UAPA: Terror and the law

It is time to question intensely the provisions of the draconian UAPA that made it possible for the state to incarcerate Fr Stan Swamy from October 2020 until his death and for the NIA to keep opposing his bail plea without in all that time questioning him even once.

Akhil Gogoi, MLA from Sibsagar, after a special National Investigation Agency court discharged him in the last remaining case that had been slapped on him under the UAPA, in Guwahati on July 1. He was arrested in December 2019 for his role in anti-CAA protests and alleged nexus with Maoists.

Cataclysmic moments, even those that could have been predicted, are known to prise open the clutches of rigid unquestioning and herald significant shifts, if not change. The death in custody of the 84-year-old Jesuit priest Fr Stan Swamy, a dedicated human rights defender for decades, a death that was enabled by a particular venality exhibited by the National Investigation Agency (NIA) and Maharashtra’s jail authorities, has compelled a sharp look at India’s Unlawful Activities (Prevention) Act. The UAPA is a 1960s law which, after hasty amendments made in 2004, 2008, 2012 and 2019, is today India’s draconian all-pervasive counter-terrorism law that has converted jurisprudence that ought (at best) to be meant for “extraordinary” circumstances into one for the “ordinary”.

In the 1980s and then in the 2000s, two other laws were brought in to tackle “terror crimes”. The first was the Terrorist Affected Areas (Special Courts) Act, 1985, later modified into the 1985 Terrorist & Disruptive activities (Prevention) Act, 1985, which lapsed in 1995 after vehement all-round protests, including a campaign through letters to all Members of Parliament by the then chairperson of the National Human Rights Commission (NHRC), Justice J.S. Verma. Justice Verma pointed out that the 76,000 undertrials booked under the law’s draconian provisions had little or nothing to do with “crimes related to national security or terrorism”. (Gujarat reported 20,000 TADA cases, though it had experienced no “terror crimes”; the draconian provisions were used to book protesters, those questioning government policies, especially those protesting against the General Agreement on Tariffs and Trade and the World Trade Organisation.)

The second was the 2001 Prevention of Terrorism Ordinance, later passed in 2002 as POTA in a joint session of Parliament. The legislative impulses (read outrage) that led to these laws being passed arose out of, first, the 1984 Air India hijack and then the 2001 attack on India’s Parliament. In 2008, after the Mumbai terror attack, when the second set of draconian amendments were introduced to the UAPA (1967) by then United Progressive Alliance government, the only parties that opposed the move were the Communist Party of India (CPI), the Communist Party of India (Marxist), the Janata Dal (JD), the All India Anna Dravida Munnetra Kazhagam (AIADMK), the Biju Janata Dal (BJD) and the All-India Majlis-e-Ittehadul Muslimeen (AIMIM).

The first move to bring in the crime of “terror” into everyday, normal criminal law happened in 2004, on the very day that the electoral promise to repeal POTA was fulfilled. Both TADA and POTA showed a record of selective, targeted abuse and even misuse by the state and law enforcement agencies against minority groups of different definitions who stood in opposition to the policies of the government (Adivasis or workers protesting against economic policies or Muslims before and after the demolition of the Babri Masjid on December 6, 1992, for example). Yet the Indian government’s amendments to the UAPA in 2004 and 2008 (especially in the first instance) borrowed heavily from the provisions of these anti-terror laws, rather than making any attempt to forge a new approach. The 2019 amendment by the Modi government in its second term allowed individuals to be labelled as terrorists.

The result is an all-encompassing law that gives overarching powers to the police/agencies with no protection or safeguards for the people. At a fundamental level, arguably, the UAPA violates Articles 14, 19, 20(3), 21 and 22 of the Constitution of India, besides violating Articles 10, 11 and 12 of the Universal Declaration of Human Rights Act, 1948, Article 6 of the European Convention on Human Rights, and Article 14 of the International Covenant on Civil and Political Rights. It also violates Sections 24-26 of the Indian Evidence Act.

What is an act of terror?

Who or what defines an act of terror and/or terrorism, and what kind of definition of organised and pre-meditated violence will fit the definition? In the absence of narrow and objective criteria, it is more than possible that a politically expedient kind of espousal of terror results in actual perpetrators escaping not just law enforcement clutches but the net altogether. Internationally, according to the Maryland GTD (Global Terrorism Database), Maryland University, United States, a 2004-2014 comparison of “terrorist attacks in India based on the “Ideology of Perpetrators” delineates, among 5,042 attacks, 42 per cent as left-wing extremism, 22 as per cent separatism, 35 per cent as miscellaneous or unknown extremism and barely 1 per cent as Islamic. Presumably, violent and extremist acts in the name of Hindutva/ Hindu rashtra fall under the “miscellaneous” category.

Schedule I of the UAPA lists as banned organisations 16+2 Islamist organisations and 15 secessionist organisations and left-wing extremist organisations. Among the total that at present accounts for 53 are also nine individuals from allegedly Sikh secessionist organisations and another 18 from allegedly Islamist organisations. None of the organisations charge-sheeted in the Malegaon bomb blast case (2006), the Hyderabad Mecca Masjid blast case (2007), the Samjhauta Express blast case (2007), the Ajmer bomb blast case (2007), the Panvel bomb blast (2008) case, and the auditorium bomb blast case (2012) is mentioned. Leave alone the outfits behind mob lynchings and other instances of mass-targeted terror who/which have been neither banned nor declared as unlawful organisations or terrorist organisations.

Key features of TADA and POTA (now the UAPA too) include the admissibility of confessions before police officers as evidence, a provision that not only contravenes Section 26 of the Indian Evidence Act but is an open invitation to skip investigation and simply resort to torture; the extension of remand (pre-charge detention) to as many as 180 days and the statutory and constitutional requirement of production before a magistrate within 24 hours is not required; the time given to the agency to file the charge sheet is longer; and worst of all, the presumption of innocence—which is fundamental to Indian criminal law and also underlined in the Constitution (Articles 20 and 22)—is turned on its head, making it impossible for an accused person to either effectively counter charges or even get bail.

The restriction on bail provisions under Section 43 D (5) of the UAPA makes it impossible for any person seeking regular bail to do so before or even after the charge sheet is filed. This section existed before as Section 20 (8) under TADA and then Section 49(7) in POTA. Under the UAPA, despite provisions for bail that exist in Indian criminal law, an exception is made under Section 43 D (5): bail is an impossibility unless “the public prosecutor is heard” and if “the court, after perusal of the case diary, is of the opinion that there are reasonable grounds for believing the accusation against person is prima facie true”. This section, which turns Indian criminal law on its head, received the untenable judicial stamp of approval in April 2019 in National Investigation Agency vs Zahoor Ahmad Shah Watali , which has adversely impacted the accepted doctrine on bail, holding essentially that the accused must remain in custody throughout the period of the trial because the courts must assume every allegation made in the first information report (FIR) to be correct.

The world over, circumstances resulting from terror attacks often lead to aggressive measures by the state (executive and legislature) to pass laws that remit unchecked powers to law enforcement agencies, give the go-by to time-tested measures and procedures, the checks and balances that prevent the crass abuse of power. India is no exception. But while other liberal democracies have passed such laws—and even recorded draconian unlegislated abuse like those which took place at Guantanamo Bay Detention Camp (offshore abuse by the United States)—Canada, the United Kingdom and Australia have in-built provisions like a sunset clause for repeal once the circumstances needed for such a law have passed, and also provisions for judicial or parliamentary reviews of cases booked under such laws. POTA did contain a provision for a POTA Review Committee, but the amended UAPA does not pass any of these tests. POTA provided that the review committees constituted by the government shall review all cases registered under POTA by September 20, 2005. In June 2005, the POTA review committee reported that there were 11,384 persons wrongfully charged under POTA and should instead be charged under regular law.

Terms of definition too broad

Worse, the 2008 amendment to the UAPA defines terrorism in very broad terms. The definition of a “terrorist act”, as per the 2008 amendment, is virtually identical to the POTA provision with a clause that widens the scope for misuse. “(a) The physical element ( actus reus ): a terrorist act is one involving the use of ‘bombs, dynamite… other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances… of a hazardous nature or by any other means of whatever nature ” (emphasis added). This expanded last phrase is problematic because it means any physical act could be deemed a terrorist act if the government is able to satisfy the very low burden-of-proof threshold in order to establish that the act is likely to cause terror in the people. For example, if Indian sanitation workers commence a protest/industrial action, it can be argued that they are committing a terrorist act because it is “likely to strike terror in the people” who would have limited access to emergency assistance, and that the action is likely to cause “disruption [to]… services essential to the life of the community” by using “means of whatever nature”, thus satisfying the Section 15 definition.

This is just one example that demonstrates the unacceptably broad nature of the definition of terrorism under the amended UAPA. In 2019, an already draconian law was made worse by one more amendment, combined with an amendment to the 2008 National Investigation Agency Act that empowered or weaponised a central agency affecting India’s federal structure. Through this 2019 amendment to the NIA Act, the right to challenge interlocutory orders by the courts under the criminal procedure code and Article 226 of the Constitution is denied. Worse, those UAPA cases that are “taken over” by the NIA are not open to public scrutiny. Law and order being a State subject (Schedule VII, List II, Entry 2), here is one more instance of the federal structure of the Indian state and society being severely devastated. Under Section 6(6), if the Centre deems fit, it shall direct the State government to transfer all relevant documents of a particular case to the agency and call for a stop of the investigation by the State machinery. A recent example of the misuse of the NIA was the summons issued to the farmers protesting outside Delhi’s borders.

The NIA Schedule now covers offences such as human trafficking, offences relating to counterfeit currency or bank notes, manufacture or sale of prohibited arms, cyber-terrorism and offences under the Explosive Substances Act, 1908. Originally, the NIA Schedule covered the Atomic Energy Act and the Unlawful Activities Prevention Act 1967 only.

UAPA cases against anti-CAA protesters

We have already seen gross abuse in the 23 cases under the UAPA slapped on student leaders protesting against the unconstitutional Citizenship (Amendment) Act, 2019, in Delhi, Uttar Pradesh and Assam. Only three of those booked in UAPA cases in Delhi are out on bail. The recently elected MLA of the Rajbor Dal, Akhil Gogoi, was acquitted and discharged in two UAPA cases. These are the cases that are visible in the public domain. There are thousands of others.

The gargantuan nature of the task of getting bail is shamefully obvious in not just the Bhima Koregaon case, the Akhil Gogoi case, the recent Andhra, Telangana arrests, the Hathras rape case, the Delhi CAA-NRC cases, the Reliance workers cases and the Jharkhand Adivasi cases, but also in a multitude of others: Dr Binayak Sen, Soni Sori, Seema Azad, Imran Kirmani, Ghulam Rasool, Angela Sontakke and Ziaurahman and other renowned activists have faced incarceration for long periods not because of any involvement in terror acts but because of the draconian provisions of the UAPA. Father Stan Swamy had petitioned the Jharkand High Court in 2017 over the incarceration of close to 4,000 tribal people (Adivasis) in Jharkand’s jails.

With all its inherent and draconian powers—minus either a sunset clause for repeal or any provision for review—here is a law that is neither just, transparent, accountable nor equitable. This defies the very basic requirement of any statute in a democracy where the sovereignty lies with the people. It is a weaponised instrument, not a just law, that is today being used against the Indian people not to fight terror.

The UAPA is not the only law that unconstitutionally curbs fundamental freedoms, denying natural justice. After Independence, the Government of India has periodically enacted laws like the 1950 Preventive Detention Act, the 1958 Armed Forces Special Powers Act, the 1972 Maintenance of Internal Security Act (MISA) (repealed), the 1980 National Security Act, and the Jammu and Kashmir Armed Forces Special Powers Act. Not to be outdone, State governments have also enacted laws with several draconian provisions—the Maharashtra Control of Organised Crime Act (1999), the KCOCA (2001), the Chhattisgarh Special Public Safety Act (2005), and the Gujarat Control of Terrorism & Organised Crime Act (2019). A litany of abuse and long periods of pre-charge detention mark the history of these laws.

Before Independence, the 1908 Criminal Law Amendment Act (Section 16) bestowed on the British government the power to declare an association unlawful and punish its members; the 1919 Anarchical Revolutionary Crime Act (Rowlatt Act), enacted to curb the growing nationalistic upsurge, bestowed on the British government the power to jail without trial anyone suspected of plotting or overthrowing the government. The Act gave unjust rights to the police to detain any person for two years without trial. Thereafter, the 1942 Armed Forces Special Ordinance Act, legislated at the time of the Quit India Movement, provided special powers to certain officers of the armed forces to catch and kill anyone. If the martyrdom of Father Stan Swamy is to lead to any substantive change, the political opposition in the country musts wake up to respond substantially to this history of oppression and abuse. Laws on the books of a 21st century India need to be imbibed with justice and equity, not unchecked power of the state.

This regime does not share data with any degree of openness or alacrity. However, a reply to an unstarred question in the Lok Sabha on March 9, 2021, produced some data on cases registered and persons arrested under the UAPA: 498 cases in Uttar Pradesh, 386 cases in Manipur, 308 cases in Tamil Nadu, 227 in Jammu and Kashmir, 202 cases in Jharkand and 112 cases in Assam. Ironically, these figures may not tell the whole story. Apart from the UAPA, the 2019 amendment to the NIA Act (empowering the highly centralised agency to investigate crimes within its Schedules that are “other” crimes) has meant that in hundreds if not thousands of cases, normal charges are slapped on individuals along with charges under the draconian UAPA. If a particular State has not shared information about these multiple cases (for instance where UAPA sections are invoked among others) then it is likely that the figures of actual UAPA cases are much higher.

The human face of the tragedy

Now for the human face of the tragedy. Even as the death in custody of Fr Stan Swamy haunts the nation and has created an outcry against laws that curb liberty, statutes that are inherently unjust, giving too much power to the police and executive, we must recall with some sobriety the long history of abuse of such laws.

On May 16, 2014, the day that Narendra Modi swept to power in his first term as Prime Minister, six persons, including Mufti Abdul Qayyum Husain Mansuri from Ahmedabad, were acquitted of any involvement in the 2002 Akshardham terror attack. A POTA court in 2006 had convicted them, and the Gujarat High Court upheld the conviction in 2010. After spending 11 years in jail, an incarceration that included bouts of brutal torture by, among others, D. Vanjara, the rogue policeman from Gujarat, the Mufti penned his anguished memoirs first in Urdu, Gyarah Saal Salokhon Ke Peechen (Eleven Years Behind Bars), and then English, I am a Mufti And I Am not a Terrorist .

Eloquent paragraphs

Akshardham judgement: paragraph 131: “ ... take note of the perversity in considering this case at various stages, right from investigation level to the granting of sanction by the State Government .... We being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us.”

Para 136: “Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which is resulted in their conviction and subsequent sentencing.”

Such verdicts no doubt reaffirm each citizen’s faith in the judiciary. However, there is a cruel twist to the tale. Such tales of trauma and injustice that deserve fair recompense and prosecution of the perpetrators, prosecution of malicious and erring officials, stop short at delivering complete justice. Section 49 of UAPA 2004—like similar sections in POTA and TADA—protects officers from any prosecution or legal proceeding for acts committed in good faith or in pursuance of the Act! Lawmakers in 2004, while amending the UAPA and regularising a draconian statute, effectively protected the large number of officials and the bureaucracy who are prone to take power in their hands and abuse it.

More recently, Mumbai-based Wahid Shaikh, wrongfully accused in the 2006 Mumbai train blasts case, published a 498-page book, Innocent Prisoners ( Begunah Quaidi ), an account that should put the Indian system, courts, law enforcement, even the media, to shame. Thus far, it has barely created a ripple on the mainstream intellectual landscape. Wahid had been incarcerated under the MCOCA and brutally tortured. While he walks free, his fellow accused have been sentenced to life and even death. Formerly a school teacher, Wahid Shaikh has made it his life’s mission to legally educate his compatriots on how to face torture, false charges and incarceration. It is an alternative criminal jurisprudence that is being crafted by the former accused, a victim.

There are other complex issues in this tale, that is, Fr Stan’s tale. Poor health, hygiene and sanitation conditions, obduracy and lies perpetuated before the court both by the NIA and the jail authorities made the last two months of his life worse than they need have been. Maharashtra’s prisons, infested with the COVID-19 disease, escape any regular monitoring or scrutiny. While august amendments, including the one in 2016 to the Prison Manual, and Supreme Court judgments before and thereafter require robust monitoring mechanisms to ensure that dignity of existence is the fair due of undertrials and convicts, a complete abdication of any such system has rendered our jails infested with disease, violence and discrimination. If indeed a society is weighed by the condition of its prisons, India’s dark, opaque spaces paint a poor and bleak picture.

Teesta Setalvad is a journalist and rights activist, secretary of Citizens for Justice and Peace, www.cjp.org.in. The CJP’s legal research team and associate lawyers gave some invaluable inputs for this article.