UAPA: The Draconian Reality

Jamia Millia Islamia student Asif Iqbal Tanha accompanied by Jawaharlal Nehru University student activists Devangana Kalita and Natasha Narwal, stepped out of Tihar Jail amidst massive applause & sloganeering after being imprisoned for more than a year on June 17th, 2021. Safoora Zargar, a 27-year-old pregnant Jamia Millia Islamia student, was granted bail on 23rd June 2020 with multiple conditions only after the police withdrew its objections on “humanitarian grounds”. A National Investigation Agency (NIA) court on 1st July 2021 acquitted Assam activist and Sibsagar MLA Akhil Gogoi of all charges and set him free. The common component in these incidents is widely known but profoundly played down. UAPA is the sole driving force behind these arrests. These citizens are only a portion of the aggregate incarcerated population who were fortunate enough to get bail.

The Unlawful Activities (Prevention) Act 1967 (UAPA) was enacted as an anti-terrorism law to deter unlawful activities associations that threaten the sovereignty and integrity of India. Over the years, it has been revised for efficient administration and to serve the chief intent of the act, thus becoming more dangerous over time. In 2004, the Parliament inserted a committed Chapter towards penalising terrorist actions. Consequently, amendments were brought into the legislation in 2008 and 2013 as well.

The Parliament on 2nd August 2019 passed The Unlawful Activities (Prevention) Amendment Act, 2019. It, however, is deemed to be perhaps the most negatively significant development. Before the alteration, only entities could be classified as terrorists. Among the many amendments, the amendment to Section 35 gave the Government overarching powers to categorise individuals as terrorists if it holds that the person is involved in terrorism.

UAPA is dubbed as the ‘Modern-day Draconian Law‘. Among the various severe provisions lies the death penalty and life imprisonment as the highest punishments. Under UAPA, both Indian and foreign citizens can be charged. It will apply to the offenders in the same manner, even if the crime is committed in a foreign land. Additionally, the investigating agency can file a charge sheet in a maximum of 180 days after the arrests and, the duration can be prolonged further after intimating the court.

Before UAPA was remodelled and redesigned, terrorist activities were fundamentally administered under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and Prevention of Terrorism Act, 2002 (POTA) that now stand repealed. Over the years, many unsuccessful objections had been made, constructed against the constitutional validity of both TADA and POTA. Both laws were dealt with by legislative actions after widespread allegations of abuse.

As per the data presented by the Ministry of Home Affairs (MHA) in the Lok Sabha, no fewer than 1948 people were incarcerated in 1226 cases filed across the nation in 2019 alone. UAPA, thus undoubtedly, has grown into a household phrase for all who remain conscious of the daily happenings. The data further adds that there has been over a 72% increase in the number of people arrested under the anti-terror law UAPA (Unlawful Activities [Prevention] Act) in 2019 compared to 2015.

What seems to be ironic is that Amit Shah, the Home Minister of the world’s largest democracy, during a parliamentary debate on UAPA, went on record to say that “The only purpose of this law is to root out terrorism”. Mr Shah also stressed the necessity to designate individuals as terrorists to root out terrorism. The ground reality suggests otherwise.

Instead of terrorists, UAPA has been increasingly used to clamp down on dissent. Section 15 comes very handily in the same. It establishes a “terrorist act” as any act committed with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country. The term likely to threaten is notably vague and is subject to diverse interpretations. Therefore, the resultant interpretations are open to manipulations thus, discriminatory. Additionally, an independent authority is tasked with the duty to study the evidence collected by the police and submit a report determining if the sections of UAPA are attracted or not. The fascinating point is that the committee is delegated by the Central Government only.

Getting bail is challenging because one has to explain that prima facie, there is no case. The burden of proof that usually falls on the police, under UAPA, falls on the person accused to prove his innocence. It grossly infringes the principle of innocent until proven guilty. Further, the law violates the International Covenant on Civil and Political Rights, 1967. What makes it more distressing is that a response by the government in the Lok Sabha revealed that only 2.2 % of cases recorded under the UAPA between 2016-2019 concluded in convictions by the court.

Laws like TADA and POTA had a sunset clause which UAPA does not have. Under a sunset provision, a law will cease to exist after a fixed point of time unless renewed by the Parliament. The UAPA is a permanent statute. Both TADA and POTA, because of the sunset clause, had a time limit of two years, after which they had to be transferred to the Parliament for a new lease of life.

The Delhi High Court, while granting bail to Narwal, Kalita and Tanha remarked, “the more stringent a penal provision, the more strictly it must be construed”. The Court further added, “In its anxiety to suppress dissent, in the mind of the state, the thin line between the constitutionally guaranteed right to dissent and terrorism was blurred. If the same mindset continues, it will be a sad day for democracy.”

When such legislations horrendously violate and deprive the citizens of their rights by massively deviating from the central objectives, it becomes the responsibility and obligation of the Supreme Court to step in and restore confidence in democracy. Judicial intervention is the need of the hour unless those in power wake up and realise the irreversible injuries their actions have inflicted on the Republic of India.

Gaurav Chakraborty is pursuing Economics from Jamia Millia Islamia.

Edited by: Malaika M Khan