In the face of rising internal security challenges and transnational terrorism, India has taken significant legislative steps to strengthen its counterterrorism framework. Two of the most critical laws in this context are the Unlawful Activities (Prevention) Act (UAPA), 1967 and the National Investigation Agency (NIA) Act, 2008. While UAPA focuses on proscribing unlawful activities and organizations and empowering the government to take action against individuals involved in terrorism, the NIA Act institutionalized a central agency to investigate and prosecute such offences.
These laws, however, have been subject to intense debate for their effectiveness, constitutional validity, and implications on civil liberties. This article delves into their origin, key provisions, impact, and the controversies surrounding them.
The Unlawful Activities (Prevention) Act, 1967
Background and Purpose
The UAPA was originally enacted in 1967 with the primary objective of preventing unlawful activities that threaten the sovereignty and integrity of India. Over the years, especially post-2004, it has evolved into the cornerstone of India’s anti-terrorism legal framework, replacing earlier laws like TADA (Terrorist and Disruptive Activities (Prevention) Act) and POTA (Prevention of Terrorism Act), which were repealed due to widespread misuse.
Unlike ordinary criminal laws, UAPA empowers the state to act preemptively by banning organizations and prosecuting individuals suspected of being involved in terrorism-related activities, often without the same procedural safeguards as regular criminal trials.
Key Provisions of UAPA
1. Definition of Unlawful Activities and Terrorism
The Act defines “unlawful activity” as any action, spoken or written words, or activity that supports or incites secession, disaffection against India, or threatens its sovereignty. It was significantly amended in 2004, 2008, 2012, and 2019 to include terrorist activities and organizations.
2. Proscription of Organizations
The central government can ban organizations involved in terrorism or unlawful activity. The list includes groups like the Lashkar-e-Taiba, Jaish-e-Mohammed, and the CPI (Maoist).
3. Designation of Individuals as Terrorists (2019 Amendment)
A significant and controversial change came with the 2019 Amendment, which allowed the government to label individuals as terrorists without needing to prove their guilt in court beforehand. Previously, only organizations could be declared so.
4. Extended Detention and Bail Provisions
Under UAPA:
- Detention without charge is allowed for up to 180 days.
- Getting bail is extremely difficult, especially since the court must be satisfied that the accused is “not guilty” before granting it a reverse onus that challenges the presumption of innocence.
5. Special Courts
The law allows the establishment of special courts for speedy trials of UAPA offences, though trials can still take years.
Criticism and Controversies
1. Violation of Fundamental Rights
UAPA has faced criticism for violating the right to life and personal liberty (Article 21) and freedom of speech and expression (Article 19). Activists argue that it criminalizes dissent and has been misused against students, intellectuals, journalists, and minorities.
2. Low Conviction Rate
As per government data, the conviction rate under UAPA is very low (around 2-5%), raising concerns about mass arrests and prolonged detentions without sufficient evidence.
3. Misuse of Power
There are several high-profile cases where UAPA was allegedly used to suppress protest movements, such as the Bhima Koregaon case or anti-CAA protests, rather than genuine counterterrorism efforts.
4. Judicial Scrutiny
Although courts have occasionally intervened in egregious cases, they often defer to the government in matters of national security, making it difficult for accused individuals to secure relief.
The National Investigation Agency (NIA) Act, 2008
Genesis of the Act
The NIA Act was enacted in the aftermath of the 26/11 Mumbai terror attacks, which exposed the fragmented and inadequate state of India’s counterterrorism infrastructure. The attacks, orchestrated by foreign terrorists with local support, highlighted the need for a centralized agency with national jurisdiction to investigate and prosecute terrorist activities.
Objectives and Structure
The Act created the National Investigation Agency (NIA) as the primary central counter-terrorism law enforcement agency. The NIA was envisioned to operate across states, cutting through the red tape of jurisdictional boundaries that often hamper investigations.
Key Provisions of the NIA Act
1. Jurisdiction
The NIA can investigate offences listed in the Schedule of the Act, which includes:
- Terrorist acts under UAPA
- Explosive Substances Act
- Atomic Energy Act
- Unlawful possession of arms
- Offences affecting the sovereignty of India
Originally, NIA had jurisdiction only within India. However, the 2019 Amendment empowered it to investigate offences committed outside Indian territory (e.g., attacks on Indian nationals or assets abroad).
2. State Cooperation and Supremacy
Although law and order are state subjects under the Indian Constitution, the NIA Act allows the central government to direct the NIA to take over any case, irrespective of whether the state government agrees. This has led to tensions between the Centre and states, especially those ruled by opposition parties.
3. Special Courts
NIA cases are tried in special NIA courts, which are meant to handle cases more efficiently. However, delays persist due to the complexity of cases and judicial backlogs.
Achievements of the NIA
Since its inception, the NIA has investigated over 300 cases, many of which involve ISIS recruitment, Maoist insurgency, terror financing, and cross-border terror. It has been successful in cracking several terror modules and conducting pan-India investigations.
Criticisms and Concerns
1. Federalism Concerns
The central takeover of investigations without state consent is often viewed as an infringement on the autonomy of states, undermining the federal structure envisioned in the Constitution.
2. Politicization
There have been allegations that the NIA has sometimes acted under political pressure, especially in high-profile or politically sensitive cases, leading to concerns about impartiality.
3. Slow Trials and Low Conviction Rate
Like UAPA, many NIA cases result in long trials and low convictions, which casts doubt on the quality of investigations or the robustness of evidence.
The Interplay Between UAPA and NIA Act
Together, the UAPA and NIA Act form the legal and institutional backbone of India’s counterterrorism efforts. While UAPA defines terrorism-related offences and prescribes punitive measures, the NIA Act ensures a specialized agency is tasked with investigating such offenses.
Their combined application has led to several significant arrests and the unearthing of terror networks, but also sparked widespread legal and civil rights debates. The lack of oversight mechanisms, coupled with harsh detention norms, makes it easy for these laws to be weaponized against political or ideological opponents.
Steps to be Taken
Counterterrorism is undeniably crucial for national security. However, in a democracy governed by the rule of law, even national security laws must be held to constitutional standards. To ensure this:
- Judicial Oversight: Fast-track review mechanisms and independent judicial scrutiny can prevent misuse.
- Transparent Designation Process: Clearer standards for labelling individuals or groups as terrorists.
- Strengthening Evidence Gathering: Better training and resources for agencies like NIA to improve conviction rates.
- Balancing Federalism: Respecting state autonomy and involving them in major investigations to ensure cooperative federalism.
- Periodic Review of Laws: Parliamentary oversight committees should periodically review the implementation of these laws.
Conclusion
The UAPA and NIA Act remain essential instruments in India’s legal arsenal against terrorism. However, their implementation must be tempered with care, transparency, and accountability. A truly secure nation is one where the rule of law thrives alongside national security, and citizens’ rights are not sacrificed at the altar of security. Strengthening institutions, building trust, and ensuring justice will be key to the success of these laws in the long run.
CONTRIBUTED BY KAJAL RAWAT (INTERN)