendment in the Act which gave the government the powers to designate an individual as a terrorist. Until then, only organisations could be designated as “terrorist”. This was criticised as overturning the founding principle of the criminal justice system that presumes innocence until proven guilty for every suspect.
The amendment also allowed the National Investigation Agency (NIA) powers to seize assets belonging to terrorists across the country without seeking consent or even informing the state concerned. It allowed even an NIA inspector to become the investigating officer of a terror case. Earlier, only DySPs could do so.
The so-called ‘softer’ section
The students in Jammu and Kashmir have been booked under Section 13 of the UAPA, which is to do with “punishment for unlawful activities.”
“Whoever — (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine,” the section says.
Section 13 punishes ‘unlawful activities’ as opposed to ‘terrorist activities’. The latter, as previously mentioned, have far more stringent punishments including life imprisonment and death penalty. However, even under this section, provisions to do with the custody of accused remain applicable — meaning bail would be hard to come by.
Activists gathered at the Pune district collectorate for staging a protest against the government for the death of Stan Swamy, an accused in the Elgaar Parishad – Koregaon Bhima case, and for repealing the Unlawful Activities Prevention Act (UAPA). (Express photograph by Arul Horizon) 
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