SC ORDERS RELEASE OF NEWSCLICK FOUNDER
Invalidating his arrest in a terror case, the Supreme Court on May 15 ordered the release of Newsclick founder-editor Prabir Purkayastha.
THE REASON:
The reason the court gave: the Delhi Police failed to inform Purkayastha the grounds of his arrest before taking him into custody.
The ruling by a Bench led by Justice B R Gavai is significant because it emphasises that proper procedure and due process are the guardrails against arbitrary action, even in stringent terror cases.
THE ARREST
Delhi Police has arrested NewsClick founder and its editor-in-chief Prabir Purkayastha and Amit Chakravarty, firm’s human resources head, under the Unlawful Activities (Prevention) Act.
This was done after the allegations that the portal received funds for pro-China propaganda.
UNLAWFUL ACTIVITIES PREVENTION ACT, 1967
Origin:
- It was first promulgated in 1967 to target secessionist organisations and considered to be a predecessor of laws such as the Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA) (now repealed)
Aims:
- It aims at effective prevention of unlawful activities in India.
- Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
- The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
KEY PROVISIONS
- Punishment: It has the death penalty and life imprisonment as the highest punishments. Both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner even if the crime is committed on foreign land, outside India.
- Chargesheet: The investigating agency can file a charge sheet in a maximum of 180 days after the arrests and the duration can be extended further after intimating the court.
AMENDMENTS
Amendment of 2004:
- The 2004 amendment added the “terrorist act” to the list of offences to ban organisations for terrorist activities, under which 34 outfits were banned. Till 2004, “unlawful” activities referred to actions related to secession and cession of territory.
2019 Amendment:
- It empowers to designate individuals as terrorists on certain grounds provided in the Act, only organisations could be designated earlier.
- The Act empowers the Director-General of the National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is investigated by the said agency.
- The Act empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.
- Personal/financial information of an individual designated as a terrorist can be shared with various Western agencies.
ISSUES RELATED
- Misuse of the law by the state: According to NCRB data, from 2016-2019, 4231 FIRs were filed under UAPA, out of which 112 cases have resulted in convictions.
- Vague Definition of Terrorist Act: The definition of a “terrorist act” under the UAPA offers an overbroad and ambiguous definition of a “terrorist act” which includes the death of, or injuries to, any person, damage to any property,
- Denial of Bail: The major problem with the UAPA lies in its Section 43(D)(5), which prevents the release of any accused person on bail if, police have filed the chargesheet that there are reasonable grounds for believing that the accusation against such person is prima facie true.
- Pendency of Trails: Given the state of justice delivery system in India, the rate of pendency at the level of trial is at an average of 95.5 per cent.
- Anarchy by the state:
- It gives the state authority vague powers to detain and arrest individuals who it believes to be indulged in terrorist activities.
- Thus, the state gives itself more powers vis-a-vis individual liberty guaranteed under Article 21 of the constitution.
- Undermining Federalism: Some experts feel that it is against the federal structure since it neglects the authority of state police in terrorism cases, given that ‘Police’ is a state subject under 7th schedule of Indian Constitution.
THE COURTS ON UAPA
- The Supreme Court in Union of India Vs K A Najeeb, 2021, held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated. The Court held that the rigours of UAPA bail restrictions “will melt down where there is no likelihood of trial being completed within a reasonable time.
- The Delhi HC in June 2021 granted bail to three persons (Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha) arrested during the Delhi riots under UAPA. The Delhi High Court took the reasoning of SC in Union of India vs K A Najeeb, 2021 a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty.
WAY FORWARD
- Prevent Misuse: The government needs to ensure that the law is not misused to harass genuine social activists.
- Effective Law enforcement: It needs to ensure that there are effective law enforcement mechanisms with checks and balances to prevent and punish terrorist attacks and it is put only to this use.
- Higher standards of proof must be applied for conviction and there must be provisions like compensation to victims or punishment/enquiry against those who bring malicious complaints.
- Role of Judiciary: Judiciary needs to play an active role and provide early bail to the falsely accused and quash the baseless allegations at the early stage.
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