SHAMBHUNATH INSTITUTE OF LAW

B.A.LL.B. (HONS.)

PROJECT REPORT

FOR

SEMESTER VIII

SESSION: 2023-2024

SUBMITTED
UNDER THE SUPERVISON OF:

DR.RAJNI TRIPATHI SANSKRITI PATHAK

(SUPERVISOR) (CO-SUPERVISOR)

SUBMITTED BY:
NAME: MR. VIKAS SINGH
ENROLLMENT NO. :PRSU20017729
SEMESTER: VIII
SESSION: 2023-2024

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 PROJECT REPORT
ON
Remnants Of POTA And TADA In Unlawful Activities (Prevention) Act 1967

PROJECT SUBMITTED
UNDER SUPERVISION
OF

DR.RAJNI TRIPATHI SANSKRITI PATHAK

(SUPERVISOR) (CO-SUPERVISOR)

SUBMITTED BY:
NAME: MR. VIKAS SINGH
SECTION:B
ENROLLMENT NO: PRSU20017729
SEMESTER: VIII
SESSION: 2023-2024
DATE OF SUBMISSION: 21-03-2024

SHAMBHUNATH INSTITUE OF LAW

JHALWA PRAYAGRAJ – 211015, UTTAR PRADESH

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 DECLARATION

I, solemnly affirm that the project report on Remnants of POTA and TADA in Unlawful Activities
(Prevention) Act 1967 is an outcome of my own efforts carried out during the course of our study under the
supervision of DR.RAJNI TRIPATHI AND SANSKRITI PATHAK. I assert the statement made and the
conclusion drawn are an outcome of my own research work. I further assert that; this project has not been
submitted to any other institution for the award of any publication or research work.

Date: 21 MARCH, 2024 VIKAS SINGH

Place: Prayagraj (PRSU20017729)

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 ACKNOWLEDGEMENT

I would like to express my sincere gratitude to Sanskriti Pathak, Assistant Professor Shambhunath Institute
of Law, for his valuable guidance, support, and suggestion in completing this project report titled
“Remnants of POTA and TADA in Unlawful Activities (Prevention) Act 1967”.

I also extend my gratitude towards our Principal, Dr. Rajni Tripathi for giving me this great opportunity to
do this project without their valuable guidance and constant support, this project could not have been
completed.
I also thank my parents and friends for their immense support and help during this project, without their
help completing this project would have been very difficult.

VIKAS SINGH

(PRSU20017729)

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 TABLE OF CONTENT

Sr.No. Title Page No.

1. Declaration I
2. Acknowledgement II
3. List Of Abbreviations IV
4. Table Of Cases V
Chapters:
5.
1. Chapter I: Introduction
01-02
2. Chapter II: Description

3. Chapter III: Discussion 03-05

 TADA (Terrorist and Disruptive Activities)

prevention act 1987. 06-07

 POTA (Prevention of Terrorist Act) 2002

07-08
 Why was the act repealed?
09-10
 UAPA (Unlawful Activities Prevention Act) 1967.
10-16

4. Chapter IV: Research paper

 UAPA (Unlawful Activities and Prevention Act)

1967 “case study”
17-18

 Challenges to UAPA 1967.

19-21

5. Chapter V: Conclusion 22

6. Chapter VI: Recommendation 23

6. List Of References 24

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 LIST OF ABBREVIATIONS

Sr. No. Abbreviations Full Form

1. SCC. Supreme Court Cases.

2. AIR. All India Reporter.

3. M.P. Madhya Pradesh.

4. SEC. Section.

5. GOVT.
Government.

6. Art. Article.

7. Para. Paragraph.

8. IPC. Indian Penal Code

9. FRs. Fundamental Rights.

10. UN. United Nations.

11. V. Versus.

12. &. And.

13. UOI. Union Of India.

14. SC. Supreme Court.

15. HC. High Court.

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 TABLE OF CASES

Sr.No. Case laws Page.No.

1. Kathula Somulu v. State of Andhra Pradesh 8 January,
199.AIR 1991 SC, 1556, 1991 SCALE, 838, 1991, Supp
(1) SCC 295 7

2. Ram Kumar vs. State of Haryana on 13 January, 1987 8

1987, AIR 735, 1987 SCR (1) 991

3. Union of India v. K.A. Najeeb FEB 1, 2021 (2021) 3 SCC 11-12

713

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 CHAPTER I

INTRODUCTION

TERRORISM: The calculated use of violence to create a general climate of fear in a population and
thereby to bring about particular political objectives. Terrorism has been practiced by political organizations
with both rightist and leftist objectives, by nationalist and religious groups, by revolutionaries, and even by
state institutions such as armies, intelligence services, and polices.

Definitions of terrorism are usually complex and controversial, and because of the inherent ferocity and
violence of terrorism, the term in its popular usage has developed an intense stigma. It was first coined in
the 1790s to refer to the terror used during the French Revolution by the revolutionaries against their
opponents.

Although terrorism in this usage implies an act of violence by a state against its domestic enemies, since
the 20th century the term has been applied, most frequently to violence aimed, either directly or indirectly,
at government to influence policy or topple an existing regime. Terrorism is not legally defined in all
jurisdictions; generally, share some common elements. Terrorism involves the use or threat of violence and
seeks to create fear, not just within the direct victims but among a wide audience. The degree to which it
relies on fear distinguishes terrorism from both conventional and guerrilla warfare. Although conventional
military forces invariable engage in psychological warfare against the enemy their principle means of
victory is strength of arms. Similarly, guerrilla forces, which often rely on acts of terror and other forms of
propaganda, aim at military victory, and occasionally succeed, (e.g.., the Viet Cong in Vietnam and the
Khmer Rouge in Cambodia). Terrorism proper is thus the calculated use of violence to generate fear, and
thereby to achieve political goals when direct military victory is not possible. This has led some social
scientist to refer to guerrilla warfare as the “weapon of the weak” and terrorism as the “weapon of the
weakest.”

The key problem is that terrorism is difficult to distinguish form other forms of political violence and violent
crime, such as state-based armed conflict. Non states conflict one side violence, hate crime and homicide.
The lines between these different forms of violence are often blurry. Here, we look blurry. Here, we look
at standard criteria of what constitute terrorism as well as how it might be distinguished from other forms
of violence.

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Violent actions are usually categorized according to the perpetrator the victim the method and the purpose.
Different definitions emphasis different characteristics, depending on the priorities of the agency involved.

In our coverage of terrorism, we rely strongly on data from the Global Terrorism Database (GTD). Which
defines terrorism as acts of violence by non-state actors perpetrated against civilians’ population intended
to cause fear, in order to achieve political objectives? Its definitions exclude violence initiated by
government (state terrorism) and open combat between opposing armed forces if they non-state actors. In
our definition sections we provided the GTDs more detailed definitions in additional to other such as that
if the United Nations. To be considered an act of terrorism an action must be violent, or threaten violence.
As such political dissent activism and nonviolent resistance do not constitute terrorism. There are, however
many instances around the world of authorities restricting individuals’ freedom of expression under the
pretext of coiner-terrorism measure. Human rights groups such as Amnesty International and Human Rights
Watch, publish reports on such cases of censorship. The inclusion of damages to private and public property
in the definition of terrorism is point of contention but it is generally accepted on legal and statically context.
Terrorist actions must be also conducted either by an organization with an identifiable chain of command
or conspiratorial cell structure (whose member wear no uniforms or identifying insignia) or by individuals
or a small collection of individuals directly influenced by the logical aims or examples do some existent
terrorist movement and its leaders (typically referred to as a lone wolf attack).

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 CHAPTER II

DISCRIPTION

ABSTRACT:

During the second half of the twentieth century the international community, facing the terrorist
phenomenon, reacted with the adoption of a series of treaties concerning specific types of terrorist acts, and
the obligations of states with regard to them. Alternatively, terrorism-oriented legislation, which initially
covered only acts affecting civilians, has gradually expanded to cover some acts of terrorism against
military personnel and installations. This contribution attempts to assess the repercussions of this evolution
on the status and the protection of armed forces engaged in the so-called ‘‘war on terrorism’’ by examining
the existing dynamic between these regulations and international humanitarian law.

Terrorism is not a new phenomenon. During the second half of the twentieth century many countries in
Europe, Latin America, Africa, and Asia confronted movements of the most diverse kinds that had in
common the willingness to resort to the use of violence against innocent civilians to obtain their goals. In
some, the victims were numbered in the tens of thousands. In response, the international community began
to adopt a series of treaties concerning specific types of terrorist act and the obligations of states with regard
to them. There are now thirteen international treaties against terrorism, as well as numerous regional
treaties, and the process of drafting a general treaty against international terrorism is nearly complete.
Various conflicts around the world have been described as part of a ‘‘war on terrorism’’. If regular armies
are indeed engaged in armed conflict with terrorists, what protection do they derive from the international
treaties against terrorism? To what extent are international treaties against terrorism applicable to acts
committed by armed forces during an armed conflict or occupation? To what extent do these treaties protect
armed forces from terrorist attacks in times of peace, and to what extent to they apply to abuses committed
in peacetime by military forces? What is the relationship between these branches of international law and
international humanitarian law?

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THE INTERNATIONAL TREATIES CONCERNING TERRORISM, THEIR CONTENT AND
SCOPE OF APPLICATION:

International treaties against terrorism The Convention on Offences and Certain Other Acts Committed on
Board Aircraft, adopted in Tokyo in 1963, is the first international treaty against terrorism. Five more were
adopted during the 1970s: the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft,2 the
1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,3 the 1973
Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents,4 the 1979 International Convention against the Taking of Hostages5 and the
1979 Convention on the Physical Protection of Nuclear Material.6 Three treaties were adopted in 1988: the
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, a Protocol to
that Convention for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the
Continental Shelf,8 and a Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to the 1971 Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation. The 1990s saw the adoption of the 1991 Convention on the Marking
of Plastic Explosives for the Purpose of Detection, 10 the 1997 International Convention for the
Suppression of Terrorist Bombings11 and the 1999 International Convention for the Suppression of
Financing of Terrorism. The most recent addition is the International Convention for the Suppression of
Acts of Nuclear Terrorism, adopted by the UN General Assembly on 13 April 2005. These treaties define
nearly fifty offences, including some ten crimes against civil aviation, some sixteen crimes against shipping
or continental platforms, a dozen crimes against the person, seven crimes involving the use, possession or
threatened use of ‘‘bombs’’ or nuclear materials, and two crimes concerning the financing of terrorism.
There is a tendency to consider these treaties as establishing a sort of evolving code of terrorist offences.
The most significant evidence of this trend is the 1999 Convention against the financing of terrorism, which
establishes the crime of donating or collecting funds ‘‘with the intention that they should be used or in the
knowledge that they are to be used, in full or in part, in order to carry out (a) An act which constitutes an
offence within the scope of and as defined in one of the treaties listed in the annex’’. The duties of states
parties to this Convention with respect to the crime of financing the activities defined in the treaties listed
in the annex is independent of their ratification of them, although it does allow states that are not party to
one or more of the listed treaties to make reservations limiting the scope of their obligations under the 1999
Convention with respect to the financing of the activities prohibited by any unratified treaty or treaties. In
2002 the Organization of American States adopted a second treaty against terrorism, which uses the same
approach. The InterAmerican Convention against Terrorism establishes a series of obligations for states
parties with respect to the crimes defined in ten treaties: the 1999 Convention against the financing of

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terrorism and the nine international treaties listed in the annex thereto. The 1977 European Convention for
the Suppression of Terrorism as amended by the Protocol of 2003 adopts a similar approach, establishing
a series of obligations concerning acts of terrorism as defined in ten international treaties. UN Security
Council Resolution 1566 also supports that idea that the crimes recognized by existing international treaties
form part of a code of terrorist offences.

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 CHAPTER III

DISCUSSION

Terrorism has no definition particularly because it is a way of expression by a group of people towards the
society when their demands are not fulfilled/when they want to showcase their dominance. So technically
terrorism can be understood as a method of coercion in which violence is used as the key weapon in order
to spread fear or to achieve any particular goal. International terrorism, as a matter of fact, can be defined
as the terrorism which crosses the national boundary; this means that when in terms of place of operation
or methodology used the perpetrator goes beyond his national boundary, it can be considered as
International Terrorism. Now, most of the people will agree on the point that the act of terrorism is a very
recent affair but terrorism was also very much prevalent in ancient times as well. The term terrorism
originated from the period of the French Revolution describing the ‘Reign of Terror.’ During this period the
Revolutionary government used violent and harsh measures against its citizens who were suspected of being
enemies of the revolution.

TADA (Terrorist and Disruptive Activities Prevention Act) 1987.

Terrorist and Disruptive Activities (Prevention) Act, commonly known as TADA, was an Indian
antiterrorism law which was in force between 1985 and 1995 (modified in 1987) under the background of
the Punjab insurgency and was applied to whole of India. It was originally assented to by the President on
23 May 1985 and came into effect on 24 May 1985. This act was intended to halt the Khalistan Movement,
an armed Sikh separatist movement present in Punjab. It later expanded to encompass other states as well.
The Act had a sunset provision for lapsing after two years post-commencement, which it did on 24 May
1987. The Parliament not being in session, the life of the Act could not be extended. But the provisions were
kept alive by an ordinance effective from the expiry date of the Act. This ordinance was later replaced with
the Terrorist and Disruptive Activities (Prevention) Act, 1987. It was assented to on 3 September 1987, and
made effective in two parts from 24 May 1987 and 3 September 1987. This also had a sunset provision of
two years from 24 May 1987. It was renewed in 1989, 1991 and 1993 before being allowed to lapse in 1995
due to increasing unpopularity after widespread allegations of abuse. It was the first anti-terrorism law
legislated by the government to define and counter terrorist activities.

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CASE LAW: Kathula Somulu V. State Of Andhra Pradesh 8 January, 19911

• The appellants were convicted under Section 3(3) of the TADA Act and were punished with
imprisonment for three years and a fine of Rs. 100 each in default to undergo simple
imprisonment for one month.
• Appellant 1 was also charged under Section 25 (1) (a) of the Indian Arms Act and was awarded
imprisonment of one year.
• Appellant 2 was charged under Section 5 of the Explosive Substance Act.
• Section 3(3) of the TADA Act states that if anyone conspires or attempts to commit, or advocates,
abets, or incites or knowingly facilitates the commission of a terrorist act or any act preparatory
to a terrorist act shall be punishable with imprisonment for a term up to three years which may
extend to life imprisonment and also be liable to fine.
• The appellants were found in the group of other persons in the forest and were running away
from the police and were carrying explosive substances including country-made firearms, which
leads to their engagement in conspiracy or in attempt or to commit or abet the ‘terrorist act.’
Hence, the learned counsel for the appellant could not show any infirmity in the evidence.
• The Supreme Court awarded the appellants a minimum sentence and no interference is called
for2. So, the appeal is dismissed.

POTA (Prevention of terrorist Act) 2002

The Prevention of Terrorism Act, 2002 (POTA) was an Act passed by the Parliament of India in 2002, with
the objective of strengthening anti-terrorism operations. The Act was enacted due to several terrorist attacks
that were being carried out in India and especially in response to the attack on the Parliament. The Act
replaced the Prevention of Terrorism Ordinance (POTO) of 2001 and the Terrorist and Disruptive
Activities (Prevention) Act (TADA) (1985–1995), and was supported by the governing National Democratic
Alliance. The Act was repealed in 2004 by the United Progressive Alliance coalition.

1
AIR 1991 SC,1556,1991
2
SCALE,838,1991,SUPP(1)SCC 295

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CASE LAW: Ram Kumar Vs. State Of Haryana On 13 January, 19873

• Two safeguards are provided in regard to prosecution of members of the Armed Forces or of the
forces charged with the maintenance of public order sought to be prosecuted for use of excessive
force in the discharge of purported discharge of their duty.
• The two sanctions are addressed to altogether different persons. While sanction under Sec. 132
is addressed to the intending complainant, sanction "197.
• No Court shall take cognizance of any offence alleged to have been committed by any member
of the Armed Forces of the Union while acting or purporting to act in the discharge of his official
duty, except with the previous sanction of the Central Government.
• The State Government may, by notification, direct that the provisions of subsection (2) shall
apply to such class or category of the members of the Forces charged with the maintenance of
public order as may be specified therein. Wherever they may be serving, and thereupon the
provisions of that sub-section will apply as if for the expression "Central Government. Occurring
therein, the expression "State Government" were substituted.
• The Central Government or the State Government. as the case may be, may determine the person
by whom, the manner in which, and the offence or offences for which the prosecution of such a
Judge, Magistrate or public servant is to be conducted, and may specify the Court before which
the trial is to be held."
• One is an authority to an individual to 'prosecute' the alleged offender; the other is an authority
to 'try' the alleged offender.
• Therefore, a sanction under Section 132 is no substitute for a sanction under Section 197. Under
the circumstances, the court could not have taken cognizance of the offence in so far as the
appellant was concerned for there was no jurisdiction to do so in the absence of the requisite
sanction. The appeal must, therefore, be allowed, the order passed by the High Court must be
set aside, and the proceedings against the appellant must be quashed as lacking in jurisdiction.
No doubt, this order will not operate as an acquittal on merits and the appellant can be proceeded
against afresh. Whether or not to do so is for the competent authority to decide. So far as the
proceedings giving rise to the present appeal are concerned, the same will stand quashed.
• The appeal is disposed of accordingly.

3
1987,AIR 735,1987 SRC(1)991

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WHY WAS THE ACT REPLEAD?

After two years of the enforcement of POTA, multiple cases of its abuse were reported across the country,
which majorly included targeting the minorities and the abuse of it against political opponents. The misuse
of the act was claimed to be inseparable from its normal use because of the very nature of the provisions of
the act. The safeguards mentioned above were not effective enough to shield the violating nature of the act.
Therefore, in 2004 the act was repealed.

1. The definition: The definition of “terrorism” which was claimed to be a bit less precise when
compared with the definitions from other countries like the USA in the USA Patriot Act, 2001.
Moreover, the law imposed a minimum five-year sentence on, “whoever conspires or attempts to
commit, or advocates, abets, advises, or incites or knowingly facilitates the commission of, a
terrorist act or any act preparatory to a terrorist act. “The use of words “advocates” and “incites” in
this definition, is problematic as they implicate of free speech and political opinion. Such loose use
of words throughout the act has caused misinterpretation and misappropriation of POTA.
2. Powers of Arrest and Detention: Section 49(2) of POTA allowed police to restrain a suspect for
up to 180 days, which is far more than the general law of CrPC. Also, the CrPC provides the convict
with basic rights and safeguards like prompting the convict about the grounds he/she has been
arrested and representation in front of the magistrate within the earliest opportunity, POTA even
failed to give basic rights essential to the fundamental rights of life and liberty, to “suspects” (not
even “convicts”). Further, the bail procedures under POTA were very stringent postponing the bail
for years together was becoming a common phenomenon. The denial of bail under POTA interprets
as if there was a presumption of guilt for the suspect, and such presumption caused biased trials.
3. Appeals and Reviews: When in 2002 they said act was legislated it asked for setting up of
reviewing committees at the state and central level, but these committees had mere suggestive or
advisory capacity. Even after the 2003 ordinance which brought in improvements in the authority
of these committees, where it gave authority to review the case of an “aggrieved person” at the
instance with superficial facts, their resources remained limited in terms of autonomy to start an
investigation and for other procedures. Also, the committees had very limited time-frames in which
they had to give their reports.

4. Mass Arrests: Only four months after the effect of the act, various states started capitalizing the
broad definition of terrorist and proceeded to arrest a huge number of people, within very short and
without substantial evidence and only as “suspect”. 250 people nationwide were arrested in the very

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 first quarter of the enforcement, and the numbers kept on increasing. At the end of the second
quarter, there were almost 940 people arrested, and out of which 560 faced imprisonments.
The law’s application was also unpredictable, varying from state to state in multiple ways. States
like Gujarat, Jharkhand, Uttar Pradesh, and Jammu Kashmir, used this act as a tool against minorities
as in Gujrat alone, 123 Muslims were arrested under POTA.
5. Political Abuse: The act, by different politicians in different states, were used for political rivalries,
where the people from the rival party were getting arrested in states like Tamil Nadu, by the then
Chief Minister J. Jayalalitha. Jammu and Kashmir also faced such kinds of political abuse of the
act, when politicians were blamed and charged for importing large sums of money from different
countries.
6. Lack of adequate surveillance: of the police and due to insufficient prosecutorial decision making,
arbitrariness, discrimination, and disuniform application create broad immunities from prosecution
against government officials.

Many more such disguised problems arose due to the existence of this Act. The act was no different than
its precedent TADA which for similar reasons failed to prove a good enough anti-terrorism law, for being
against the fundamental rights of life and liberty.

UAPA (Unlawful Activities Prevention Act 1967)

The Unlawful Activities (Prevention) Act, 1967, has its origins in colonial times when the Criminal Law
(Amendment) Act was passed in 1908. The objective was broad and clear as it aimed to detain freedom
fighters using the newly modified Act, which for the first time added the term ‘unlawful association.’ Even
after independence, the Nehru government preferred to exploit the Act’s provisions to silence anyone who
opposed the government or the land reforms they wanted to implement. Not only the Centre, but also the
states enacted their own detention legislation, such as the Preventive Detention Act of 1950, and many
Supreme Court judgments, such as AK Gopalan v. State of Madras (1950)4 and Romesh Thapar vs State
of Madras (1950)5, came flooding in to support the fundamental right sanctity.

Despite the fact that the Act has been in force since 1967, the UAPA Amendment Act of 2004 was the first
to add a dedicated Chapter to criminalize terrorist actions (Chapter IV). Following that, revisions to the

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statute were made in 2008 and 2013. Terrorist actions were principally dealt with under the nowrepealed
Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and the Prevention of
Terrorism Act, 2002 (‘POTA’) prior to the drafting of UAPA. The constitutional legitimacy of both TADA
and POTA has been challenged several times throughout the years.

SCOPE AND APPLICABILITY OF UAPA

• It extends to the whole of India.

• Every individual shall be punished under this Act for any act or omission that is in violation of its
provisions and for which he is found guilty in India.
• Any person who commits an offence punishable under this act outside of India shall be dealt with
in accordance with the provisions of this Act as if the act had been done in India.

• This Act’s provisions also apply to:

• Citizens of India and those from other countries.
• People who work for the government.
• This Act also applies to those aboard ships and planes registered in India.

CASE LAW: Union Of India V. K.A. Najeeb

The Supreme Court concluded in Union of India v. K A Najeeb (2021)6 that, despite the UAPA’s restrictions
on bail, constitutional courts can nevertheless grant bail if the accuser’s fundamental rights have been
violated. The accused had been detained at Najeeb for more than five years. The Court found that the rigours
of UAPA bail limitations “will melt down where there is little chance of a speedy trial and the duration
of detention already served has exceeded a substantial portion of the stipulated sentence.”

The Delhi High Court carried this logic a step further in Asif Iqbal Tanha v. State of NCT (2021), saying
that courts should not wait until the accuser’s right to a speedy trial has been completely revoked before

4
1950 AIR,27,1950 SCR 88 5 1950 AIR 124, 1950 SCR, 549 6 FEB 1, 2021(2021) 3 SCC 713
releasing them. Courts should have foresight, especially in situations involving hundreds of prosecution
witnesses and a trial that would take years to complete. Courts should adopt the Najeeb principles.

However, the differing outcomes in cases like Asif Tanha and Mohammad Gaus highlight the disparity in
access to legal remedies like those provided by Najeeb. Mohammad Gaus indicated that he was unaware
that the NIA had filed an appeal and obtained a stay against his bail decision in the Supreme Court after he
was freed on ordinary bail in July 2019. Even when accused persons have access to legal counsel, UAPA

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jurisprudence frequently leads to outrageously unjust conclusions, such as the Supreme Court’s recent home
arrest decision in Gautam Navlakha v. NIA (2021). The Supreme Court ruled that home arrest was judicial
custody, but it refused to recognize Navlakha’s days in house arrest as custody for the purpose of granting
him default bail. In a related case, the Supreme Court’s vacation bench recently ruled that the Delhi riots
bail judgments should not be considered precedent until the state’s appeal against the judgments is resolved.

REMENANTS OF UAPA (Unlawful Activities and Prevention Act 1967)

Preliminary Provisions

1. Terrorist Act: Section 2(k) read with Section 15 of the UAPA, 1967, whoever, by means of criminal
force, overawes, detains, kidnaps, or abducts any person with the intent to threaten or likely to threaten
India’s unity, integrity, security, or sovereignty, or with the intent to strike terror in the people or any
section of the people in India or in any foreign country by using bombs, dynamite, or other explosive
substances or inflammable substances or weapons, overawes, detains, kidnaps, or abducts any person
and threaten to kill or injure such person is said to have committed terrorist acts.

2. Unlawful Activity: As per Section 2(o) of the UAPA, 1967, unlawful activity implies any action made
by an individual or organization whether by committing an act or by words, either spoken or written
or by signs or by visible representation or otherwise:
• Is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part
of the territory of India, or
• Disclaims, questions, disrupts, or is intended to disrupt the sovereignty and territorial integrity of
India; or
• Which causes or is intended to cause disaffection against India?

3. Unlawful associations: The term ‘unlawful associations’ under Section 2(p) signifies any
associations;
• Which has as its goal any illegal activity, or which encourages or assists people to engage in illegal
activity, or whose members engage in illegal activity;

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 • Which has as its goal any activity punishable under Sections 153A or 153B of the Indian Penal
Code, 1860 or which encourages or supports anyone to engage in such activities, or whose members
engage in such activities?

Unlawful Associations

1. Section 3 (Declaration of an association as unlawful): The declaration of an association as unlawful

is to be done by the Central Government by means of a notification in the Official Gazette. The
declaration is to be subjected to the public interest as the provision expressly mandates that the Central
Government should not disclose any fact that it considers to be against the public interest to disclose.
2. Sections 4 and 5 (Dealing with the Tribunal): The concept surrounding the Unlawful Activities
(Prevention) Tribunal has been spread over Sections 4 and 5 of the Act of 1967. The Central
Government may establish, as and when necessary, a tribunal known as the Unlawful Activities
(Prevention) Tribunal, consisting of one person chosen by the Central Government, by the
announcement in the Official Gazette. For the purpose of conducting an inquiry under this Act, the
Tribunal shall have the same powers as a civil court under the Code of Civil Procedure, 1908, when
deciding a case. The Consolidated Fund of India will cover all expenses incurred in connection with
the Tribunal. Any proceeding before the Tribunal will be treated as a judicial proceeding under
Sections 193 and 228 of the Indian Penal Code, 1860, and the Tribunal will be treated as a civil court
under Section 195 of the Code.
The period of operation and cancellation of notification are discussed under Section 6 of the
Act.
3. Section 7 (Central Government’s power to prohibit the use of funds of an unlawful association):
One of the secure ways of prohibiting the encouragement of unlawful associations is by means of
curbing funds they use for their activities and maintenance. The Central Government has, therefore,
under Section 7 of the Act of 1976 been vested with the power to make inquiries if it thinks that any
person has custody of any amounts of money, securities, or credits that are being used or are intended
to be used for the purpose of the unlawful association. Any order made with respect to this provision
is to be carried out expressly in the form of writing.
4. Section 8 (Central Government’s power to notify places used for the purpose of an unlawful
association): Under Section 8, where an association has been declared unlawful by a notification
issued under Section 3, by means of notification, the Central Government can notify places used for
the purpose of an unlawful association.

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 5. Section 9 (Procedural prescription): Adoption of civil procedure as provided under the Code of Civil
Procedure, 1908 is to be followed for the disposal of applications under this Act.

Offences And Penalties

1. Penalty for being a member of an unlawful association, etc. (Section 10):

• Shall be punishable with imprisonment for a term which may extend to two years, and shall also be
liable to fine.
• If a person continues to be associated with such an unlawful association and results in the death of
any person, then he shall be punishable with death or imprisonment for life, and shall also be liable
to a fine. In any other case, he shall be punished by imprisonment for a duration of not less than five
years but not more than life along with a fine.
2. Penalty for dealing with funds of an unlawful association (Section 11): Shall be punishable with
imprisonment for a term which may extend to three years, or with a fine, or both.
3. Penalty for contravention of an order made in respect of a notified place (Section 12): Shall be
punishable with imprisonment for a term which may extend to one year, and shall also be liable to fine.
4. Punishment for unlawful activities (Section 13): Shall be punishable with imprisonment for a term
which may extend to seven years and shall also be liable to a fine. Assistance in unlawful activities shall
result in imprisonment for a term which may extend to five years, or with a fine, or both.

Terrorist Organizations

1. Denotification of a terrorist organization (Section 36): Everything associated with Section 36 is to

be carried out by the Central Government.
2. Review committees (Section 37): Committee consisting of a Chairperson and such other members not
exceeding three and possessing such qualifications as may be prescribed, is to be formed by the Central
Government and is to be recognized and reviewed by committees.
3. Offence relating to membership of a terrorist organization (Section 38): A person commits a crime
related to participation in a terrorist organization when they claim to be affiliated with or associate
themselves with one with the objective of furthering their actions.

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4. Offence relating to support given to a terrorist organization (Section 39): A person is said to have
committed the offence relating to support given to a terrorist organization if he does the following
things:
• Has intention of furthering the activities of a terrorist organization, invites support for the same, or
• Who, with the intent to support a terrorist organization’s activities, arranges, manages, or aids in the
organization or management of a meeting that is known to support the terrorist organization’s
activities.
• A person who speaks at a meeting with the objective of promoting the activities of a terrorist group
or soliciting support for the group.
5. The offence of raising funds for a terrorist organization (Section 40): A person is said to have
committed the offence of raising funds for a terrorist organization, who, with the intention of furthering
the activity of a terrorist organization has invited another to provide money, or receive money or other
property, or provide money for the purpose of terrorism.

Recent Judgments On The UAPA, 1967

Three landmark decisions affecting the Unlawful Activities (Prevention) Act of 1967 (UAPA) were handed
down in 2021.

1. The first is the regular bail granted to three student activists in the Delhi riots case of 2020, namely,
Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal, after the Delhi High Court found that the
police had tried to build a case on inferences and conjectures and had failed to show that their
accusations were prima facie true.
2. The second concerns Mohammad Irfan Gaus and Ilyas Mohammad Akbar’s acquittal by a special NIA
court in Nanded, Maharashtra, in a nine-year-old UAPA case for lack of evidence. Both of them were
suspected of being part of a broader LeT-led terror plot targeting politicians and the media.
3. The third case is the Karnataka High Court’s award of default bail to Muzamil Pasha and others,
involving 115 Muslim men among 350 who were jailed following rioting and police shooting in 2020.
The Court took issue with the fact that the police were given a 90-day extension to file a charge sheet
without giving the accused notice or an opportunity to be heard. While these decisions are encouraging,

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they also serve as a reminder that thousands of people continue to suffer under the UAPA’s arbitrary
regime.

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 CHAPTER IV

RESEARCH PAPERS

1. UAPA (UNLAWFUL ACTIVITIES AND PREVENTION ACT)

1967“CASE STUDY”3: By Anushka Singh

The purpose of this research paper is to analyze and examine the validity of the Unlawful Activities
(Prevention) Act of 19674. This paper will describe in detail the background to the legislating of the UAPA
1967, and go on to further discuss the arbitrary provisions of the act. With the help of landmark case-laws,
the paper will attempt to determine whether the provisions of the UAPA Act of 1967 are valid, both
constitutionally and ethically. A comparison between the various detention and terrorism laws of other
sovereign states will be discussed in this paper. The paper will further attempt, through case studies, try and
establish how the act suppress free thinking, and criminalizes dissent. In conclusion, the researcher will try
and answer the two research questions of the paper and give his own suggestions

The Unlawful Activities Prevention Act not only criminalizes the fundamental right to association but also
dilutes the distinction between political dissent and criminal activity by criminalizing dissident voices, and
acts. In the process, political dissent suffers major delegitimization since particular ideologies, groups and
beliefs are rendered criminal. This engenders a culture of political witch-hunts where selected organization
that questions the legitimacy of the State and the ruling classes are outlawed.

The current state of affairs in the largest democracy in the world is characterized by an outright violation
of democratic rights of people through obtrusive state violence sanctioned by national security legislation.
The Coordination of Democratic Rights Organization (CDRO) report, the terror of law UAPA and the myth
of national security is an attempt to unravel the same through a nuanced study of the Unlawful Activities
Prevention Act (UAPA). It seeks to understand and expose how laws such as the UAPA represent the same
colonial mindset and strategy of banning and criminalizing dissent.

The UAPA is an extraordinary law that criminalizes the fundamental freedom to associate and assemble by
allowing the government to simply ban political organization that question the status quo. It allows the

3
www.pudr.org
4
Vol XL VIII NO 38. SEPTEMBER 22, 2012

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executive to wield excessive power to restrict the democratic rights of citizen to organize and agitate
democratically. The course of Indian democracy provides glaring examples of how the UAPA facilitates
the executive to violates the democratic rights of citizens and implicate them of being proactive members
of society. Soni Sori’s arrest and detention under UAPA and other sections of the Indian Penal Code such
as 124A sedition, 120B criminal conspiracy, etc., embodies such as attempt.

The preseution under the Act as its activities are not considered “Organized” and detrimental to “national
security” by the government. The attempt to maintain the status quo through legislation such as these cannot
be more obvious.

Legislation such as the UAPA is in direct contravention of the fundamental freedom guaranteed by the
Constitution that are indispensable for the functioning of democracy. These freedoms give the right to
people to express themselves through demonstrations and protest and also allow foe public mobilizations
of opinion, irrespective of whether these opinions are critical of the government or not. An extraordinary
law like the UAPA represents the same colonial style of functioning in dealing with dissent. The UAPA can
be traced back to colonial times. In 1909 the criminal law amendment act first used the term unlawful
association to criminalize the Indian national movement ironically; post independent the government uses
the same power to curb political dissent by the uses of law such as the UAPA.

The Constitutional guarantees its citizens certain fundamental freedoms as mentioned in Article 19 of the
Constitution, but there have been efforts by the states to curb these freedoms. However, the judiciary has
taken a pro-liberal stand and upheld these fundamental freedoms in three land mark cases in the decade
following the independence. In three verdicts namely, Romesh Thapar versus the State of Madras (1950),
V.G Row versus the State of Madras (1950) and A.K. Gopalan versus the State of Madras (1950) it was
asserted that fundamental freedoms can be curbed only on the most extreme cases and laws that curb
fundamental rights are essentially unconstitutional.

All three judgments decided against the state prompting a need for an amendment to the constitution that
would allow it to counter movement questioning the status quo.

The first amendment of 1951 was claimed to institute measures to push forward the directive principle of
state policy, while the rhetoric of enforcing the directive principle was at work.

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 2. Challenges to the UAPA:

By Balu Nair & Jai Brunner

Historical Challenges To UAPA And Predecessor Legislations

Although the UAPA has been in force since 1967, the Parliament inserted a dedicated Chapter towards
punishing terrorist activities only in 2004, by way of the UAPA Amendment Act, 2004 (Chapter IV).
Thereafter, amendments were made to the legislation in 2008 and 2013 as well.Prior to this redesigning of
UAPA, terrorist activities were primarily dealt with under the now repealed Terrorist and Disruptive
Activities (Prevention) Act, 1987 (‘TADA’) and Prevention of Terrorism Act, 2002 (‘POTA’). Over the
years, a number of challenges have been made to the constitutional validity of both TADA and POTA.
These challenges were mainly on the ground that the Union did not have the legislative competence to
enact these laws. For instance, in Kartar Singh v State of Punjab9, the validity of TADA was challenged on
the ground that it dealt with the issue of ‘public order,’ which was within the legislative domain of states.
Nevertheless, the Court upheld the validity of TADA. The Court held that ‘public order’ covered issues of
lesser gravity and more serious threats covered in TADA fell within the Union’s domain relating to national
defense.
A similar challenge was mounted against POTA in PUCL v Union of India, which too was repelled by the
Court on similar grounds. By contrast, the UAPA has never been challenged on the ground of legislative
competence.
Nevertheless, the Court has scrutinized specific provisions of the above legislations on various occasions.
For instance, the Court in Sri Indra Das v State of Assam, read down Section 10 of UAPA and Section 3(5)
of TADA, both of which made mere membership of a banned organization, criminal. The Court held that a
literal interpretation of these provisions would make them violative of Articles 19 and 21 of the
Constitution. This was in line with the previous decision in Arup Bhuyan’s case where the Court had held
that ‘mere membership of a banned organization will not make a person a criminal unless he resorts to
violence or incites people to violence or creates public disorder by violence or incitement to violence’.

9
1950 AIR 124, 1950 SCR 594 CHALLENGES TO UAPA,2019

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Challenges to the Amendment Act
So far, 2 petitions have been filed against the Amendment Act – Sajal Awasthi v Union of India and
Association for Protection of Civil Rights v Union of India – with Sajal Awasthi being the lead petition.
Both petitioners have more or less raised similar arguments against the amendment. While this post only
outlines the grounds raised in the lead petition, they overlap greatly with those raised by the Association
for Protection of Civil Rights. The overarching argument of both Petitioners is that an individual may be
identified as a terrorist without any judicial scrutiny and even before the commencement of a trial. Thus,
they challenge the Amendment Act as being violative of the right to equality (Article 14), free speech
(Article 19) and life (Article 21) of the Constitution. As per the Awasthi petition, the right to equality is
violated since the provision does not provide any detailed grounds based on which one may be categorized
as a terrorist. For this reason, the provision is ‘manifestly arbitrary’. The doctrine of manifest arbitrariness,
in brief, states that if a law is made without an adequate governing principle and is excessive or
disproportionate in nature, the same is manifestly arbitrary and thus antithetical to the right to equality.
Awasthi also submits that the amendment goes against the right to dissent, which is a facet of the right to
freedom of speech. They rely on and quote from the decisions in Romesh Thappar v State of Madras and
Maqbool Fida Hussain v Rajkumar Pandey to drive home the importance of free speech and the
concomitant right to dissent.

As to the argument based on Article 21, Awasthi claims that the right to reputation is an integral aspect of
right to life and this right will be taken away by the arbitrary exercise of powers under Section 35.On
August 2nd 2019, the Parliament passed The Unlawful Activities (Prevention) Amendment Act,
2019 (‘Amendment Act’). Soon afterwards, on August 8th 2019, it received the assent of the President. The
Parliament, through the Amendment Act, made a number of changes to the Unlawful Activities (Prevention)
Act, 1967 (‘UAPA’). The primary change though was to Section 35 of UAPA. Before the amendment, this
provision only allowed organizations to be categorized as ‘terrorist’. With this amendment to Section 35,
the Government can now categories individuals as a terrorists, if it believes that the individual is involved
in terrorism. Once the person is so categorized, their name will be added to Schedule 4 of the Act.

Recent cases related to UAPA

Recently, the application of the UAPA was tested before the Supreme Court in the case involving the arrest
of certain activists in relation to the Bhima Koregaon violence.
In this case, on August 28th 2018, the Maharashtra Police had carried out raids across different parts of
India, resulting in the arrest of five activists: Varavara Rao, Sudha Bharadwaj, Gautam Navlakha, Vernon
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Gonzalves and Arun Ferreira. The Police alleged that the activists were responsible for the Elgaar Parishad
in January 2018, which allegedly had triggered the Bhima Koregaon violence.

On August 30th, five eminent citizens submitted a joint petition to the Supreme Court challenging the
‘arbitrary arrests’ of these activists. The petitioners contended that the Police had violated the activists’
rights to equality before the law, free expression, and personal liberty. They argued that the arrests were
arbitrarily made to curb dissent. They emphasized that the activists had been booked under UAPA. Further,
they claimed that the Maharashtra Police had made serious procedural lapses during the raids. Considering
this, they sought the formation of a Special Investigation Team (SIT) to conduct an independent
investigation.
On September 28th 2018, by a 2:1 majority, the Court rejected the plea for a SIT probe. A M
Khanwilkar J. authored the majority opinion, on behalf of Dipak Misra CJI. and himself. D Y Chandrachud
J. authored the dissenting opinion. Looking forward the present challenge against the 2019 Amendment
Act is only in its preliminary stage, with the Union yet to file its reply. Nevertheless, given the nature of
the challenge and past criticisms of the legislation as draconian, the matter is set to provide a good testing
ground for the extent of the Government’s discretion in anti-terror legislations5.

5
Journal of the Indian Law Institute.

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 CHAPTER V

CONCLUSION

Terrorism is unquestionably a global threat, and terrorist organizations continue to target India even today.
As a result, the need for anti-terrorism legislation was recognized, and different laws were implemented.
The Unlawful Activities (Prevention) Act, 1967 is one of the foremost laws in India which was originally
enacted to impose reasonable restrictions on associations that proved to be involved in such activities which
are declared by the legislation. The Act has indeed been the center of several debates because of its abusive
nature and lack of a proper mechanism for backup.

The situation is slated to serve as an excellent proving ground for the scope of the government’s discretion
in anti-terror laws. Nevertheless, considering the nature of the challenge and previous critiques of the
legislation as draconian, it is fair.

Drawing the line between individual liberty and the state’s duty to render security is a case of a classic
predicament. It is up to the state, judiciary, civil society to balance constitutional freedom and the imperative
of anti-terror pursuits. The government has time and again adopted draconian laws such as sedition and
criminal defamation laws to quell dissent.

When such frightful laws violate and infringe the rights of citizens, the Supreme Court must intervene and
reclaim faith in democracy. This Amendment shows hints of the way with which laws were made under the
colonial regime to curb several freedom movements under cover of assuring public order. The Act mainly
criminalizes acts based on ‘ideology’ and ‘association.’

Concerns over the UAPA highlight the need for a balanced approach in the fight against terrorism, one that
protects national security while also ensuring the protection of fundamental rights and freedoms.

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 CHAPTER VI

RECOMMENDATIONS

UAPA authorizes the government to ban “unlawful organizations” and “terrorist organizations” (subject to
judicial review), and penalizes membership of such organizations.

Problems with clauses: - Definition of “unlawful activities” includes “disclaiming” or “questioning” the
territorial integrity of India, and causing “disaffection” against India. These words are vague and broad.
“Membership” of unlawful and terrorist organizations is a criminal offence, and in the latter case, it can be
punished with life imprisonment. But the Act fails entirely to define what “membership” entails.

Implications: - The vague provisions of the UAPA allow govt to arrest people under boundlessly
manipulable justifications. Section 43D (5) of the Act prohibits courts from granting bail to an accused
person if the case diary and the charge sheet appears to make out an offence.

Way Forward- the UAPA’s provisions should go the way of its predecessors — the Terrorist and Disruptive
Activities (Prevention) Act and the Prevention of Terrorism Act. In the alternative, provisions must be
struck down as unconstitutional by the Supreme Court. The power to keep citizens incarcerated for long
periods of time, on vague charges, and without affording them an opportunity to answer their accusers in a
swift and fair trial, is an anathema to democracy and the rule of law.

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 LIST OF REFRENCE

WEBSITES REFERRED.

• https://en.m.wikipedia.org/wiki/Terrorist_and_Disruptive_Activities_(Prevention)_Act

• https://en.m.wikipedia.org/wiki/Prevention_of_Terrorism_Act,_2002

• https://blog.ipleaders.in/unlawful-activities-prevention-act-uapa-1967/?amp=1

• https://blog.ipleaders.in/constitutionality-of-the-uapa-with-regard-to-the-right-
toprotest/?amp=1

• https://www.civilsdaily.com/news/uapa-and-its-misuse/

• https://www.jstor.org/stable/45163398

BOOKS REFERRED.

• Prof. S. Abdul Khader Kunju (commencement on the Unlawful Activities Prevention Act 1967),
2nd Edition.

• Bare Act with Comments Unlawful Activities Prevention Act 1967. (Act 37 of 1967) Law &
Justice. Co (2023).

• Prevention of Terrorism from POTA and TADA. Verma Adarsh Kumar.

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