Introduction
When too much power is vested in the hands of the government, there is a possibility of misuse of such power. A democracy functions efficiently only when the people of the country keep the government in check. When laws are made which take away such power from the people, they also take away the very essence of democracy. A democracy only stands true to its meaning when the government is of the people, by the people and for the people.
When we think of the Emergency in India, one of the most prominent recollections we have is, of hundreds of people being jailed and being tagged as anti-national under the Maintenance of Internal Security Act (MISA). They were considered a threat to national security. However, these people were only criticizers of the government. It has been 43 years since the Emergency was lifted. Governments of different parties and different combinations have come to power. Unfortunately we have a very similar law which has been amended and passed in Parliament in 2019- The Unlawful Activities (Prevention) Act.
Tracing the Genesis of the Act
In the year 1967, the Congress led government enacted the UAPA which allowed the government to put so-called reasonable restrictions on the right to association and gave the government the right to deem any organisation unlawful on the basis of their activities. It was supposed to have been enacted in the interest of the sovereignty and integrity of India. The UAPA was always viewed as a draconian law as it allows arbitrary restrictions on Fundamental Rights of citizens, which according to the government are reasonable restrictions.
In 2019, the NDA led government amended the UAPA which allows the Central Government to declare any individual or person as “terrorists”.
Inherent Flaws in the Amended Act
The government said that this Act would help in reducing terrorist activities across the country. The Act also does not define the word “terrorist activities” which allows room for interpretation. This is where the problem actually lies.
The law gives unrestricted power in the hands of the government under the garb of national security which instead of protecting the citizens, targets them for even carrying out democratic activities. It is being used to criminalize any movement or protest which is against the narrative of the ruling party and can be used to target dissenting citizens. The centre has the power to interpret the words to its own convenience and punish citizens. Since it is an ill-defined law, loopholes can be found and can be used to the centre’s advantage. An individual can be called a “terrorist” by the Government of India without adequate evidence. This will harm the reputation of a person in society. A tag of “anti-national” and a “terrorist” will always linger on them.
The UAPA also violates the Fundamental Right to Fair Trialand the presumption of innocence which are the backbones of the legal system in India. Every individual is innocent until proven guilty. This makes it next to impossible for the accused to secure bail as he is required to prove his innocence even before the beginning of the trial. The burden of proof lies entirely on the person who has been arrested as the Act provides no provision for him to challenge the government’s claim before they publish it in the Gazette. Such sweeping powers in the hands of the centre can prove to be troublesome. The act weakens the federal structure of governance in India and gives too much power to the centre.
While it is essential to ensure stricter laws in order to combat terrorism, it is the duty of the Legislature to ensure that laws that are enacted are not in direct contravention with the Fundamental Rights of the citizens. The UAPA interferes with the right to life and personal liberty (Article 21) as guaranteed by the Constitution. It takes away the right to freedom of speech and expression (Article 19). At an international level, the amendment violates the Universal Declaration of Human Rights and The International Covenant on Civil Liberties and Political Rights.
A recent incident when the UAPA has been used rampantly was during the anti CAA-NRC protests. Student leader, Umar Khalid and Jamia Islamia students, Safoora Zargar and Meeran Haider were detained for allegedly being involved in the Delhi Riots. Prominent persons such as Anand Teltumbde and Gowhar Geelani have also been arrested under the UAPA. The act does not treat Indian citizens as citizens of a democracy. The question, therefore, is that, are these arrests even constitutional if they are in violation of the Fundamental rights of citizens. (Safoora Zargar has been given bail on Humanitarian Grounds as she is pregnant)
While national security and the protection of citizens are of great importance, the Legislature must ensure that the Civil Liberties of citizens are not being suppressed. Unfettered power in the hands of the Centre is worrying and can infringe upon the rights of citizens. While the government has time and again reaffirmed that the amendment will reduce terrorism and keep it in check, it gives the government absolute power to punish anyone without sufficient evidence. It is necessary that the government is answerable to its citizens and that transparency is maintained in the system in order to ensure that democracy is in check.
Image Credits: Jagran Josh