How the UAPA and the NIA are used to crush dissent

Senior advocate Rebecca Mammen John on how the Unlawful Activities (Prevention) Act and the National Investigation Agency are being “weaponised” against Indians who hold a different viewpoint from the government.

Rebecca Mammen John.

Rebecca Mammen John, Senior Advocate at the Supreme Court of India, believes that a larger public debate, along with consistent judicial interventions, is the need of the hour if the draconian Unlawful Activities (Prevention) Act (UAPA) is to be removed from the statute books. One of India’s leading criminal lawyers, she has handled several UAPA cases, including of those accused in the Delhi riots cases such as the Jawaharlal Nehru University student Sharjeel Imam and the activist Khalid Saifi. Sharjeel, Khalid and others who have been charged under the UAPA have maintained that they were only leading protests against the Citizenship (Amendment) Act, for which they were targeted as dissenters.

Rebecca John has been a vocal advocate against the death penalty and always speaks her mind on the pressing issues of the day. At a recent webinar on “The Right to Dissent”, she stated: “Jail is the rule and bail is the exception now, and journalists have to seek legal opinion on their articles before publishing.”

Last year, she obtained an acquittal for Kobad Ghandy, ten years after he had first been accused of being a member of the politburo of the Communist Party of India (Maoist) and was charged under the UAPA among other laws. She represents Professor G.N. Saibaba, a former professor of Delhi University who is 90 per cent disabled and who has been interned in an “anda cell” (solitary confinement) in Nagpur Central Jail for his alleged links with Maoists. She also represents several members of the Tablighi Jamaat who were in the eye of the storm during the COVID-19 pandemic. Accused of being “superspreaders”, they were arrested and lodged in different parts of the country. Many of them have since got bail.

Landmark cases

Rebecca John’s landmark cases include the widely publicised Hashimpura, Ishrat Jehan fake encounter and Batla House cases. In the Hashimpura case, 16 members of the Provincial Armed Constabulary were convicted and awarded life sentences by the Delhi High Court, 31 years after the massacre of Muslims in Meerut.

Recently, she defended and won an acquittal for journalist Priya Ramani in former editor and Bharatiya Janata Party Minister M.J. Akbar’s defamation case against her over allegations of sexual harassment made against him. It was hailed as a landmark victory in the Indian #metoo movement, and Rebecca John told the press it was “probably the most important case of my career”. She represented Rajesh and Nupur Talwar in the much-publicised Aarushi murder case, obtaining an acquittal for both from the Delhi High Court. The Harshad Mehta case and the Hawala scandal are some of the other high-profile cases she was part of early on in her career.

In September 2018, Rebecca John delivered a lecture titled “Understanding the Unlawful Activities (Prevention) Act 1967” in a seminar at the Delhi High Court, wherein she concluded by asking: “Is it not time to ask whether the UAPA is running counter to the established canons of jurisprudence? Is it not true that the UAPA serves as a reminder that we are so far away from the concept of ‘Constitutional morality’ and ‘Transformative Constitution’ that the Supreme Court so brilliantly enunciated in the recent Navtej Johar judgment? Does the UAPA not take us into a dark shadowy world of banned organisations and fronts of banned organisations, with its nebulous memberships and ambiguous associations, all based on loose language and loosely constructed, enigmatic definitions that are open-ended, vague and wholly unclear? Is not the allegation of misuse and the long periods of incarceration of undertrials, often without any credible or cogent evidence, a reality that we urgently need to address? Are we really interested in punishing the terrorist or is it simply a camouflage to keep the dissenter away for as long as the trial lasts, because given its track record, the process is really the punishment.”

Asked by Frontline about how the UAPA, along with sedition had, of late, become the choice of law for pre-trial incarceration of an accused (increasingly a critic of the current dispensation), Rebecca John stated: “The judicial interpretation of Sedition (124 A) is crystal-clear that only those speeches or actions that result in violence or have a propensity to cause violence can fall within the ambit of the section. There are some overlapping definitions in the UAPA, but the law stands out for two reasons: one, the long rope given to prosecuting agencies to complete investigations, and two, the stringent conditions to be met before an accused can be granted bail. Added to this, are some judgments of the Supreme Court that interpret these provisions in a very strict and literal sense, thereby making pre-trial bail an impossibility.”

Responding to a question about the latest amendment to the UAPA, she said: “Section 35 of the UAPA was amended in 2019 to include names of individuals in the Fourth Schedule, not just organisations mentioned in the First Schedule. The Act specifies no procedures that the government must follow before arriving at its belief. As the determination that someone is a terrorist is taken as a starting point, his ability to contest this is effectively extinguished.”

The road ahead

Rebecca John added: “We missed a golden opportunity when we failed to learn from the tragic tales of misuse of laws like TADA and POTA. Instead the Manmohan Singh-led United Progressive Alliance government introduced the Unlawful Activities (Prevention) Bill and the National Investigation Agency Act in 2008, and both these legislations are now being weaponised against Indians who may have a viewpoint different from the government. These are not being used to investigate and curb acts of terror that may originate from outside India. Unless there are consistent judicial interventions and a larger public debate about the draconian nature of these laws, I am afraid they will remain in our statute books. All governments have a tendency to curb dissent and free speech, and without institutional protection, citizens will always be at risk.”