Unlike articles with misleading titles, this article is indeed about grammar. We look at the grammar, or more specifically the (un)grammaticality of, Section-43-A of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The said section inserted vide the Unlawful Activities (Prevention) Amendment Act 2008 deals with the power of arrest and search under the act.
In an article critiquing UAPA following the 2008 Amendments, the authors called the provisions of search, seizure, and arrest “overly broad” and of “an extremely low standard of certainty”, which may “greatly increase the risk that individuals will have their privacy violated or be deprived of their liberty, on vague and unspecified grounds.”* Our attempt is to show that the language in which the section is couched in only compounds the vagueness. The disorganised state of the said section reflects the lack of judicial attention and scrutiny over it, not to speak of the questions raised about the observance of the safeguards built into the Act. As noted in Prabir Purkayastha v. State (NCT of Delhi) (2024) 8 SCC 254,
“48. … ‘ground of arrest’ would be required to contain all such details in [the] hand of the investigating officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on which he was being arrested so as to provide him an opportunity of defending himself against custodial remand…”
Therefore, the necessity of having clarity in the section that confers the power to arrest cannot be exaggerated.
A plain reading of section 43-A of UAPA presents nothing short of a word jumble. The section comprised a long, single-sentence paragraph running into 170 words as quoted below:
“43-A : Power to arrest, search, etc. – Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central government or the state government, as the case may be, knowing of a design to commit any offence under this Act or has reason to believe from personal knowledge or information given by an person and taken in writing that any person has committed an offence punishable under this Act or from any document, article or any other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorize any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search a such building, conveyance or place.”
Prior to the 2008 Amendment, UAPA had no separate section conferring the power to arrest or search on any officer. Nor did the Prevention of Terrorism Act, 2002 (POTA), which was repealed in 2004, and which was the source of most of the terrorism related provisions in UAPA, have such a provision. POTA did have the provision to have a Designated Authority as defined in section 2(b) of the Act, which was incorporated into UAPA (section 2(e)), by way of the 2004 Amendment. Following the 2004 Amendment, the powers of the Designated Authority – which is an “officer of the Central Government not below the rank of Joint Secretary” or an “officer of the State Government not below the rank of Secretary”, and which must be notified and published in the Official Gazette (as per section 2(b) of POTA and section 2(e) of UAPA) – were the same in both the Acts. As per section 7 of POTA and section 25 of UAPA, the Designated Authority had the power of superintendence over the seizure or attachment of property purported to be proceeds of terrorism and had, as per section 13 of POTA and section 31 of UAPA, the power of a civil court “for making a full and fair enquiry into the matter before it”. However, it was only in 2008 that the Amendment conferring the power of search and arrest on the Designated Authority was introduced into the UAPA.
The conferment of the power to arrest and search on an authority not part of the police force has to be read in the light of the Statement of Objects and Reasons of the 2008 Amendment Act, which mentions that further provisions have been introduced “with the aim of strengthening the arrangements for speedy investigation, prosecution and trial of cases related to terrorism related offences, while at the same time ensuring against any possible misuse of such provisions” (emphasis supplied). As observed in Mahesh Kariman Tirki v. The State of Maharashtra (Criminal Appeal Nos. 136 and 137 of 2017, Bombay High Court), Section 43-A of UAPA has “a specific safeguard incorporated with a view to require empowerment from a High-Ranking State Officer before arrest and seizure…to avoid false implication of a citizen” (para 283).
Apart from having a Designated Authority, section 43-A also specifies what powers are conferred on the authority and on what grounds the powers can be exercised. In order to facilitate the understanding of this section, we shall divide it into three parts on the basis of these semantic functions. Part I specifies that class of officers empowered to act as per the section. Part II spells out the grounds on which the officer can exercise such powers, and Part III describes what the powers are. Given below is a tabular representation of the three parts:
TABLE 1 : The Tripartite Division of Section 43-A of UAPA
In having a high-ranking official as an authority empowered to conduct search and arrest who is different from the investigating officer (as specified in Section 43 of UAPA) and in having specified the grounds on which these powers can be exercised, UAPA makes a substantial departure from the previous terror laws. The grounds that are specified in s.43-A of UAPA are, however, largely copied from Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) without making the necessary changes to fit in with the context of UAPA. Compared to the 170-word long Section 43-A of UAPA, the 343-word long Section 42 of NDPS Act, inserted vide the 2001 Amendment Act, is of gargantuan proportions. Nevertheless, if we break Section 42 of the NDPS Act into three parts corresponding to the tripartite division we made for Section 43-A of UAPA as we did in the table above, we will find that the part that spells out the grounds is almost identical to that of Section 43-A of UAPA.
We quote the relevant part of Section 42 of the NDPS Act below:
“42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (l) Any officer …if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset…”
It can be easily made out that the part beginning “has reason to believe” has been imported wholesale into UAPA from NDPS Act by dropping the phrase that pertains exclusively to the subject matter of NDPS Act (like “narcotic drugs”) and making a few minor grammatical changes. However, while doing a ‘copy-paste’ job, the drafters of the Amendment Act of 2008 seem to have paid scant attention to what sense it makes in the context of UAPA.
Arrest has been said to be “one of the gravest possible consequences emanating from criminal law” (para 28 of Mohammed Zubair v. State of NCT of Delhi and others 2022 Live law (SC) 269). The locus classicus on the power to arrest, Arnesh Kumar v. State of Bihar (2014 AIR SCW 3930) puts it as follows:
"Police officers make arrests as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person."
Not just the question of who the empowered person is, but the grounds on which the power can be exercised is, therefore, of equal importance. The fact that 60% of the 170-word long section, or 103-words, deal with the grounds under which the power can be exercised points to the importance accorded to this aspect.
In order to justify an arrest or search, there should be clarity about what kind of circumstances call for the exercise of such power. “When power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power" (para 28 of Mohammed Zubair). As observed in Arvind Kejriwal v. Directorate of Enforcement (2024 Cri LJ 3531), the “court [can] scrutinize the validity of the arrest in exercise of power of judicial review” (para 39) and “… not to undertake judicial scrutiny when justified and necessary, would be an abdication and failure of constitutional and statutory duty placed on the court to ensure that the fundamental right to life and liberty is not violated” (para 39) .
As we shall show, the 103-word long Part-II that spells out the grounds, due to its clumsy wording, does not give clarity as to when the powers conferred by this Section are to be exercised. It is no surprise that it is the part that is copy-pasted from the NDPS Act (i.e. “has reason to believe…place”) that is riddled with problems. In order to facilitate a proper understanding, we shall break that part that spells out the grounds into sub parts as shown in the table below. As we can see, there are two broad grounds, G1 and G2. The latter has three sub scenarios numbered i, ii, and iii. G1 and G2 are coordinated by or. So are the three sub scenarios.
TABLE 2 : The Grounds
As we showed earlier, the part beginning “has reason to believe…” has been copy-pasted from the NDPS Act. We can identify the following grammatical problems in that part:
(1) While G1 is introduced by the -ing from knowing, G2 is introduced by “has.” Since G1 and G2 are coordinated by “or,” they need to be of the same type.
(2) While G2 (i) specifies the belief that the officer should have (viz, “that any person has committed an offence punishable under this Act”), G2 (ii) doesn’t do so.
(3) In G2 (iii), the first phrase (“any illegally acquired property”) is not related to any of the words or phrases following it, which are all about documents or other articles that may furnish evidence of holding illegally acquired property and about such documents being hidden in buildings and so on.
(4) The part beginning “is kept…” cannot be grammatically connected to any of the earlier parts of the Section.
The problem with “has” can easily be fixed by changing it into “having.” However, the corrections required to rectify the other anomalies are not that apparent as it is not clear what the intended meaning is. In the context of NDPS Act, Section 42 was introduced in order to “confer power of entry, search, seizure, etc. … and for tracing, freezing, seizing and forfeiture of illegally acquired property upon the empowered officers” (Statement of Objects and Reasons, Amendment Act of 2001).
Therefore, the whole part that specifies the grounds is about contraband substance or documents that furnish evidence of offence under the Act or illegally acquired property being kept hidden and the power of the empowered officer to enter, seizure and arrest.
Keeping the general scheme of the Act in mind, we shall suggest the following modifications in order to make the section read coherently:
(1) G2 (iii) can be rescued by severing “from any illegally acquired property” as a stand-alone phrase and recasting the remnant part as a different ground (G3).
(2) The clause “that any person has committed an offence punishable under this Act” has to be transposed from G2 (i) and placed after G2 (iii).
The modified grounds will look as follows:
TABLE 3 : The (Modified) Grounds
The full text of the modified version of Section 43-A of UAPA is given in the Appendix. Admittedly, there is much scope for further improvement. We have kept our version faithful to the original to the extent possible. The minimal changes by way of introduction of certain words, rearrangement of words and phrases, and changes in punctuation have been carried out only in so far as they are essential to give clarity.
An important question we have left unaddressed is the necessity of using comprehensible language in legal documents. The convoluted syntax of this Section seems to be meant to be befuddle rather than illuminate. The slipshod drafting work of this Section perhaps reflects the hurried job that was carried out when the 2008 Amendment Act was pushed through along with the National Investigation Agency Act, 2008 barely a month after the carnage in Mumbai usually referred to as 26/11. While many of the newly inserted sections were rehashed from POTA, the core of Section 43-A, as we demonstrated above, was modelled on Section 42 of the NDPS Act.
While discussing Section 19(1) of the Prevention of Money Laundering Act, 2002 (PML Act) that deals with the power of arrest, the Supreme Court observed that the grounds mentioned in clauses (a) to (i) of Section 41(1) of the Code of Criminal Procedure, 1973 (CrPC) and those mentioned in Section 19(1) of the PML Act are different. It noted that.
“… The grounds mentioned in Section 41 [of the CrPC] are different from the juridical preconditions for exercise of power of arrest under Section 19(1) of the PML Act. Section 19(1) conditions are more rigid and restrictive. As such, the two provisions cannot be equated. The legislature has deliberately avoided reference to the grounds mentioned in Section 41 and considered it appropriate to impose strict and stringent conditions that act as a safeguard…” (Para 40 of Arvind Kejriwal).
In the case of UAPA, more than the grounds, it is the identity of the empowered officer that is different. Section 43-C of UAPA (which was also part of the 2008 Amendment) clearly specifies that the provisions of CrPC shall apply only “insofar…as they are not inconsistent with the provisions of this Act [i.e. UAPA], to all arrests, searches and seizures under this Act.” As it confers the power to arrest and search on a High-Ranking State Official and as it has a set of grounds distinct from Section 41 of the CrPC, the provisions of Section 43-A of the UAPA are indeed inconsistent with those of the formers, and, therefore, should override the latter.
The fact that this particular section inserted in 2008 has survived in its pristine form till date without any modification or close scrutiny of the courts and has been left untouched by the Amendment Acts of 2013 and 2019 is a reflection of the lack of judicial scrutiny over the power of arrest and search under UAPA. A judgement that discusses Section 43-A to some extent is Mahesh Kariman Tikri (supra), which only touches on the question of the empowered officer. In fact, it is only recently that the power to arrest under special laws like PML Act has received judicial scrutiny in judgements like Arvind Kejriwal (supra). Let us hope there will soon be occasion for the courts to scrutinize the same under UAPA as well.
APPENDIX: Modified version of Section 43-A of UAPA
Any officer of the Designated Authority empowered in this behalf, by general or special order of the Central Government or the State Government, as the case may be, knowing of a design to commit any offence under this Act; or having reason to believe from personal knowledge or information given by any person and taken in writing, or from any document, or article or any other things which may furnish evidence of the commission of such offence, or from any illegally acquired property that any person has committed an offence punishable under this Act; or having reason to believe that any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place may authorize any officer subordinate to him to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search such a building, conveyance or place.
* “Back to the future: India, 2008 counterterrorism law.” July 27, 2010. URL : Human Rights Portal.
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