Why UAPA is a threat to media freedom in India

The Unlawful Activities (Prevention) Act serves as a powerful tool for the state to stifle media dissent and intimidate truth-seeking journalists.

Two provisions in the UAPA have been identified with the inherent potential to make the very process a source of punishment for the accused. Seen here are posters from a meeting in Kochi held to highlight the problems in the law in January 2020. | Photo Credit: THULASI KAKKAT

The arrest of the NewsClick founder and Editor-in-Chief, Prabir Purkayastha and its Human Resources head, Amit Chakraborty under the UAPA has brought into focus the gross abuse of the Act by those in power to curb dissent. The First Information Report (FIR) names Purkayastha, the activist Gautam Navlakha (who is under house arrest in the Bhima Koregaon case) and the U.S. businessman Neville Roy Singham.

The FIR invokes Sections 13, 16, 17, 18 and 22 of UAPA, besides Sections 153A and 120B of the Indian Penal Code. Of these, Section 17, which deals with punishment for raising funds for terrorist acts requires scrutiny. The prosecution, under this section, need not prove that the accused actually used the funds for commission of a terrorist act. The punishment under this section is imprisonment for a term which shall not be less than five years, but which may extend to imprisonment for life, and shall also be liable to fine.

Section 18 seeks to punish even any act “preparatory to the commission of a terrorist act” with imprisonment for a term which shall not be less than five years, but which may extend to imprisonment for life, and shall also be liable to fine. According to lawyer, Abhinav Sekhri, any harmless conduct stands a chance to be labelled not only as criminal but as terrorism under this clause.

The FIR claims that a “large amount of Chinese funding” was used to publish “paid news” against the Indian government, while it is silent on the instances of such paid news items published in NewsClick.

One does not know why the Delhi Police invoked Section 22—punishment for threatening a witness—against the accused in the absence of specific allegations that they threatened any.

More infirmities in the case against the accused in the NewsClick case are likely to surface in the days to come, but what it shows is that the prosecution is not keen at all on taking this saga to its logical culmination, by seeking the conviction of the accused after investigating and finding proof for any of the offences being alleged against them.

Instead, the prosecution seems to aim at using the process under the UAPA, to inflict punishment on the accused, without having to prove any of the charges.

Process is punishment

Two provisions in the UAPA have been identified with the inherent potential to make the very process a source of punishment for the accused.

The proviso to Section 43D(2), which allows the custody of an individual to be extended from 90 days to 180 days before a charge sheet is filed is one. The proviso enables the Court, if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation, and the specific reasons for the detention of the accused beyond the period of 90 days, to extend it to 180 days.

It is sufficient for the court to rely on the prosecution’s claim that it is not possible to complete the investigation within the period of 90 days, for permitting this extension to 180 days.

Another proviso to Section 43D(2) enables the investigating police officer to request police custody of the accused from judicial custody by simply filing an affidavit stating the reasons for doing so, and by explaining the delay in requesting such police custody.

The proviso to section 43D (5), which places restrictions on the grounds of bail is another. This proviso says an accused shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

The Supreme Court, in NIA v Zahoor Ahmad Shah Watali (2019), held that once the prosecution places its charge sheet and materials, it is presumed to be prima facie true, and it is up to the defense to prove that it was prima facie false.

The court’s verdict imposed a challenging onus on the part of the accused to secure bail, as the Supreme Court has repeatedly held that it is not required to examine the evidence in detail at the stage of granting or denying bail. In order to prove that the evidence is prima facie false, the counsel for the accused has to persuade the Court to analyse the evidence in detail, which would be inconsistent with the law laid down by the Court.

Therefore, a court which is not inclined to examine the evidence in detail is likely to deny an opportunity to the accused to prove that the evidence is prima facie false and adopt the easy option of presuming that the evidence is prima facie true.

While it is true that the Watali judgment had set a very high threshold, which prohibited many accused persons under UAPA from approaching the Court for grant of bail, there has been a slight shift in the post-Watali jurisprudence. In the case of Bhima-Koregaon-accused activists Vernon Gonsalves and Arun Ferreira, the Supreme Court concluded that evidence could not be accepted at face value, and there is a need to have at least a surface-level examination of the materials placed before the court before granting or denying bail.

The Court then found the documents in the Bhima Koregaon case lacking probative value, and bordered on hearsay, meriting their rejection. The Court, using the Watali reasoning, concluded that the evidence against the accused was not prima facie true.

Notwithstanding this analytical improvement in the bail cases under UAPA, there has been little difference to the enormous delay in getting relief for the accused, who deserve.

Senior advocate, Rebecca John, put this succinctly at a recent discussion: “Had there been any ordinary cases, the accused persons would have gotten bail months ago, but because there is UAPA attached to the charge sheet, they continue to be incarcerated on little or no evidence. So, this is really the tragedy of persons arrested under UAPA.”

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.