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  • Akanksha Pandey


Umar Khalid, a human rights activist and former student of Jawaharlal Nehru University was arrested by the Delhi Police under UAPA on the night of 13th September, for allegedly playing a role in the organisation of the Delhi riots which broke out in February 2020. He was arrested based on his involvement in the anti-CAA protests which took place all over the country since December 2019. He is the latest among various dissenting activists and students who were accused of being involved in the so-called conspiracy behind the Delhi riots and booked under UAPA. Others include SafooraZargar, DevanganaKalita, Natasha Narwal, Meenan Haider, Khalid Saifi and various others. Anand Teltumbde and Gautam Navlakha, human rights defenders, were surrendered to the NIA on 14th April 2020 under the UAPA on fabricated charges of having links to the riots in Bhima Koregaon village in January 2018. Nine other prominent activists such as Shoma Sen, Sudha Bharadwaj, Mahesh Raut, Surendra Gadling, Sudhir Dhawale, Vernon Gonsalves, Rona Wilson, Arun Ferreira and Varavara Rao were detained since 2018. This number increased to fifteen recently when DU professor Hany Babu and activists from the Kabir Kala Manch were added to the list.

The UAPA has also been used against Kashmiri journalists including Masrat Zahra and Gowhar Geelani. All of these people were arrested, branded as “terrorists”, mistreated by the authorities, denied basic human rights, denied bail, denied a free and fair trial, and denied the basic fundamental rights that come along with being a citizen of this “democratic” country, all before even being tried, let alone convicted of the charge against them.

The Unlawful Activities (Prevention) Act (UAPA) was a legislation introduced in 1967 aimed at “reasonably” restricting certain fundamental freedoms such as the freedom of speech, the right to assemble peacefully and the right to form associations under Article 19(1) of the Constitution in order to protect the integrity and sovereignty of India. This objective behind this act was to make laws and provisions for dealing with activities against the sovereignty and integrity of India. Although the UAPA existed since 1967, it is only in 2004 that the Parliament inserted a chapter in the act dedicated to punishing terrorist activities in the form of UAPA Amendment Act, 2004 (Chapter IV). After this, amendments to the law were made in 2008 and 2013 as well, however, not of a significant value.

There have been various amendments to the UAPA since 2004 to include and focus on moreterror-related offences and to make it more stringent in terms of rights of the accused.

After the repeal of laws such as the Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA), which were terror-specific legislations, the UAPA became the foremost anti-terror legislation, although, in the 2004 amendment, most of POTA’s provisions were re-incorporated into this act. According to the objectives of UAPA, the law punishes the funding, support and recruitment of “terrorist organisations”, membership of “terrorist organisations”, “unlawful activities” and “terrorist acts.”

The term “unlawful activities” refers to any action that supports, or intends to support secession, or “disclaims, questions, disrupts or is intended to disrupt India’s sovereignty and/or territorial integrity. The term “terrorist acts” refers to any violent acts that may threaten the security of India or strike terror in people as defined in Section 15 of the UAPA.

The UAPA provides extensive powers to the Central Government to designate organisations as terrorist organisations and also decide on the penalties for engaging in the activities performed by said organisations.

In 2019, the Parliament introduced an amendment to the UAPA. The most significant provision introduced in the amendment was that it made changes to Section 35 of the act, giving the Central Government the power to designate an individual as a “terrorist” under Schedule IV of the same. Before the amendment, the Central Government could only notify organisations as “terrorist organisations”.

There are many issues and problematic provisions in the 2019 Amendment of the UAPA which put a big question mark on its constitutionality. The first question is whether it clamps down on a citizen’s right to dissent, in turn, taking away and violating their fundamental right to freedom of speech under Article 19(1)(a).

The second thing that comes into question is whether the power to brand someone as a “terrorist” without a trial and without any judicial proceeding goes against criminal jurisprudence. Under the UAPA, there are draconian procedural provisions that allow the state to keep people in custody for long durations without bail. Section 43D(2) of the UAPA doubles the duration for which one can be kept in police custody and permits 90 days of judicial custody, even if the offence reported would under regular circumstances only allow up to 60 days of detention. In addition to this, if a person is charged under the UAPA, they cannot get anticipatory bail even if they are released by the police. This is due to Section 43D(5) of the legislation, which states that a court cannot release someone on bail if they are accused of “terror-related offences” and from any other materials, the case against them is prima facie true. The bail provision is extremely questionable as it allows imprisonment of the accused even without a conviction, without any solid proof. All that the prosecution, police or the central government needs to do is indicate a terror-related offence prima facie, or on the first appearance. Even if eventually, the person arrested is acquitted of the charges against them, the delay in executing the judicial procedure can delay the hearing of the case by several years after the arrest.

The next question that can be asked is if the 2019 Amendment to the UAPA is arbitrary and in violation of Article 21 of the Constitution. The answer to that in my opinion is yes, the UAPA grossly violates an individual’s fundamental right to life or personal liberty. It takes away one’s right to freedom of speech, right to movement, and right to a fair trial. The UAPA detains a person for extended periods of time without any proof, evidence or a conviction. The law allows the executive to brand a citizen as a “terrorist”, taking away their right to dignity.

Another problem with the 2019 Amendment to the UAPA is that it gives excessive powers to the National Investigation Agency (NIA), giving it relatively much more control over cases that would otherwise fall under the jurisdiction of the police in the respective state governments. This will weaken India’s federal structure by taking away the power of the state government and giving unprecedented power to the Central Government.

In the Lok Sabha, Amit Shah, the Minister of Home Affairs said, “An individual who helps to promote or prepare for terrorism should be designated as a terrorist. I believe an individual who raises money to promote terrorism should also be designated as a terrorist. And then there are those who attempt to plant terrorist literature and terrorist theory in the minds of the young. Sir, guns do not give rise to terrorism, the root of terrorism is the propaganda that is done to spread it.” Amit Shah’s argument is only superficially plausible. How does one define what constitutes as “terrorist literature and terrorist theory” when there is no universally agreed-upon definition of what or who “terror” or a “terrorist” is? Can someone be designated a “terrorist” if they own a copy of The Communist Manifesto or are reading about or teaching Maoism?

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In my opinion, the 2019 Amendment to the UAPA is completely arbitrary since there was already a provision under Chapter 4 of the UAPA before the 2019 Amendment which would enable the government to prosecute and then punish those individuals who had links with terrorist organisations or were involved in terror activities. The authorities had full legal power under the pre-2019 UAPA to arrest and prosecute an individual. If the authorities had sufficient evidence, the trial court would convict the individual and then send them to jail. The NIA could convict the individual and then get them arrested, so what was the need to make an amendment which would give the Central Government the power to label an individual as a “terrorist” even before a fair trial?

This draconian legislation puts India’s democracy under a grave threat, providing the current autocratic Central Government with immense power to stifle any and all forms of dissent, criticism, and questioning. It gives the government an opportunity to reject taking any sort of accountability whatsoever. This law quashes down on citizens’ right to dissent and their right to freedom of speech, which are important markers for a democracy and is therefore, in every way opposite to the very spirit of democracy. There have been various examples and cases which clearly show the arbitrary manner in which this law is being invoked on journalists, students, lawyers, academicians and activists who question and demand accountability from the government.

While combatting terrorism is an internationally important goal, this law is set to pursue it at the cost of violating individuals’ human rights. The International Convention on Civil and Political Rights (ICCPR) requires that presumption of innocence is a universal human rights principle. The UAPA, 2019 clearly contradicts this and puts the burden of gathering proof of innocence on the accused. This is in violation of human rights as stated in the ICCPR, to which India is a party. In May 2020, United Nations Special Rapporteurs wrote to the Government of India, expressing their concerns about the UAPA, 2019. The statement says that the amended UAPA, 2019, comes in direct conflict with several articles of the Universal Declaration of Human Rights (UDHR).

The statement also talks about how the Government of India goes against the various resolutions of the United Nations Security Council that require nations to make laws against terrorism without breaching the obligations of international law.

The Unlawful Activities (Prevention) Act 2019 reflects the laws made by colonial rulers to quash the freedom movement under the guise of maintaining public order.

Keeping in mind what our respected Prime Minister, Shri Narendra Modi said in 2014 after a month in office, “Our democracy will not sustain if we can’t guarantee freedom of speech and expression,” the way citizens are being silenced is rather ironic.

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