Description: A critical analysis of Sections 25, 35 and 43(ba) of the Act.
The Unlawful Activities (Prevention) Act 1967 (UAPA) (1) was enacted after the recommendation of the Committee of National Integration and Regionalism to look into the reasonable restrictions in the interests of sovereignty and integrity of India on freedom of speech and expression, right to assemble peacefully and without arms and right to form associations or unions, guaranteed under Article 19(1) of the Constitution.
In 2019, the Parliament carried out certain amendments to the Act, which was notified on Aug. 8, 2019. This article will be critically analysing a few of the amended provisions of the Act
CAUSING CONFLICT IN THE FEDERAL SYSTEM OF GOVERNANCE
The first controversial issue in the 2019 amendments involves the National Investigative Agency (N.I.A.) in the investigation process for offences under UAPA. The National Investigative Agency Act 2008(2) was amended in the same monsoon session of Parliament in which UAPA was amended. So, it is not surprising that the amendments in both Acts are complementary to each other. Section 25(3) of UAPA deals with the powers of investigating officers and the Designated Authority. It has been amended to include an investigation by N.I.A. officers, after getting approval from Director General of N.I.A., into the properties representing proceeds of terrorism, and make seizure orders or attachment orders. Section 43(ba) (4) was added to allow any N.I.A. officer above the rank of Inspector to be competent to investigate offences under the Act. Moreover, the N.I.A. can now investigate cases on national security and crimes related to human trafficking, firearms, explosives, cyber terrorism, and counterfeit currency.
However, this raises concerns about the federal character of our democratic system. Federalism in India can be characterised by the three lists under the 7th Schedule of the Constitution – Union List, State List and Concurrent List. If the Centre or the State Legislature invades into a subject matter allocated to the other, it would affect the federal system’s smooth functioning and cause conflict in the separation of powers. After the amendment to Section 25 (5), the Central Government, on its own opinion or suomotu, direct the N.I.A. to investigate offences under UAPA, apart from the scheduled offences N.I.A. Act. Thus, the N.I.A. is gradually interfering more and more into the subject matter allocated to State legislatures, as Public Order (Entry-1) and Police (Entry-2) comes under the State List.6
Generally, N.I.A. conducts investigations against offences of defence, and national security of India, a subject matter of Union List, and UAPA is there to make powers available for dealing with activities directed against the integrity and sovereignty of India. In that sense, the Central Government is not incorrect to make amendments in Section 25 and 43(ba) of UAPA to order N.I.A. to investigate. But it does affect the independence and functioning of state governments.
This issue was further aggravated when the Central Government decided to hand over the 2018 BhimaKoregaon case investigations to the N.I.A., just before the Maharashtra State Government could decide on whether to constitute a Special Investigation Team (S.I.T.) to look into the investigation. Several Maharashtra state ministers claimed the Centre’s decision to be unconstitutional. (7)
As far as constitutionality is concerned, the Centre has acted within its legal boundaries. In Pragya Singh Thakur vs. the State of Maharashtra (8), the Court heard whether the Parliament could constitute N.I.A. to investigate certain offences. The Court observed that the Centre included the central Bureau of Investigation (C.B.I.) as it comes under the subject matter of the Central Bureau of Intelligence and Investigations under Entry-8 of Union List. If Parliament could set up C.B.I., its powers could not be restricted to enact legislation to constitute an investigating agency at the national level to investigate and prosecute offences affecting India’s sovereignty, security, and integrity. However, the Court did not specify whether the Parliament alone has the power to constitute an agency for the investigation of the offences covered in the schedule to the N.I.A. Act. (9)
To clear the confusion, we look into the Constituent Assembly Debates. While discussing the wording of Entry-8 of Union List, Naziruddin Ahmad (10), one of the Assembly members, pointed out that the Assembly had already concluded that investigation into a crime is a provincial subject. He questioned that if the word ‘Investigation’ is added in Entry-8, it would also allow the Central Government to investigate, resulting in two parallel investigations for a single crime, one by the Union Government and the other by the State Government. There would be clashes and conflicts between two concurrent authorities, and nobody would know whose charge-sheet or final report would be acceptable. In reply, Dr. B.R. Ambedkar said:
“The point of the matter is, the word “investigation” here does not permit and will not permit the making of an investigation into a crime because that’ matter under the Criminal Procedure Code is left exclusively to a police officer. Police is solely a State subject; it has no place in the Union List. Therefore, the word “investigation” is intended to cover general enquiry to find out what is going on. This investigation is not investigation preparatory to the filing of a charge against an offender which only a police officer under the Criminal Procedure Code can do.” (11)
Thus, it is clear that the framers of the Constitution did not intend to investigate offence to the Central Government. Yet, N.I.A. officers are empowered to investigate crimes under UAPA because it comes within the ambit of Entry-2A of Union List. The reason behind this is that unless there is a centrally constituted agency for the investigation of such offences, the real goal cannot be accomplished.(12)
ARBITRARINESS OF SECTION 35
The next controversial issue pertains to Section 35 of UAPA. Section 35 comes under Chapter VI of the Act, and the heading of the chapter has been amended from ‘Terrorist Organisations’ to ‘Terrorist Organisations and Individuals.’ It implies that individuals can be booked and arrested under UAPA as terrorists. However, the Act does not specify when the individual can be declared a terrorist – either at the time of filing of charges or after conviction in terrorism-related cases.
Much has been said and criticised about this amendment. However, a critical aspect of the amendment has not been discussed as much as it should have been. The amended Section 35(2) of the Act states that the Central Government would exercise its power under Section 35(1)(a) in respect of an organisation or an individual only if it believes such an organisation or individual is involved in terrorism. Adding an organisation’s or individual’s name to the First Schedule or Fourth Schedule, respectively, only based on the belief of presumably an officer or officers of Central Government, is very subjective and arbitrary. The framers of the statute seemed to have missed this aspect.
Usually, where the Centre, or in particular, the Union Executive decides on its own, the statute is worded as ‘reason to believe’ or ‘record the reasons in writing’ for taking such action/decision or for arrest purposes. When the statute is worded in this manner, it becomes imperative for the Centre to have strong reasons for taking action. However, in UAPA, the use of only ‘believes’ implies that the Centre may arrest people from any terrorist organisation or an individual based on a belief for any whimsical reason.
There have been cases where one could question the authorities to give strong reasons for arresting individuals for offences under UAPA. Earlier in September, the J&K Police arrested nine local cricketers under UAPA to organise and play a cricket match in memory of their friend who had joined Kashmir’s militancy and was killed in a gunfight. The police arrested the local cricketers for glamorising hostility .(13) It are beyond one’s understanding of how someone could be charged for an act which is neither committing, promoting, encouraging or preparing for acts of terrorism, as given in Section 35(3) of UAPA.
There is another instance (14) where Kerala Police arrested two students – Allan Shuaib and ThwahaFasal – for offences under UAPA for being active C.P.I. (M) party members been distributing “Maoist literature” to revive the organisation in Kerala. The case was transferred to N.I.A., and a superior N.I.A. court released them on bail, holding that mere possession of Maoist literature, presence in anti-government protests, or strong political beliefs does not make a person complicit in terrorist activity. The Court observed that most of the documents seized from the accused students’ houses, which the N.I.A. believed was incriminating, were freely available in the public domain and have been discussed widely and do not point to any violent terrorist activity by the accused persons.
The grounds for an arrest in the above cases show that the police did not have a concrete basis for making an arrest, instead had shallow, subjective beliefs.
Although having the words’ reason to believe’ in a provision seems subjective, it depends on the officer making the decision, but it is not so. For instance, Section 147 of Income Tax Act 1961, which deals with provisions of income-escaping assessment of an assessee, states that if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such payment. The Supreme Court has extensively explained the interpretation of ‘reason to believe’ in Section 147 in many cases. In Income Tax Officer v. LakhmaniMewal Das (15), the Court observed that ‘Reason to Believe’ is not a subjective satisfaction. Rather the reasons should be in good faith. The Court can also examine whether the reasons to believe have rational nexus with the income tax officer’s belief that income escaped assessment.
In Srikrishna P. Limited v. Income Tax Officer (16), while considering the issue of whether income of the assessee escaped assessment, the Court observed that it could not judge the sufficiency of reasons forming the belief of Income-tax officer to open evaluation, but may examine its conclusions, whether its opinion could be created from available material facts and such facts had rational nexus in forming the belief.
Therefore, before arresting an individual under UAPA offences or adding any name to the First Schedule or the Fourth schedule of UAPA, the Central government should consider whether their belief that such persons involved in terrorism are based upon bonafide reasons and those reasons have rational nexus with their belief.
Laws are essentially a product of humans, and no human is perfect. Thus, no law is flawless. Every law has room to make amendments, and UAPA is no exception to it. The 2019 amendments to UAPA may have made the law stringent, and many have questioned the Legislature’s intention for enforcing them. Keeping aside that aspect, if we see the amendments solely based on its legality, we come across many loopholes, as observed in Section 25, 35 and 43(ba) of the Act. Moreover, even after the amendments, the Legislature has not yet explained the meaning of ‘disaffection’ in the definition of Unlawful Activity u/s 2(o)(iii) of the Act. The Act’s drawbacks show that as long as they exist, the law can be used unjustly by the Central Government.
- Unlawful Activities (Prevention) Act 1967, No. 37, Acts of Parliament, 1967 (India).
- National Investigative Agency Act 2008, No. 34, Acts of Parliament, 2008 (India).
- Supra note 1, at Sec 25.
- Supra note 1, at Sec 43(ba).
- Supra note 1, at Sec 25.
- SarimNaved, Between the N.I.A. Amendment and Now UAPA, the Squeeze on Human Rights is On THE WIRE (Jul. 24, 2019), https://thewire.in/government/the-centre-wants-to-give-the-nia-more-powers-but-it-wont-explain-why.
- Sukanya Shanta, ‘Centre’s Decision to Hand BhimaKoregaon to N.I.A. Unconstitutional’: Maha Home Minister, THE WIRE (Jan. 25, 2020), https://thewire.in/government/centre-bhima-koregaon-case-nia-anil-deshmukh.
- Pragya Singh Thakur v. State of Maharashtra, (2011), 10 S.C.C. 455
- Abdul KhaderKunju S., Explainer: Here’s How Handing Over UAPA Cases to N.I.A. Affects the Federal System, THE WIRE, (Jan. 29, 2020), https://thewire.in/government/uapa-nia-act-centre-state.
- CONSTITUENT ASSEMBLY DEBATES, Vol. 9, Aug.29, 1949, speech by Nazirudin Ahmad, 9.126.78, https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-29.
- Id., speech by B.R. Ambedkar, 9.126.98, https://www.constitutionofindia.net/constitution_assembly_debates/volume/9/1949-08-29.
- Supra. Note 9
- Qadri Inzamam and Mohammad Haziq, Empty Fields: The Use (and Abuse) of UAPA in Kashmir, THE DIPLOMAT, (Sep. 25, 2020), https://thediplomat.com/2020/09/empty-fields-the-use-and-abuse-of-uapa-in-kashmir/.
- Ajoy Ashirwad Mahaprashasta, ‘Right to Protest a Constitutional Guarantee’: Kochi N.I.A. Court Grants Bail to 2 UAPA-Accused, THE WIRE, (Sep. 10, 2020), https://thewire.in/rights/kochi-nia-allan-shuaib-thwaha-fasal-maoist-uapa.
- The Income Tax Officer v. LahkmaniMewal Das (1976) 3 SCC 757.
- Srikrishna (P) Ltd. v. Income-tax Officer (1996) 9 SCC 534