Unlawful Activities (Prevention) Amendment Bill, 2011

During 1961, a was conference convened by Prime Minister Jawaharlal Nehru to find ways and counter the problems that were dividing the country including attachment to specific communities, castes, regions and languages. The outcome of this conference was National Integration Council. The National Integration Council thus met for the first time in June 1962 to review national integration issues and make recommendations.

  • At present National Integration Council works under the chairmanship of Prime Minister and has more than 100 members from wide array of social segments of India.
  • It was lately reconstituted also in 2005.

In the first half of 1960s decade, the NIC had appointed a committee on National Integration and Regionalisation, which was given a mandate to look into putting reasonable restrictions on associations engaged in unlawful activities in the interests of the sovereignty and integrity of India. This committee made recommendations and based upon these recommendations, the Constitution (16th Amendment) Act, 1963 and the Unlawful Activities (Prevention) Act were enacted. The sole idea of UAPA was to impose such reasonable restrictions on fundamental rights.

Out of the above two enactments, the Constitution (Sixteenth Amendment) Act, 1963 empowered the Parliament to impose, by law, reasonable restrictions in the interests of sovereignty and integrity of India, on the:

  • Freedom of Speech and Expression;
  • Right to Assemble peaceably and without arms; and
  • Right to Form Associations or Unions.

Thus, Unlawful Activities (Prevention) Act was enacted in 1967. This act empowered the Central Government to declare any association unlawful if Central Government is of opinion that any association is, or has become, an unlawful association.

  • After declaring the association unlawful by the Central Government by notification, the central Government would move to the "Unlawful Activities (Prevention) Tribunal" within 30 days for the purpose of adjudicating whether or not there is sufficient cause for declaring the association unlawful.
  • The "Unlawful Activities (Prevention)Tribunal" was consisting of one person, to be appointed by the Central Government, this person must be a judge of a High Court.
  • The act provided several penalties and punishments for the people associated with the unlawful organizations.

However, India has an array of similar working acts. Lately UAPA has been used as an antiterrorist law as at present we don’t have such law enabled in the country. There is a brief story behind it.

India had enacted TADA (Terrorist and Disruptive Activities Prevention Act) in 1987, which was one of the first antiterrorist activities legations. But TADA was accused of laying down a procedure that was allegedly unfair to the accused. The result was that the act was revoked in May 1995.

But it was felt that India must have an antiterrorist law. So, in a joint session of parliament in 2002, POTA (Prevention of Terrorism Act) was enacted. POTA was basically a softer version of TADA.

  • For example, under TADA an accused could be kept in police custody for 60 days, under POTA this period was 30 days.
  • Similarly, TADA permitted an accused to be kept in judicial custody for one year, POTA allowed that for 180 days.
  • The minimum punishment under TADA was five years while under POTA it was just three years.

But POTA was also taken back in 2004 by the UPA Government. India was once again without an antiterror law. The Unlawful Activities (Prevention) Act, 1967 was hardly a substitute, but in 2004, this act was amended and was given more teeth.

  • Under POTA suspects could be detained for up to 180 days without charge. The 2004 amendment of the UAPA Act done away that provision and brought it in sync with the Section 167(2)(a) of the Code of Criminal Procedure, which stipulates that all arrested persons have to be produced within 24 hours.
  • Suspects are now also entitled to apply for bail, in accordance with the Code. This was only permissible under POTA after one year.
  • The question is why POTA was repealed? Political reasons apart, POTA was accused of egregious misuse by way of interrogations that amounted to torture, or cruel, inhuman or degrading treatment. Any confessions made under interrogation would be admissible as evidence in court. Apart from fulfilling its election manifesto, the United Progressive Alliance (UPA) Government wanted to show a sincere commitment to abolishing torture in India by ratifying the United Nations Convention against Torture (CAT).

Then, the entire provisions of POTA were incorporated in the Unlawful Activities Prevention Act when it was amended in 2004. In the amendment to the 1967 UAPA, the word "terrorist" was introduced in the law and chapters two to four of POTA have become chapters four to six of the UAPA 1967. The schedule of POTA, which lists out banned organisations, is now in the schedule of the amended Act.

Nevertheless, the amended UAPA has also been criticised for being Draconian. The act was under severe criticism when Chhattisgarh government detained Binayak Sen in 2007.

In 2008, the government again geared up to make the law more stringent to fight terrorism in a more effective manner. The Unlawful Activities (Prevention) Amendment Bill introduced in 2008 aimed at strengthening the arrangements for speedy investigation, prosecution and trial of cases related terrorism while at the same time guarding against any possible misuse of such provisions. At that time, a National Investigation Agency Bill was also introduced which inter alia provided for setting up an agency at the Central level with powers to probe terrorism and other crimes having national ramifications across the country.

In 2010, the country joined the Financial Action Task Force (FATF). FATF is an intergovernmental body seeking to fight money-laundering and terrorist financing. As part of its membership, India agreed to adopt legislation to implement these goals by 15 March 2012. The Bill was introduced in the Lok Sabha on 29 December 2011 to ostensibly comply with FATF’s policy. This was the basic reason that the Unlawful Activities (Prevention) Amendment Bill, 2011 was introduced on December 29, 2011 by the Minister of Home Affairs. The Bill was referred to the Standing Committee on Home Affairs on January 13, 2012. The Committee was expected to table its report in 2012.

The latest amendment bill makes the Unlawful Activities (Prevention) Act, 1967 more effective in preventing unlawful activities, and meet commitments made at the Financial Action Task Force. The Bill amends the original Act to include the definition of a ‘person’. A ‘person’ shall include (i) an individual; (ii) a Hindu undivided family; (iii) a company; (iv) a firm; (v) an association of persons or a body of individuals; (vi) every artificial juridical person; (vii) any agency, office or branch owned or controlled by any person falling within any of the preceding sub-clauses.

What is new in the amendment bill?

The original Act defined ‘proceeds of terrorism’ as:

Property derived from commission of any terrorist act or traceable to a terrorist act; and

Property which is being used or is intended to be used for the purpose of a terrorist organization or terrorist gang. the amendment replaces the second part of the above definition with ‘property which is being used, or is intended to be used for a terrorist act or for the purpose of an individual terrorist or a terrorist gang or a terrorist organization’.

It also clarifies that the ‘proceeds of terrorism’ include property intended to be used for terrorism. The Bill also expands the definition of ‘property’ by using the phrase ‘instruments in any form including but not limited to’ those listed in the original definition.

  • The Bill increases the period for which an association can be declared as unlawful from two years to five years. It expands the definition of ‘terrorist act’ to include: Acts that threaten the economic security of India and damage its monetary stability by production, smuggling or circulation of ‘high quality’ counterfeit currency. The security features that define ‘high quality’ are laid down in the Third Schedule.
  • Acts of demanding bombs, explosive/ inflammable substances, lethal weapons, poisonous chemicals or biological, radiological, nuclear material with the intention of aiding, abetting or committing terrorism.
  • Acts that involve detention, abduction, threats to kill or injure, or other actions so as to compel an international or inter-governmental organization to comply with some demand.

Acts within the scope of and defined in any of the treaties listed in the Second Schedule of the Bill

The Bill enlarges the scope of punishment for raising funds:

  • Under the original Act, if a person raises or provides funds, knowing that such funds are likely to be used to commit a terrorist act, he shall be punishable with imprisonment of not less than five years and a fine.
  • Under the Bill, raising funds likely to be used (in full or in part) to commit a terrorist act or for the benefit of terrorists shall be punishable irrespective of whether the funds have been raised from legitimate or illegitimate sources.
  • The Bill clarifies that raising funds shall include production or circulation of counterfeit Indian currency. It also states that ‘participating, organising or directing’ fund raising activities shall constitute an offence.
  • The Bill inserts new sections to include offences by companies, societies or trusts. Every person who, at the time of the offence, was responsible for the conduct of the business shall be punishable with imprisonment for seven or more years and a fine between five to ten crore rupees.

The Bill confers additional powers upon the court to provide for attachment or forfeiture of:

  • Property equivalent to the counterfeit Indian currency involved in the offence.
  • Property equivalent to the value of the proceeds of terrorism involved in the offence.
  • All or any of the property of an accused, based on evidence produced before the court, in cases where the trial cannot be concluded.

Thus, we conclude that the Unlawful Activities (Prevention) Amendment Bill has been drafted to meet India’s obligations to the inter-governmental Financial Action Task Force on combating money-laundering and terrorist financing. However, it has been alleged that the powers it will confer on the government could be easily abused to permit prosecution of mass organisations or non-governmental organisations working in communities allegedly associated with banned groups. There are many other concerns and it is essential that the Bill be referred to a standing committee of Parliament before it is considered for enactment. (Input: various sources)

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