The Unlawful Activities Prevention Act, 1967: Unravelling Its Unconstitutionality

The State has been chastised over the years for using the Unlawful Activities (Prevention) Act, 1967 (Act) to stifle public dissent against it, for example, by filing omnibus cases to arrest people engaged in human rights activism, journalists, and academicians. It appears that detainment under the provisions of this Act can be founded exclusively on doubts. For example in the case of Kanchan Bala, Kanchan Bala was arrested in 2011 under this Act on the basis of a letter recovered from her that belonged to someone else who had been charged under the Act for participation in a terrorist organization. Importantly, a list of books as referred to in the letter, was said to form the incriminating evidence for the arrest. Recently, two Human Rights activists Anand Teltumbde and Gautam Navlakha were denied bail in the popular Bhima Koregaon case, involving conflicts between Dalits and upper-ranking Hindus. Moreover, in the year 2020, the Indian Supreme Court even denied anticipatory bail to the two activists. More activists were arrested in 2018 for their role in the same case and still continue to be in detention in spite of the prosecutor failing to prove any charges against them. The Indian Supreme Court even upheld the arrest of the activists in the year 2018. Not to mention Father Stan Swamy who died languishing in jail and was booked under this very Act in the same case. However, one of the activists, Sudha Bhardwaj has been recently granted bail by the Bombay High Court after she spent more than three years in jail.

This article analyses the constitutionality of the Act, the exercise of arbitrary powers by the authorities under the Act and reasons as to why the Act should be repealed.

The Act seems to have been enacted to prevent the "association of unlawful activities" and to protect the "sovereignty and security of the state". The Government enacted this Act during the emergency era (1962-1968) to expand its power to "ban associations" in the interest of the State's sovereignty and territorial integrity. Its origins lie in the 16^th constitutional amendment of 1963 that was passed on the recommendation of the National Integration Council when Jawaharlal Nehru was the Prime Minister. This amendment was in line with Article 19(2) of the Indian Constitution that posed reasonable restrictions on certain fundamental rights like the right to assemble peacefully without arms and the freedom of speech and expression, on the grounds of protecting the security of the State. Interestingly the words, "terrorism" was absent in the Act. It was only by way of the 2004 amendment to the Act that the words "terrorism" was included in the Act post the repealing of the Prevention of Terrorism Act of 2002.

The Act by way of Section 43(D)(5), prohibits a person charged under the Act from being released on bail unless the public prosecutor has been heard. This calls into question the legal doctrine established in the landmark case of State of Rajasthan v. Balchand alias Baliya (1977) 4 SCC 308, which states that "Bail is the norm and jail is the exception". This is exacerbated by the Supreme Court's decision in the National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, which allowed for rejection of bail on production of documents that indicated participation of the accused in terrorist activity by any means of whatever nature as mandated by Section 43(D)(5) of the Act. The phrase "any other means of whatever nature" allows the Government to label any physical activity as a terrorist act. Thus, the Government's use of an arbitrary method to suppress dissent establishes a very low bar for designating an act as a terrorist activity. Furthermore, the Act has reduced the burden of proof for establishing mens rea of the accused to conduct a terrorist activity. It only needs to show that the individual or organization is "likely" to terrorize the public. In the landmark judgment of Joginder Kumar v. State of Uttar Pradesh (1994) 4 SCC 260, the Indian Supreme Court held that: “No arrest can be made because it is lawful for the police officer or the Government to do so. The existence of the power of arrest is one thing and the justification for the exercise of such power is quite another.” Therefore by failing to give justifiable grounds for arresting an individual, the Government would be in violation of the mandate of the Indian Supreme Court. A designated authority might act "from personal knowledge", or “information furnished by another person”, or "from any document, article, or any other thing which may furnish evidence of the commission" of an offence under the Act, as indicated by section 43A of the Act. The arresting officer is required to inform the suspect regarding the charge "as soon as maybe". Because, the expression "as soon as maybe" has no legal time limit, the designated authority can manhandle their power and keep the captured individual for a long period. The 2008 Amendment to this Act expanded the pre-charge detainment period from 90 days to 180 days, adding to the self-assertive powers identified with arrests and detentions. Compared to the international standards, the 180-day period is extravagantly long. The United Kingdom Terrorism Act 2006 allows for a 28-day detention period; the United States of America's arrest law allows for a 7-day detention period; and in Australia, the maximum amount of time someone can be held before being charged is only 24 hours.

In Maneka Gandhi v. Union of India (1978) 1 SCC 248, it was set up that any procedural law should be "just, fair and reasonable”; this Act doesn't meet any of these rules. In DK Basu v. State of West Bengal (1997) 1 SCC 416, the Indian Supreme Court set up rules for detention laws, including requiring the police or the designated authority to intimate the relatives of the detained individual about his arrest and allowing for an advocate during a part of the accused’s interrogation. Under the Act, there is no requirement for the police to make any intimation of the accused’s arrest to his relatives or allow the accused to have an advocate present during a part of his interrogation. The reversal of the presumption of innocence is one of the most contentious aspects of this Act. The burden of proof is on the prosecution. According to the rule of law and natural justice principles, an accusation must be proven beyond a reasonable doubt in case a person is tried for a criminal act. However, according to section 43A of the Act, if "definitive evidence" is found against the arrested person, the "court shall presume, unless the contrary is shown, that the accused has committed such an offense." It's critical to understand that the "definitive evidence" referenced in the proviso is subject to scrutiny before the case can be referred to a judge. As a result, there is a good chance that evidence may be manipulated. Furthermore, Article 20 of the Indian Constitution establishes the presumption of innocence. The concept of innocence until proven guilty is widely accepted. It is even addressed in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) 1966, to which India is a signatory. The Indian Supreme Court has also upheld the presumption of innocence on several occasions, most notably in the landmark case of Babu v. State of Kerala (2010) 9 SCC 189.

One of the arguments in favour of enacting such a law is that it is in line with the Directive Principles of State Policies and is necessary for "national security". On the other hand, it is argued that all laws, legislation, and statute must adhere to the country's constitution. The Act not only criminalizes the fundamental right to form associations but also crosses the fine line drawn between the right to dissent and sedition. Right to dissent is a fundamental right that the state must protect, and this Act fails to do so. While, given the intricacies of terrorism, strict legislation may be essential there needs to be a fine balance where such legislation does not end up giving up too many arbitrary powers to the concerned authorities. The conviction rate under the Act is dismally low, at only 2.2 per cent, reflecting both state overreach and misuse of the draconian law. As a result, this law must be repealed not only to discourage its misuse but also to prevent the country's democratic nature from eroding.

The Author, Intisar Aslam, is a First Year Student at the National University of Study and Research in Law, Ranchi.