This Article is written by Gyan Darshan Tripathi, Shashank Shukla & Vanshita Gupta, students of Dr Ram Manohar Lohiya National Law University, Lucknow, UP

Introduction

“Liberty may be endangered by the abuse of liberty, but also by the abuse of power.”  – James Madison

Ever since her independence, India has seen considerable conflicts with neighbouring countries and several internal struggles owing to the presence of certain insurgent groups within- putting her national security under constant threat. And all governments throughout Indian history have tried to curb threats to national security one way or the other- ways which have often proven to be a threat to India’s own citizens rather than protecting her from security threats. One such ‘way’ was the Unlawful Activities (Prevention) Act, 1967 (hereinafter UAPA) and the succeeding amendments that were made to this Act. Detailed study of the Act itself and its usage after the enactment tells us only one story- that the UAPA, in fact, is nothing but a trojan horse- something which seems harmless at first but is ultimately malicious and threatening.

Since its very enactment, the UAPA has been invoked several times to arrest people who posed a ‘threat’ to national security. But what is crucial to notice here is that more often than not, these arrested individuals, in reality, were not terrorists- they were dissenters, minorities, and activists- thus proving that the UAPA often protects the government and not the country. And that happens at the cost of our fellow citizens.

This article analyses the UAPA in detail, right from its origin to its enactment and use. It also analyses how an Act that was meant to be a protective shield for India turned into a hostile sword against her citizens.

Origin and Evolution of UAPA

In 1962, the National Integration Council appointed a Committee on National Integration and Regionalisation which advocated for few reasonable restrictions to be imposed on the citizens to maintain the national sovereignty and integrity. Consequently, the Constitution (Sixteenth Amendment) Act, 1963 was passed which imposed certain limits on Fundamental Rights to Speech and Expression, to form Associations and Unions, and to assemble peacefully. 

In pursuance of implementing these restrictions, the UAPA bill was introduced and enacted in 1967. 

Key Provisions of UAPA

The UAPA over the years has seen many amendments which make it one of the most draconian laws of independent India:-

The 1967 Act:- The original Act gave power to the Indian government to declare organisations ‘unlawful’ if the former feels that the latter is intended to disrupt the sovereignty and integrity of India. The term ‘unlawful’ was very vaguely defined, thus giving unlimited power to the government to declare organisations as ‘unlawful’ and scrutinise their members. The only safeguard present was that the government had to give proper reasoning and set up a tribunal to determine sufficient cause for the ban.

The 2004 Amendment:- The amendment in 2004 increased the ambit of UAPA to include ‘Terrorist Acts’. Due to certain provisions, it seemed like a reinvention of the controversial POTA Act, 2001. These included a vague definition of ‘terrorist acts’ and removing the safeguards of the original Act. This meant that any organisation could be banned by the government without proper reasoning or setting up tribunals.

The 2008 Amendment:- After the 26/11 attacks in Mumbai, the amendment introduced broadened the definition of a ‘Terrorist Act’, permitted to arrest a person by “anyone from a designated authority” based on “personal belief” or “anything which may furnish evidence of commission” of a crime under UAPA. It also increased the span of police custody, restrictions on bail (if the judge the allegations against the accused are prima facie true), and incarceration without chargesheet.

The 2019 Amendment:- This amendment allowed the government to declare anyone a ‘terrorist’ merely on suspicion. It also empowered NIA officials to conduct raids and seize property anywhere in India, shifted the burden of proof on the accused rather than the prosecution, and most importantly- allowed the detention of the accused up to two years without the government having to prove the crime.

UAPA as a Weapon to Curb Dissent

Over time, UAPA is being increasingly used to arrest intellectuals, minority activists, and critics of the government. Some of the notable cases are:-

• UAPA under Congress Regime

Even though it’s the present BJP-led government that is widely criticized for misusing UAPA (and rightly so), the previous Congress-led regimes weren’t innocent either. Apart from being responsible for introducing UAPA in 1967 (and also two of its most controversial amendments in the years 2004 and 2008), Congress didn’t shy away from misusing UAPA either.

The Congress government had arrested activists Arun Ferreira, Kobad Ghandy, and Gaur Chakraborty for allegedly leading the communication wing of the banned CPI (M) party- all of them being acquitted after years of prison because the State failed to provide evidence.  The most draconian arrest was of 127 Indian Muslims in Gujarat for allegedly having links with SIMI, an organisation that was banned by the Congress-led government after the 9/11 attacks in the USA. These individuals were acquitted after 19 long years of prison- with five of them dying during the trial.

• UAPA in Bhima-Koregaon Case

After the BJP-led government came into power, usage of UAPA increased manifold. One such incident of mass arrests was the Bhima-Koregaon case- when the government arrested 16 individuals under UAPA- for allegedly having links with CPI (M), allegedly inciting violence in Bhima-Koregaon on January 1, 2018, and for allegedly plotting to assassinate Prime Minister Modi. All these individuals still languish in jails to date- awaiting trial and being denied bail. One such individual was Father Stan Swamy, who succumbed inside the walls of Taloja Jail- after his bail was repeatedly denied. The irony here is that bail applications of these individuals keep on getting denied because the allegations against them are as serious as plotting to kill the Prime Minister- but even after three years, the trial has not even begun against these ‘heinous conspirators’.

• UAPA in Anti-CAA Protests and Delhi Riots

The Anti-CAA protests and the Delhi Riots are other examples of mass arrests using UAPA. Those arrested included students from Jamia and JNU, minority activists, and social activists- most of them on the allegations that they conspired to incite communal violence, which then resulted in the North-East Delhi Riots. Those arrested included Safoora Zargar- a pregnant student activist and those denied bails included Natasha Narwal- a Pinjra Tod activist who couldn’t even meet her father one last time before he died (she was only given bail afterwards to perform his last rites). At this point, any sane mind would realise that arrests under UAPA are not for seeking justice, but these arrests are for suppressing the voice of dissent.

• UAPA against Journalists

Needless to say, when a draconian regime comes after activists and students- they won’t spare journalists either. We all know about Siddique Kappan, a journalist from Kerala who was arrested on his way to cover the rape and murder of a Dalit woman in Hathras. The charges against him included links with PFI (an extremist Islamist organisation) and the allegation that he was going to Hathras to “incite communal tension”. To date, Kappan languishes in jail. Similar cases can be seen throughout India, especially in Kashmir- where numerous journalists- the only voice of dissent left in the state- were charged under the stringent UAPA and continue to remain in jails. We all know that a democracy can only function on the shoulders of journalists who can express their opinion freely- especially when that opinion is one of dissent.

Statistics

As per Home Ministry’s data shared in Parliament earlier this year, the year 2019 has seen a 72% rise in UAPA cases as compared to 2015. As per NCRB data- together with cases pending from previous years, the number of UAPA cases in India was 5,134 in 2019.

Government data also shows that between 2016 and 2019 only 2.2% of those arrested through UAPA were convicted.

The Way Forward- What can be Done?

As the use of UAPA increases with time, and when almost all of the people arrested are critics of the government- safeguards must be placed to protect ideals of liberty and human rights in our country. And which is the one institution that is meant to protect these ideals? The judiciary.

Though the increase in usage of UAPA has coincided with the lack of concern shown by the courts, it is the need of this very minute that the judiciary steps up and take suo-moto cognizance of the malicious use of UAPA by the government to stifle all forms of dissent.

Another thing required is special UAPA courts- so that the process of deciding on bail petitions and beginning of trials can be sped up.

As for the Act itself, the government must repeal the draconian provisions of UAPA so that it can actually protect India’s biggest concern- her citizens.

Conclusion

Thus, it is crystal clear that UAPA has proved to be more of a threat than a safeguard. And let us also not assume that the intention of the governments behind bringing this Act and its subsequent amendments was to safeguard India against threats. No, the intention behind the Act was to use it as a mechanism for curbing human rights, liberty and dissent. The intention was to attack minorities, and the intention was to threaten journalists and activists. And none of the ruling parties of this country have proved otherwise.

In a free democracy, there should be no place for the misuse of a law like UAPA. And even if it is indeed misused- it should be the duty of the judiciary, the opposition, and the citizens of a democracy (especially the majority community) to stand against the government and stand with their people who are unjustly exploited by it. Sadly, over time, our democracy is failing on even these fronts- only making one wonder how long will India hold its status of a ‘free democracy’. As it was rightly said- “Liberty has never come from the government. Liberty has always come from the subjects of it. The history of liberty is a history of resistance.”  -Woodrow Wilson

https://lawmentor.in/2022/03/19/uapa-protection-from-threats-or-dissent/