A Comparative Analysis of UAPA and BNS

The 2004 amendment marked a watershed moment, introducing a specific chapter (Chapter IV) to penalize terrorist crimes. This came after the repeal of previous anti-terror legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and the Prevention of Terrorism Act, 2002 (POTA), both of which had faced constitutional challenges.

The 2008 amendment, enacted in the aftermath of the Mumbai terror attacks, introduced Section 43D(5), which established stringent bail provisions. Further amendments in 2019 expanded the government’s powers to designate individuals as terrorists, previously limited to organizations.

Key Provisions of UAPA

Definitions and Scope

UAPA provides comprehensive definitions that form the foundation of its operations:

• Unlawful Activity: Any action intended to bring about cession or secession of Indian territory, disrupt sovereignty and territorial integrity, or cause disaffection against India.

• Terrorist Act: Under Section 15, this encompasses acts committed with intent to threaten India’s unity, integrity, security, economic security, or sovereignty, or to strike terror in people, using various means including explosives, firearms, or other hazardous substances.

• Unlawful Association: Any association whose object is unlawful activity or encourages such activities.

Structural Framework

UAPA is organized into chapters addressing different aspects of terrorism and unlawful activities:

Chapter II: Unlawful Associations

• Empowers the Central Government to declare associations unlawful through notification

• Establishes a Tribunal consisting of a High Court Judge to review such declarations

• Allows banning of unlawful associations for up to five years

Chapter III: Offences and Penalties

• Criminalizes membership in unlawful associations with imprisonment up to two years

• Prescribes enhanced penalties for members possessing weapons and causing death or grievous injury

• Establishes punishment for unlawful activities extending up to seven years imprisonment

Chapter IV: Punishment for Terrorist Activities

• Provides death penalty or life imprisonment for terrorist acts resulting in death

• Sets minimum five years to maximum life imprisonment for other terrorist acts

• Contains specific provisions for conspiracy, organizing terrorist camps, recruitment, and harboring terrorists

Chapter V: Forfeiture of Proceeds of Terrorism

• Establishes comprehensive provisions for attachment and forfeiture of terrorist proceeds

• Authorizes investigating officers to seize property with approval from the Director-General of Police

Chapter VI: Terrorist Organizations

• Empowers the Central Government to designate organizations as terrorist entities

• Since 2019, allows individuals to also be designated as terrorists

Procedural Provisions

UAPA includes several stringent procedural aspects that distinguish it from ordinary criminal law:

Bail Restrictions: Section 43D(5) creates onerous conditions for bail, requiring courts to deny bail if reasonable grounds exist to believe accusations are prima facie true. This effectively shifts the burden of proof to the accused.

Extended Detention: Suspects can be detained without charge for up to 180 days, compared to the standard 90 days under regular criminal law. This extended detention period has been criticized for potentially violating constitutional rights.

Special Courts: Cases are tried by Special Courts established under the National Investigation Agency Act. These courts have exclusive jurisdiction over UAPA cases, though the Supreme Court has clarified that Sessions Courts may try such cases in the absence of designated special courts.

Investigation Powers: Only senior police officers (Deputy Superintendent or above) can investigate cases, ensuring specialized handling of terrorism-related matters.

The Bharatiya Nyaya Sanhita Framework

The Bharatiya Nyaya Sanhita, 2023, which replaced the Indian Penal Code, 1860, came into effect on July 1, 2024. It represents India’s effort to “decolonize” its criminal law while modernizing provisions to address contemporary challenges.

Section 113: Terrorist Act

BNS introduces terrorism as a distinct offense under Section 113, which closely mirrors UAPA’s definition. The provision covers acts intended to threaten India’s unity, integrity, sovereignty, security, or economic security, or to strike terror in people.

Punishment Structure:

• If resulting in death: Death or life imprisonment and fine

• Other cases: Minimum 5 years imprisonment, maximum life imprisonment and fine

The section also penalizes:

• Conspiracy, abetment, or facilitation of terrorist acts (5 years to life imprisonment)

• Organizing camps for training terrorists (5 years to life imprisonment)

• Membership in terrorist organizations (up to life imprisonment)

• Harboring terrorists (3 years to life imprisonment)

• Possession of property derived from terrorist acts (up to life imprisonment)

Section 111: Organised Crime

BNS introduces a comprehensive definition of organized crime under Section 111, covering activities including kidnapping, extortion, cyber-crimes, trafficking, and contract killing committed by groups or syndicates. This represents a significant addition not present in the IPC.

Penalties for Organized Crime:

• If resulting in death: Death or life imprisonment with minimum fine of ₹10 lakh

• Other cases: 5-10 years imprisonment with minimum fine of ₹5 lakh

Comparative Analysis: UAPA vs BNS

Definition of Terrorism

Striking Similarity: The definition of “terrorist act” under BNS Section 113 exactly mirrors UAPA Section 15. This creates potential for overlapping jurisdiction and enforcement challenges.

Key Elements in Both Laws:

• Intent to threaten unity, integrity, security, or sovereignty of India

• Intent to strike terror in people

• Use of hazardous substances, weapons, or criminal force

• Targeting essential services, monetary stability, or defense installations

Jurisdictional and Procedural Differences

UAPA Advantages:

• Specialized procedural framework with stringent safeguards

• Special Courts with exclusive jurisdiction

• Enhanced investigation powers for senior officers only

• Mandatory government sanction before prosecution

• Extended detention periods and restricted bail provisions

BNS Limitations:

• Lacks procedural safeguards present in UAPA

• No requirement for senior officer investigation or government sanction

• Standard criminal procedure applies, potentially weakening enforcement

Enforcement Discretion

A critical concern is that police officers (Superintendent and above) now have discretion to choose between registering cases under UAPA or BNS for the same terrorist act. This could lead to:

• Forum shopping by investigating agencies

• Inconsistent application of law

• Potential dilution of procedural safeguards

As noted in Section 113 of BNS: “an officer not below the rank of Superintendent of Police shall decide whether to register the case under this section or under the Unlawful Activities (Prevention) Act, 1967”.

Scope and Coverage

UAPA’s Broader Framework:

• Comprehensive provisions for unlawful associations and terrorist organizations

• Detailed forfeiture and asset seizure mechanisms

• Individual and organizational designation powers

• International treaty compliance provisions

BNS’s Limited Scope:

• Focuses primarily on individual criminal acts

• Lacks organizational designation mechanisms

• No equivalent to UAPA’s association banning powers

• Limited asset forfeiture provisions compared to UAPA

Bail and Detention Provisions

UAPA’s Stringent Approach:

• Section 43D(5) creates presumption against bail

• Extended police custody up to 180 days

• Special provisions restricting anticipatory bail

Recent Supreme Court judgments have attempted to balance these provisions with constitutional rights. In Union of India v. K.A. Najeeb (2021), the Court highlighted the possibility of granting bail based on violation of Article 21 rights due to prolonged incarceration. More recently, in March 2025, the Supreme Court held that the ‘bail is the rule and jail is an exception’ principle shall also apply to UAPA cases, despite its stringent bail conditions.

BNS’s Standard Approach:

• Regular Criminal Procedure Code provisions apply

• No terrorism-specific bail restrictions

• Standard detention periods unless UAPA is also invoked

Critical Issues and Concerns

Definitional Overlap and Legal Uncertainty

The identical definitions of terrorism in both laws create definitional duplication that may lead to legal uncertainty. Courts will need to apply the doctrine of harmonious construction, with UAPA as the special law potentially taking precedence over BNS as the general law.

Procedural Safeguard Gaps

Legal experts have identified significant concerns about BNS’s terrorism provisions lacking the procedural safeguards present in UAPA. These include:

• Absence of mandatory government sanction requirements

• No restriction to senior police officer investigation

• Standard court jurisdiction rather than specialized tribunals

Human Rights Implications

Both laws face criticism regarding human rights compliance. UN Special Rapporteurs have noted that UAPA provisions contravene several articles of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. The BNS’s broader and vaguer definitions may exacerbate these concerns.

Human rights concerns with UAPA include:

• Extended pre-charge detention of up to 180 days

• Stringent bail provisions creating presumption of guilt

• Potential for misuse against political dissent

• Cases of prolonged incarceration without trial

Enforcement Challenges

The discretionary power given to police officers to choose between UAPA and BNS registration creates potential for inconsistent enforcement. This could lead to strategic forum shopping where agencies choose the law based on desired procedural advantages rather than legal appropriateness.

In politically sensitive cases, this discretion could be particularly problematic. For instance, in states with political discord between state and Union governments, the Superintendent of Police’s decision to register a case under either UAPA or BNS determines whether the National Investigation Agency (NIA) or state police will investigate.

Conclusion

The relationship between UAPA 1967 and BNS 2023 represents a complex interplay between specialized anti-terrorism legislation and general criminal law. While UAPA remains the primary anti-terrorism framework with comprehensive procedural safeguards and specialized enforcement mechanisms, BNS’s introduction of terrorism provisions creates an overlapping jurisdiction that may complicate enforcement and legal interpretation.

The key challenge lies in ensuring that the introduction of terrorism provisions in BNS does not dilute the specialized framework that UAPA provides for combating terrorism. The identical definitions but different procedural frameworks between the two laws necessitate careful judicial interpretation and clear administrative guidelines to prevent legal confusion and ensure effective counter-terrorism enforcement while maintaining constitutional safeguards.

Future amendments or clarifications may be necessary to address the procedural gaps in BNS and establish clear guidelines for when each law should apply, ensuring that India’s counter-terrorism legal framework remains both effective and rights-compliant.