Legal experts call for a repeal of UAPA over misuse and rights violations

Senior advocates and rights activists raise concerns over the draconian application of UAPA, arbitrary arrests, and denial of constitutional rights.

Senior Advocate of Supreme Court Colin Gonsalves, addressing the media in New Delhi. | Photo Credit: SUSHIL KUMAR VERMA

If the present government comes back to power, “we will see the use of terrorism legislation in a manner that we’ve never seen before” said senior advocate of the Supreme Court, Colin Gonsalves, the founder of the Human Rights Law Network. “We’re at a very tenuous period of our history, a very dangerous period,” he added. He was speaking at a discussion on “UAPA in Delhi: Punishment without Trial” in Delhi, soon after the release of Prabir Purkayastha, the founder and editor of NewsClick, which was ordered by the Supreme Court on May 15; Purkayastha was incarcerated for seven months under the Unlawful Activities Prevention Act (UAPA). No substantial grounds were provided for the detention of Purkayastha, he said.

Gonsalves spoke about several such cases where individuals were eventually released due to the lack of evidence supporting the terrorism charges: Gautam Navlakha, Pinjra Tod members, Kishorchandra Wangkhem, Vernon Gonsalves, and G.N. Saibaba. He underscored the need for more such “independent and free-standing” decisions by smaller courts too.

A politicised judiciary

In many cases, Gonsalves noted, the prosecution often claimed that the chargesheet was too voluminous, such as in the case of activist Umar Khalid. He pointed out that securing bail under the UAPA has been made almost impossible due to stringent provisions of the Act and precedents set by an increasingly politicised judiciary.

Senior advocate Sanjay Parikh criticised the arbitrary application of UAPA, noting that often there is no clear connection between the accused and actual unlawful activities. He argued that this abuse of power under UAPA infringed on the individual’s Constitutional rights.

Parikh discussed the stringent bail provisions under UAPA, drawing a parallel with the Terrorists and Disruptive Activities (Prevention) Act (TADA). Much like TADA, UAPA places a burden on the accused rather than the prosecution. He referenced a report by the People’s Union for Civil Liberties, according to which the per-case conviction rate under the UAPA was merely 27.57 per cent compared to 49.67 per cent in IPC cases.

Under the United Progressive Alliance regime (2009 to 2014) 69 UAPA cases were registered, while under the National Democratic Alliance (2014 to continuing), 288 UAPA cases were registered, he said. Parikh added that those wrongful incarcerated should be compensated, and soon.

The ‘conspirators’

Shahrukh Alam, a Supreme Court advocate juxtaposed the ongoing US student protests with those in India. She argued that despite the weaponisation of police in the US, most protestors do not face serious charges, whereas in India, the opposite is true. Alam spoke about Khalid Saifi and Asif Iqbal Tanha, who were booked under the UAPA as alleged “conspirators” of the 2020 Delhi riots.

“The prosecution said, “we are opposing his bail because he used to go to masjids and talk to imams to mobilise them against the Citizenship (Amendment) Act (CAA)“. Is that not his democratic right? Similarly in Umar Khalid’s case, the prosecution insisted that “this man is giving a vocabulary to Muslims to articulate their grievances”. How is that a problem, that’s his democratic right.”

“CAA tried to say to Muslims that you are very safe in your cocoons and you may be a citizen of India, but not for very long. It is telling Muslims you can’t mobilise; we judge your politics, and we will label it as a terror act,” said Alam.

Nandini Sundar, a professor at the Delhi School of Economics and a human rights activist, renowned for her work in Chhattisgarh, said, “Every week, people are picked up from their villages. This has intensified in the last five and half months since the BJP government took charge. Over 100 people have been killed in so-called “encounters” with the Naxals.” Most of these encounters are fake, she added. “You see, no policemen are injured in these “encounters”. This is a dead giveaway on how most of them are fake.”

The discussion was organised by Janhastakshep, “a campaign against fascist designs”.

With inputs from Vitasta Kaul and Vedaant Lakhera