The ‘Crime in India’ report of the National Crime Records Bureau (NCRB) for 2022 shows an alarming surge in the number of Unlawful Activities (Prevention) Act (UAPA) cases in the country, a much-debated anti-terrorism law.?

The pendency in the investigation, the delay in filing charge sheets, and stringent bail conditions have resulted in numerous individuals being unjustly held in prisons. Those arrested under UAPA often endure prolonged imprisonment due to the delay in the submission of charge sheets as well as the reluctance often expressed by trial courts in granting bail.?

The year 2022 marked 24 per cent increase in UAPA cases compared to the previous year, primarily driven by political tensions in Manipur, Assam, and Jammu and Kashmir. Astonishingly, out of the 1,005 cases in 2022, a significant 76 per cent were concentrated in Assam, Manipur, Uttar Pradesh, and J&K.?

J&K accounted for 371 cases, while Manipur and Assam had 167 and 133 cases, respectively, in the preceding year. Uttar Pradesh recorded 101 cases, and even Left-governed Kerala had a surprising share of 23 cases, all involving Left-Wing Extremists, according to NCRB data.

Additionally, the data underscores the backlog of UAPA cases, contributing to judicial gridlock due to delays in filing charge sheets, resulting in a staggering 3,999 pending cases from previous years, with a total of 5,016 cases awaiting investigation, including 12 cases reopened for further scrutiny. The number of cases that have been chargesheeted is only 765 out of the pending cases in 2022, pointing to systemic inertia within the legal framework.?

The Process Is The Punishment?

The pendency rate of the investigation of UAPA cases stands at 81 per cent, and only 78 per cent of the cases were charge-sheeted in 2022.?

The process under UAPA typically entails arrest with stringent bail conditions, and delays in investigation and filing charges often lead to prolonged incarceration, extending for months or even years for individuals awaiting trial.?

According to the NCRB data, a total number of 3,558 UAPA cases have been under trial in various courts across the country. The data of conviction, acquittal, and disposal (without trial) of the UAPA cases gives sufficient validation to the criticism that UAPA has often been misused for political reasons. Out of the UAPA cases pending trial, defendants have been acquitted in 153 cases, while only 36 cases have resulted in convictions.?

In 52 cases filed under UAPA, the final report submitted by the police is found to be false, according to the NCRB data. Additionally, 183 UAPA cases have been disposed of without trial. ?Only 18 per cent of the UAPA cases end up in conviction and the pendency of UAPA cases in courts is 89 per cent. ?

The data on the duration of the pendency of the investigation also strongly validates the argument that UAPA has been used as a mere weapon to keep people behind bars, considering the difficulty in achieving bail. Out of the pending 4,000 UAPA cases, the investigation has been pending for more than three years in 2,020 cases. The investigation has been crawling for a period of one to three years in another 1,294 cases and 436 cases have been under investigation over a period of six months to one year.?

The report of the NCRB reveals the distressing situation concerning the backlog of UAPA cases awaiting trial. Among the 3,177 UAPA cases pending trial across different courts, 100 have languished for over 10 years without any resolution in sight, 315 have been under trial process for 5-10 years, 783 have been under trial for three to five years, 1,292 cases have been in trial for a period between one to three years. In 2022 alone, 2,636 persons were arrested under UAPA across the country, out of whom 23 are juveniles. ?

How Colonial Roots Of UAPA Spread In Independent India?

The inception of the Unlawful Activities (Prevention) Act (UAPA) finds its roots in the colonial era. Paradoxically, the term “unlawful association” was initially employed not to denote any terrorist organisation, but rather to characterise the Indian national movement by the British in 1908 under the Criminal Law Amendment Act.?

Rather than disassociating from the British precedent of criminalising dissent, post-Independence, lawmakers in India introduced a series of statutes that echoed the substance and essence of this legacy. Some of these laws are: The Maintenance of Internal Security Act (MISA) was enacted in 1971, followed by the National Security Act (NSA) of 1980, the Terrorist and Disruptive Activities (Prevention) Act (TADA) introduced in 1985, and the Prevention of Terrorism Act (POTA) in 2002.?

The UAPA of 1967 has undergone significant amendments since 2004, intensifying its provisions and strengthening its enforcement measures which effectively have been used to curtail dissent in disguise of countering terrorism according to critics.?

Anushka Singh, the author of the book ‘Sedition in Liberal Democracies’ observes that UAPA enables the central government to impose “reasonable restrictions” on the right to association and it does that by banning any association based on a simple announcement made by the government about it being “unlawful”. In 2004 and 2008, UAPA underwent significant modifications, assimilating elements from the previously annulled TADA and POTA. Both these Acts, renowned for their contentious nature, had been nullified due to widespread opposition. The 2004 amendment notably redefined “unlawful activity” by incorporating the definition of a “terrorist act” sourced from POTA. Additionally, it introduced the concept of a ‘terrorist gang’ within the framework of the Act.?

As a response to the 2008 Mumbai terror attacks, the Union government implemented the UAPA Amendment Act of 2008. This amendment notably introduced Section 43D (5), which mandated courts to refuse bail if there is reasonable ground to believe that the accusation against the person is prima facie true. This provision significantly elevated the hurdles for obtaining bail, as it necessitated the court to determine guilt solely based on the report prepared by the National Investigation Agency (NIA).

Consequently, individuals accused under this provision are restricted from presenting any evidence beyond what is included in the police report for their defence. The 2008 amendment also extended the period of pre-charge detention to 180 days if the investigating officer could convince the court of the reasons for requiring more time. UAPA was further amended in 2012 and 2019 to add more stringent provisions making the Act more draconian in essence. The 2019 amendment allows the Union Government to designate any individual as a terrorist without a judicial process.

Gautam Bhatia in his book ‘Unsealed Covers’ observes that “over the past few years UAPA has become a bitterly contested terrain upon which questions of State powers, State impunity and human freedom have been debated at all levels of judiciary-from the trial courts to the Supreme Court”. According to Bhatia, UAPA emerges as a powerful tool of state repression.?

“In recent years UAPA has been deployed in two politically controversial cases- the Bhīma Koregaon case of 2018 and the Delhi riots of 2020- in both these cases, majority of the accused remain in jail without the trials having commenced,” wrote Bhatia.