PUCL report alleges abuse of Unlawful Activities (Prevention) Act

Context

The recent report by the People’s Union for Civil Liberties says that the ‘suo moto power’ by the Centre to transfer investigation from the State police is a ‘serious threat to federalism’.

Highlights of the report:

The per-case conviction rate under the UAPA was 27.57% compared with 49.67% in Indian Penal Code (IPC) cases.
The per-arrestee conviction rate was just 2.8% against 22.19% in IPC cases.
During the check period, 5,924 cases were registered and 8,371 persons were arrested.
Based on the total cases registered, Manipur (1,965 cases) stood at the top followed by Jammu & Kashmir (1,163), Assam (923), Jharkhand (501), and Uttar Pradesh (385 cases).

Issue of bail and conviction rates:

The heart of the “abuse” of UAPA was the issue of bail and conviction rates.
The NCRB figures of acquitted or convicted probably refer to UAPA cases registered in previous years and not to cases filed in the respective years alone.

NIA cases:

The National Investigation Agency (NIA), this year had listed 456 cases of which 78% involved UAPA charges.
PUCL report has examined NIA prosecutions in the UPA and the NDA period, the results are:
69 UAPA cases were registered when the Manmohan Singh-led UPA regime was in power (2009 to May 2014), whereas 88 UAPA cases were registered in the Narendra Modi-led era (May 2014 to continuing).
The average number of cases per year during the UPA regime was 13, whereas it was 34 during the NDA regime
Overall, the maximum number of cases have been registered so far in Delhi (45), followed by Jammu and Kashmir (42), Punjab (29), Kerala (27), Assam (26), Jharkhand (22), Bihar (18), Manipur (18), Maharashtra (16), West Bengal (15), Uttar Pradesh (14), Karnataka (13), Tamil Nadu (13), Andhra Pradesh (12), and Nagaland (7).
38 cases involving Section 18 (punishment for conspiracy, etc.) charge, no incident has been reported in 64% of the cases (152 cases).

NIA’s “suo motu power” to transfer investigation from the State police:

The report said of all the UAPA cases handled by the agency, 41 (12%) were registered suo motu, whereas 316 cases representing 88% of cases were transferred from the State investigating agencies to the NIA.
It is debatable, whether the State governments were consulted or they agreed to these transfers.
The NIA’s “suo motu power” to transfer investigation from the State police was a “serious threat to federalism”.

Suggestions in the report:

The report has sought to repeal of the NIA Act and disbanding of the agency;
It has asked for the immediate release of all political prisoners, on bail;
Strict action must be taken against the police officials “who have willfully launched false and fabricated cases against the marginalized communities, journalists, academicians, students, and others”.
It provides for reparations for wrongfully accused and released by courts.

UAPA Law

Originally enacted in 1967, the UAPA was amended to be modeled as an anti-terror law in 2004 and 2008.
In August 2019, Parliament cleared the Unlawful Activities (Prevention), Amendment Bill, 2019 to designate individuals as terrorists on certain grounds provided in the Act.
In order to deal with terrorism-related crimes, it deviates from ordinary legal procedures and creates an exceptional regime where constitutional safeguards of the accused are curtailed.

Issues Surrounding UAPA

Misuse: It has been seen in the past that the Acts like POTA and TADA, which were specifically enacted to counter-terrorism, were being misused.
Federalism: Police is a state subject under the VIIth Schedule. Giving NIA authority to investigate and attach property is viewed as encroachment over the state's jurisdiction.
Denial of Bail: Under Section 43D(5), bail cannot be granted to a suspect if the court believes that there are reasonable grounds to believe that the charges are prima facie true.
The burden of Proof: Accused has to show that the case is false which is the opposite of other criminal offenses where the burden is on the State.