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What makes the UAPA unusual? Difficulty of bail, guilt by association, and other things

Even though it is the older legislation, the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) really came into the limelight in 2004 as the successor to the old TADA (Terrorism and Disruptive Activities Act, 1987) and POTA (Prevention of Terrorism Act, 2002), both of which dealt with terrorism and allied crimes. The UAPA had originally sought only to regulate the activity of unlawful organisations and over the years, the government had banned many extremist organisations under it.

POTA’s return in UAPA guise

In 2004 however, after the POTA was repealed, the provisions of the POTA regarding terrorist activities were incorporated into the UAPA with three major changes. Firstly, the harsh provisions regarding bail, which had made obtaining bail extremely difficult, were done away with. Secondly, the provisions regarding the extension of police custody beyond the usual fifteen days were omitted. Thirdly, the provisions that made confessions recorded before a police officer admissible, were also omitted.

The first two have since been re-included in the UAPA, after amendments made to it in 2008. As a result, the only major difference between the UAPA and the POTA now is the inadmissibility of police confessions.

Intercepted communications

Even though confessions are not admissible in evidence, Section 46 makes admissible, communications intercepted by the police under any applicable law. A wide definition empowers the police to collect this evidence, especially in relation to conspiracy. There is, however, a safeguard. No such evidence can be relied on unless the order of the competent authority authorising such an intercept is provided to the accused.

Investigation

Investigations under the UAPA can be conducted by the state police or by the National Investigation Agency. Under the National Investigation Agency Act, 2008, any investigation under the UAPA can be taken over by the National Investigation Agency.

An investigation and trial under the UAPA proceeds in much the same manner as one under the regular Code of Criminal Procedure, 1973 (“CrPC”), with just a couple of exceptions. Firstly, the maximum period of police custody under the UAPA is thirty days, not fifteen. Secondly, with the reintroduction of harsher bail provisions, it is next to impossible to get bail.

The bleak prospect of bail

The standard for bail under the UAPA is that it cannot be granted unless the court is of the view that the accused is innocent of the alleged offence. This is a prima facie standard, which means that the onus of proof of innocence, even for the purpose of obtaining bail, is effectively reversed. It is for the accused to show, for the purposes of bail, that he is innocent.

Bail applications are routinely denied on the ground that a decision needs to first be taken on whether to frame charges. And once charges are framed, bail applications are denied on the application of the prima facie standard. It usually takes years after arrest and commencement of prosecution for bail to even be considered. Since the prosecution has such an incentive to delay matters, they often remain in limbo for years. Few, if any precedents exist for the grant of bail under the UAPA.

Crimes under the UAPA

The Act grades the offences covered under it. The offences of committing a “terrorist act” (Section 15), of “conspiracy to commit a terrorist act” (Section 18) and of “membership of a terrorist group” (Section 20) all carry a maximum sentence of life imprisonment. On the other hand, acts in aid of such groups are made punishable by Sections 35 to 39 up to a maximum of ten years. In Arup Bhuyan’s Case, Justice Markandey Katju had declared that mere association or membership with a proscribed group could not be considered criminal and that something more would be required. The government has sought a review of that decision and it is pending before the Supreme Court.

Perhaps the largest category of accused under this Act would be the Naxalites. Some members of an organisation like the CPI (Maoist) may have participated in an act that falls under the definition of a terrorist attack. There may be others who have only supported that organisation by giving them food or shelter. This Act tries to differentiate between these two categories.

The UAPA criminalises association with organisations having a wide reach and presence like the CPI (Maoist). There is always the danger that persons who have nothing to do with the activities of the organisation can be roped in as co-conspirators or abettors. For instance, somebody who has provided food to the militants cannot be put on the same footing as the militant. As such, the statute provides for a separate offence with a much lower minimum and maximum sentence. Sections 38 and 39 of the Act, which criminalise support to such an organisation, are punishable with a maximum punishment of 10 years but no minimum has been specified. However, the prosecution rarely uses these provisions as they focus on the offences punishable with life imprisonment. These ‘lighter’ offences however, have been used by judges to release people who have been found to only be guilty by association, and not for any specific act of commission.

Protection of witnesses

The protection of witnesses is an area in which Indian law has been sorely lacking. The UAPA (in Section 44) and the National Investigation Agency Act, both incorporate provisions that empower a court to take steps to protect the identity of witness. A court can decide to redact parts of the statements given to the defence to obscure the witness’ identity and can change its venue of sitting and may even give directions to obscure the face and voice of the witness. These steps are not usually taken even though threats to witnesses are not unheard of. The act of threatening a witness is made separately punishable.

Prior government sanction

The UAPA is a fairly harsh law drafted to deal with some harsh circumstances and with people spending more than a decade in jail before being acquitted, its potential for misuse has been realised. The law had tried to rein in this potential by requiring prior government sanction before a prosecution could be initiated. Practically though, it is never denied and a trial often reveals the inadequate thinking that went into the grant of sanction. It has in fact become a mere administrative step preceding prosecution and not the well thought out administrative order that the law anticipated would serve as a check on ill thought out prosecutions.

The UAPA covers a particularly niche and interesting area of the law. Many of the landmark judgments in criminal law regarding the rules of evidence have emerged from this law and its predecessors. After all, it is the fate of those accused of the most serious crimes that inform us about the state of our legal system and how it is working.

Sarim Naved is a Delhi-based advocate.

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