In February 2021, the Union Home Ministry presented in the Rajya Sabha data on the number of cases registered under the Unlawful Activities (Prevention) Act (UAPA). Of the total cases registered between 2016 and 2019, the convictions were only a minuscule fraction of 2.2 per cent. These numbers are not only a reminder of the rampant misuse of the statute but also a reason for examination of its constitutionality.
Background
Although the UAPA had “humble beginnings” in 1967, as put by A.G. Noorani (“ UAPA: India's anti-India Act ”, Frontline , November 20, 2020), its evolution is closely linked with political changes in India. The law has also maintained a symbiotic relationship with other pieces of anti-terror legislation from time to time. In terms of total convictions, the Terrorist and Disruptive Activities (Prevention) Act (TADA) also recorded a low rate compared with the number of charges. TADA was enacted in 1985 and then in 1987 and finally allowed to lapse in 1995 owing to its growing unpopularity.
Thereafter, in 2002, the Prevention of Terrorism Act (POTA) became the successor anti-terror statute having its origin in an ordinance. It repeated the egregious mischiefs of TADA. POTA, too, had its victims across the country. The public outcry against the law was so strong that the United Progressive Alliance (UPA) government had to promise its repeal in 2004 before coming to power. The Act was accordingly repealed in 2004. The repeal of the law was an instance of democratic accountability and shows how popular criticism can lead to effective and real changes in the legislative realm. The state was constrained to repeal the law, reaffirming people’s faith in democratic institutions and processes.
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The original UAPA was promulgated against the background of several instances of political unrest in India. It sought for “more effective prevention of certain unlawful activities of individuals and associations”. Through a 2004 amendment, a chapter on punishing terrorist activities was added. The Act was substantially amended in 2008, 2013 and thereafter in 2019. The amendment in 2019 allowed individuals also to be categorised as terrorists. Before this amendment, the Act had a narrower scope since terrorist organisations were targeted and the organisations were expressly mentioned in the First Schedule.
Draconian content
The way the provisions of the law are enacted is draconian. The law takes an exception to settled legal principles and rights that the accused in a criminal case are ordinarily entitled to. The accused are introduced to a new set of procedural and substantive rules—all of which give significant leeway to the state or the prosecuting authority.
Starting from the definition of unlawful activity, (s. 2(o)) and terrorist act (s. 2(k)), the provisions of the Act are designed to trap the opponents of the regime. Section 2(o) defines unlawful activity as “any action” that interalia “supports or intended to bring about” cession or secession, disrupts or questions the “sovereignty and territorial integrity” or which “causes disaffection against India”. The definition is wide and elastic and allows the government to interpret criticism and dissent as falling within the purview of the provision.
For example, questioning the human rights abuses in Kashmir could be interpreted as an action questioning India’s sovereignty. A criticism of the Citizenship (Amendment) Act could be construed as something that causes disaffection against the country. In this way, any act like possession of critical literature or speech against the ruling regime could be penalised. Well-known authors, writers and activists such as Anand Teltumbde, Gautam Navlakha, Safoora Zargar, Umar Khalid and Sudha Bharadwaj were incarcerated essentially on the basis of varied forms of this interpretation.
Also read: ‘Secularists should challenge UAPA in Supreme Court’
Under the law, those arrested can be kept in jail for up to 180 days without a charge sheet being filed. Section 43D (5) of the Act makes it almost impossible for an accused to get bail. Bail can be denied if the court is of the view that the accusations are prima facie true. This standard is interpreted to be a low one, and courts routinely deny bail on the strength of this provision. Often, the version of the prosecution is taken on face value in UAPA cases.
Sometimes, even constitutional courts prescribe jail as a rule, even when there is no prima facie case under the UAPA. When a journalism student Thwaha Fasal was detained in jail for more than 10 months in Kerala, a special court granted him bail. In appeal, the Division Bench of the Kerala High Court set aside the special judge’s order and sent the youngster back to jail. Lawyer Gautam Bhatia said the episode echoed “the unwholesome servility of the Kerala High Court”. The High Court said in the judgment: “The prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not (be) readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint”. The Supreme Court’s view that mere sympathy with a banned organisation without any incitement to violence does not amount to an offence under the UAPA (Arup Bhuyan, 2011) is seldom followed by the trial courts while rejecting the bail plea.
Another barrier for the accused is the long delay in finalising the trial. Trials are dragged on for years, at the cost of persons languishing in jail, often for crimes they never committed. The process in itself becomes the punishment. A criminal lawyer friend told us of the delaying tactic of the investigating authority in these cases, by dumping enormous paperwork to the lawyers of the accused, projecting them as incriminating evidence. Any petitions to secure basic facilities to undertrials, such as provisions of books, letters, etc., are routinely objected to, possibly as part of the larger blueprint of the government in dealing with UAPA cases.
Section 38 of the Act talks about offence by association, by which even a casual relation with a person belonging to a prohibited organisation can be included. This could be a doctor, lawyer or a journalist or someone who inadvertently gave food or livelihood to the accused. A necessary distinction between an innocent association and a criminal association is not made in the statute.
Also read: How the UAPA and the NIA are used to crush dissent
Sections 43A and 43B give unfettered power to the police in significant steps such as arrest, search and seizure without adequate safeguards and judicial scrutiny. The police, acting in tune with politicians, are able to present some material as evidence by raiding the houses and seizing the materials of the accused. In some cases, evidence is planted to incarcerate persons the government is unhappy with. A United States-based firm found recently that in the Bhima-Koregoan case, fabricated evidence was planted in digital devices such as laptops.
Settled principles of criminal law such as presumption of innocence and proof beyond reasonable doubt are the virtues of a justice system. These safeguards are significant to ensure that individual liberty is not compromised at the cost of settling political scores. However, Section 43E of the UAPA builds into the law a statutory presumption of guilt in certain circumstances. Instead of the prosecution being required to prove the guilt of the accused as it happens in conventional criminal cases, the accused is required to prove his innocence. The ultimate acquittal—often very delayed—does not by itself compensate persons for the life that has been lost.
Judicial response to anti-terror laws
It is saddening to analyse the response of courts to pleas challenging the constitutionality of anti-terror legislation. In 1994, the Supreme Court upheld the constitutional validity of TADA in Kartar Singh vs State of Punjab . The court held: “Such being the terrorist ideology and philosophy, a State which is obliged not only to maintain the rule of law and peace, but to maintain social environment for cultural progress and development of the society is legally entitled and morally justified to take such measures as are necessary to combat such undesirable activity. Use of force by the State to overcome such inhuman menace invading State's monopoly to counter it cannot be seriously doubted.”
In 2004, the Supreme Court endorsed the validity of various provisions of POTA in PUCL vs Union of India . The court said that the law was part of India’s international obligation to fight terrorism. The constitutional validity of the Armed Forces Special Powers Act, 1958, used for illegal arrests, detention and enforced disappearances in north-eastern India was also upheld by the apex court ( Naga People's Movement of Human Rights vs Union of India, 1997 ).
Also read: UAPA: India's anti-India Act
Various provisions of the UAPA are vulnerable to constitutional scrutiny on grounds of violation of the rights to life, speedy trial, free speech and equality. The newly inserted provisions to the law are challenged in the Supreme Court in two cases ( SejalAwasthivs Union of India and Association for Protection of Civil Rights vs Union of India, 2019 ). The cases are still pending, and persons continue to be tried under the law.
However, the track record of the court in considering the legal tenability of anti-terror legislation is not positive. The court acts as “jurispathic”—interpreting the law in the “shadow of coercion”, in the words of Robert Cover, demolishing the euphoria about the counter-majoritarian nature of the court in modern constitutions. In the context of the recent trend of the Supreme Court of maintaining apparent reluctance to interfere with executive and legislative actions, there are no reasons to be optimistic for a judicial intervention.
Political undertones
Anti-terrorist laws are often enacted in a hurry as an immediate response to events or movements. They therefore lack pre-legislative consultation and public deliberation. They are also brought about to ostensibly provide a sense of security to the masses. As Benjamin Friedman says in the American context, the danger to liberal values “comes from our reaction to terrorism than the thing itself”. Anti-terror laws are the products of an impulsive reaction of the state and its feeling of insecurity. They fail to maintain objectivity and fairness in procedure and substance. The paranoia of the power centre is the hallmark of the law—no due process, no safeguards of rights and no adversarial balance between the state and the citizen.
The misuse of the UAPA has not been altogether new after the Bharatiya Janata Party came to power in 2014. The law has always remained as a powerful tool in the hands of successive regimes to suppress opposition. It was an easy device to label political movements as criminal activities and obtain sanction from judicial authorities, at least for initiating prosecution. However, the emergence of far-right groups on the ruling front has amplified the extent of the misuse of the law. The statistics released by the National Crime Records Bureau showed that under the Narendra Modi government, the number of UAPA cases in 2019 increased by 33 per cent from 2016. COVID-19 presented the perfect opportunity for the government to unleash the law in an unregulated manner. Numerous arrests of prominent persons under the UAPA since 2020 are a testimony to this.
Also read: The Union government’s assault on free speech
The Left in India, especially the radical Left, has been consistently targeted by the state. Anushka Singh writes: “While the invocation of UAPA against left-wing extremism passes in the name of national security, the Hindu right-wing terror does not face any persecution under the Act as its activities are not considered ‘organised’ and detrimental to ‘national security’ by the government” ( Economic &Political Weekly , September 22, 2012). One finds that today the aggrandising state run by the same Hindu right wing uses the law against its political opponents. The changed political climate also benefits the government. Unlike the period following the Emergency (1975-77), a large-scale political movement against the state is virtually absent in the current political climate. The government is able to trap isolated intellectuals or political fringe groups. At the macro political level, the government simply utilises anti-terror laws to further the Hindutva agenda in an attempt to ‘deconstitutionalise’ the country.
The approach of the current government on the UAPA is consistent with its efforts to destabilise democratic institutions. Supressing human rights is a corollary to tunnelling the agenda based on hatred, fear and terror. Tarunabh Khaitan says that in the first National Democratic Alliance (NDA) regime (2014-19), “something distinctive” occurred and the “systemicity of (the government’s) assaults on all accountability-seeking mechanisms made it different from previous governments, which had all been constitutionally naughty every now and then”. The misuse of the UAPA during the current NDA 2 period is the culmination of the “subtlety and incrementalism of (the) assaults” on institutions as pointed out by Khaitan. The selective use of the UAPA in recent years illustrates this point.
The way forward
Dr B.R. Ambedkar famously said: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.” One of the ways to understand Ambedkar’s sentiment is to realise that constitutions alone cannot solve political and democratic crises. For democracy to work, it is imperative that accountability sustains, and formal and informal political institutions work independently. Robust mechanisms of checks and balances, including from civil society, must guard the sliding away of the Republic. Widespread and strong political movement is the bedrock of surviving liberal nations. India cannot afford to wait long to resist oppressive power, for freedom is something that we hold dear.
Kaleeswaram Raj and Thulasi K. Raj are lawyers at the Supreme Court of India. They can be reached at kaleeswaramraj@gmail.com an d thulasikraj.ils@gmail.com.
