Opinion Supreme Court must use cases pending against UAPA to examine its scope

Since the passage of the Terrorist and Disruptive Activities (Prevention) Act (TADA) in 1985, and the Prevention of Terrorism Act (POTA) in 2002, the extraordinary nature of anti-terror laws has remained a matter of intense political debate. TADA and POTA were known for their lengthy pretrial detention, in-custody torture, false prosecutions, and forced confessions. Minority community members, in particular, paid a heavy price. The 2004 version of UAPA was supposed to be a more humane variant of its predecessors.

While repealing POTA in 2004, the UPA government stated that POTA “was a slur on our democracy” and not needed as “there was no dearth of laws for prevention of terrorism”. The government dusted off UAPA, enacted in 1967 to declare illegal any organisation questioning India’s sovereignty, and turned the act into an anti-terror law. Since then, the law has undergone three significant revisions — 2008, 2013 and 2019. Each modification has made it more stringent. The law has not only expanded beyond its original purpose but is proving to be more oppressive than TADA and POTA ever were.

In no liberal democracy will the act of clicking pictures of security personnel invoke provisions of an anti-terror law. There appears to be a significant difference between what India considers to be terrorism and what other democracies like the UK, Australia, Canada and the US do. Ironically, Indian anti-terror measures were inspired by legislation from these countries and United Nations Security Council resolutions.

The government has prosecuted political dissidents under anti-terror laws. But on the global stage, in 2022, India objected to the inclusion of “right-wing extremism” and “violent nationalism” in the definition of terrorism in the UN General Assembly Global Counter-Terrorism Strategy. Far-right extremism is not terrorism, according to the current government, but left-wing extremism is.

The Indian government’s current understanding is at odds with its approach in the past. While introducing POTA in Parliament, former Deputy PM L K Advani justified the legislation to deal with the “war-like situation created by state-sponsored cross-border terrorism”. TADA and POTA were never meant to address ordinary crimes already covered by existing penal statutes. Advani accepted in Parliament that TADA was misused and pitched POTA as a better version of TADA. UAPA was supposed to further remedy POTA’s violations of human rights and liberties.

How did we end up in a situation where an anti-terror statute has transformed into an instrument of terror?

The Supreme Court, through judicial interventions, had evolved many safeguards (both procedural and substantive) in how TADA and POTA were applied. Categorising TADA detainees into four different brackets to grant bail (Shaheen Welfare Association v Union of India, 1996 ) and setting up state and central review committees to prevent the misuse of TADA were two such major judicial innovations (Kartar Singh v State of Punjab, 1994). But in the UAPA era, the court has been unable to provide adequate safeguards against arbitrary arrests, malicious prosecutions and long pre-trial detentions. The Court’s ruling in NIA v Zahoor Ahmad Shah Watali (2020) has made the grant of bail almost impossible.

Not long after he retired, Justice Rohinton Nariman urged the SC to strike down “the offensive portions of the UAPA”. However, the debate on UAPA needs to be taken beyond the validity of a few select provisions. The law’s very purpose and scope need careful examination. The main question is of proportionality which is a fundamental principle of our Constitution. Does UAPA violate the fundamental justice, due process, and individual liberty that are the cornerstones of our democracy?

The Court must determine whether the breadth and consequences of UAPA are substantially out of proportion to its declared goals. Terms like “terrorist act”, “unlawful activity”, “advocacy”, “conspiracy”, “likely to threaten”, and “likely to strike terror” have been framed vaguely and seem to give agencies arbitrary powers. There is a lack of standards for prosecution. Instead, the act allows for a blind reliance on police cases. Even though terms like “terrorist act” are subjective and difficult to define, one can nevertheless establish the appropriate limits for judicial judgement. The key is to have a law that effectively combat terrorism and still conform to the imperatives of our Constitution. The ability to identify, neutralise, and bring terrorists to justice should be a priority. However, the authorities must be subject to stringent, clear controls and impartial oversight.

A few petitions are pending before the SC, challenging the validity of the 2019 amendment by which the government can now designate individuals as terrorists. The Court must seize the opportunities presented by these challenges to spell out precisely the objectives of the law.

UAPA has one of the worst records for prosecution success. According to a PUCL report in 2022, less than 3 per cent of arrests made under the UAPA resulted in convictions between 2015 and 2020. Only 1,080 of the 4,690 people detained under the UAPA between 2018 and 2020 received bail, according to the report. Unlike TADA and POTA, UAPA has never been constitutionally reviewed. Its repeated abuse is a blot on our democracy.

The writer is associate professor, Jindal Global Law School