No UAPA charges in NIA chargesheet against U.S. national & six Ukrainians

Why in News?

Recently, the National Investigation Agency (NIA) filed a chargesheet against American national Matthew Aaron Van Dyke and six Ukrainian nationals, invoking provisions of the Immigration and Foreigners Act. 

Although they were arrested in a case involving alleged terrorist conspiracy, the chargesheet did not include UAPA offences. The agency sought further investigation into those allegations.

What is the UAPA?

• The Unlawful Activities (Prevention) Act, 1967 is India’s principal anti-terrorism legislation. It was originally enacted to deal with unlawful activities and associations threatening India’s sovereignty and territorial integrity.
• Its scope expanded substantially through amendments, particularly after the repeal of the Prevention of Terrorism Act (POTA).
  • 2004: Terrorism-related provisions were incorporated into the UAPA.
  • 2008: The law was strengthened following the Mumbai terror attacks.
  • 2012: Provisions relating to terrorism, financing and related activities were further expanded.
  • 2019: The framework was further strengthened by permitting designation of individuals as terrorists and expanding NIA investigative powers.

Key Provisions of the UAPA: 

1. Unlawful activities and associations: 

• Section 2(o) broadly defines unlawful activity to include activities supporting or intended to bring about the cession or secession of a part of India, questioning or disrupting India’s sovereignty and territorial integrity, or causing disaffection against India. 
• The Central Government can declare an association unlawful under Section 3, subject to review by a Tribunal headed by a High Court judge.

2. Terrorist acts: 

• Section 15 defines a terrorist act as an act intended to threaten or likely to threaten India’s unity, integrity, security, economic security or sovereignty, or to strike terror among people.
• Sections 16-18 provide for punishment for terrorist acts, conspiracy and preparatory activities.

3. Terrorist organisations and individuals:

• The Central Government can notify organisations as terrorist organisations.
• The 2019 amendment extended this framework to permit designation of individuals as terrorists. The Act also provides mechanisms for removal and review of such designations.

4. Support, recruitment and terror financing: 

• The UAPA creates offences relating to:
  • Membership of terrorist organisations
  • Supporting or furthering terrorist organisations
  • Recruitment and harbouring of terrorists
  • Conspiracy and facilitation
  • Raising or providing funds for terrorism
• These provisions target not only perpetrators of violence but also the financial, logistical and recruitment networks that sustain terrorism.

5. Investigation, arrest and seizure:

• Authorised officers can exercise specified powers of arrest, search and seizure.
• The 2019 amendment allows an NIA officer of the rank of Inspector or above to investigate UAPA offences.
• For NIA investigations, the Director-General of NIA can approve seizure or attachment of property connected with terrorism, subject to the statutory framework.

6. Extended period for investigation:

• The period for completing the investigation and keeping an accused in custody (subject to statutory conditions and judicial scrutiny) can be extended from 90 days to 180 days.
• A Public Prosecutor must submit a report indicating the progress of the investigation and specific reasons for continued detention.

7. Stringent bail provision & Sanction for prosecution:

• There is a stringent standard for bail in specified UAPA offences. Bail may be denied where, on examination of the prosecution material, there are reasonable grounds for believing that the accusation is prima facie true. This makes pre-trial liberty substantially harder to secure than under ordinary criminal law.
• Specified UAPA offences require prior sanction of the Central or State Government, as applicable, before the court can take cognisance.

8. Terror financing and financial measures: 

• Central Government can take measures relating to the freezing or seizure of terrorist funds and financial assets and to prevent access to financial resources by persons involved in terrorism. It also facilitates implementation of relevant UN Security Council obligations.

Major Concerns and Challenges related to UAPA: 

• Prolonged incarceration and delayed trials: The combination of stringent bail provisions, an extended investigation period and lengthy trials can result in prolonged incarceration of undertrials. This raises concerns because imprisonment before conviction may acquire a punitive character, despite the presumption of innocence.
• Conflict with Article 21: The UAPA must operate consistently with the constitutional guarantee of life and personal liberty under Article 21. The key challenge is to ensure that national-security objectives do not result in indefinite deprivation of liberty without timely adjudication.
• Freedom of speech and association: Broad counter-terrorism provisions can create a chilling effect on legitimate dissent, journalism, academic activity, protest and civil-society engagement.
• Executive discretion: The power to designate individuals and organisations as terrorists raises concerns relating to due process, transparency, reputational harm and effective review.
• Burden on the criminal-justice system: Complex UAPA cases frequently involve large volumes of documentary, digital and financial evidence, placing pressure on Special Courts, Forensic laboratories, Prosecutors, Witnesses and Investigating agencies.
• Federalism and coordination: Police and public order are primarily State subjects, while terrorism often demands central intervention. Effective counter-terrorism therefore requires cooperative federalism, intelligence sharing and clear coordination between State police, NIA, intelligence agencies, financial authorities and forensic institutions.

Key Constitutional and Judicial Safeguards: 

• NIA v. Zahoor Ahmad Shah Watali (2019): The Supreme Court adopted a restrictive approach to bail and held that the court examines whether the accusation is prima facie true on the basis of the prosecution material at the bail stage.
• Union of India v. K.A. Najeeb (2021): The Court held that statutory restrictions on bail do not eliminate the constitutional jurisdiction of higher courts. Prolonged incarceration and the unlikelihood of an early conclusion of trial can justify constitutional intervention under Article 21.
• Arup Bhuyan v. State of Assam (2023): The Supreme Court revisited its earlier approach to membership of unlawful associations, making the judgment important for understanding the relationship between membership, association and criminal liability under the UAPA.
• Prabir Purkayastha v. State (NCT of Delhi) (2024): The Supreme Court emphasised the right of an arrested person to be informed of the grounds of arrest in writing, treating this as essential for meaningful exercise of legal remedies and protection of liberty.

Recent judicial approach: 

• Subsequent Supreme Court decisions have clarified that Watali does not mean automatic denial of bail or indefinite incarceration. The stringent statutory standard must still operate within the broader constitutional framework, particularly where there is excessive delay in trial.

Safeguards under the UAPA: 

The Act contains several safeguards intended to balance executive power with accountability:

• An unlawful-association declaration is subject to review by a Tribunal headed by a High Court judge.
• Terrorist designation is accompanied by statutory review and removal mechanisms.
• Prosecution of specified offences requires prior governmental sanction.
• Arrest, remand and continued detention remain subject to judicial scrutiny.
• Constitutional courts retain powers under Articles 32 and 226 to protect fundamental rights.

Constitutional Position of Foreign Nationals

• Constitutional protection is not confined entirely to citizens. Articles 14 and 21 protect persons, including foreigners, although Article 19 freedoms are specifically guaranteed to citizens.
• Therefore, counter-terrorism measures against foreign nationals must also satisfy requirements of legality, due process and proportionality.

Way Forward: 

• Evidence-based invocation: Investigating agencies should establish the ingredients of the specific UAPA offence rather than rely on the seriousness of allegations alone.
• Stronger judicial scrutiny: Courts should carefully examine grounds of arrest, custody-extension requests and the statutory basis for continued detention.
• Speedy trials: Special Courts, prosecutors, forensic capacity and witness-protection mechanisms should be strengthened.
• Effective review of designations: Individual and organisational designations should be subject to timely and meaningful review.
• Better federal coordination: Intelligence, financial and forensic information-sharing between central and State agencies should be strengthened.
• Community-based prevention: Counter-radicalisation, community engagement and online interventions should complement prosecution.
• Outcome-based evaluation: Counter-terrorism success should be assessed through disruption of networks, quality of evidence, timely trials and sustainable convictions.

The UAPA reflects the difficult balance between national security and individual liberty. 

A credible counter-terrorism framework must be strong enough to prevent terrorist violence, financing and recruitment, while ensuring that extraordinary powers remain subject to constitutional safeguards, judicial review, proportionality and timely justice.

UPSC Mains Practice Question: 

Q. “The effectiveness of counter-terrorism legislation depends as much on procedural fairness as on investigative powers.” Discuss with reference to the Unlawful Activities (Prevention) Act, 1967. (250 words) 

Practice MCQ:

Q. With reference to the Unlawful Activities (Prevention) Act, 1967 (UAPA), consider the following statements:

1. The Central Government can designate both individuals and organisations as terrorists.

2. The extension of the investigation-related custody period beyond 90 days, up to 180 days, requires judicial approval.

3. The Act applies to Indian citizens irrespective of where the crime mentioned in the Act is committed.

How many of the above statements is/are correct?

(a) Only one

(b) Only two

(c) All three

(d) None

Answer: (c) 

Explanation: 

• Statement 1 is correct: Following the 2019 amendment, the Central Government can designate both organisations and individuals as terrorists under Section 35.
• Statement 2 is correct: Under Section 43D(2), the investigation period can be extended beyond 90 days up to 180 days by the Court, provided it is satisfied with the Public Prosecutor’s report indicating the progress of the investigation and specific reasons for continued detention. Thus, judicial approval is required.
• Statement 3 is correct: UAPA applies to Indian citizens outside India. Therefore, an Indian citizen can be proceeded against under the Act for an offence committed outside India, subject to its provisions.