Many of India’s laws have become instruments of oppression rather than vehicles to regulate conduct. One such law is the Unlawful Activities (Prevention) Act, 1967 (UAPA). It is primarily meant to combat terror and proscribe known terrorist organisations. Parliament, in the latest amendment to UAPA in July 2019, chose to proscribe individuals and their activities by paving the way to name individuals as terrorists even though they may have no affiliation with any of the 36 terrorist organisations referred to in the First Schedule of the Act. The government seeks to justify this amendment consistent with its alleged desire to effectively deal with terrorists and terrorist organisations who threaten security. Unfortunately, the provisions of UAPA have, in the recent past, been used against those known to speak up for the oppressed, those who foster the cause of civil rights, and others who oppose the government and its policies.
The home minister, when moving the amendment, justified naming an individual as a terrorist if he or she “is a terrorist worker or takes part in any terrorist act”. He also said that those who “help to promote or prepare for terrorism should also be designated as a terrorist(s)” including individuals “who raise(s) money to promote terrorism”. It is true that a person who, as a member of a terrorist organisation, carries forward its agenda by participating in a terrorist act, must be dealt with in accordance with the provisions of UAPA.
However, we move into a somewhat grey zone when the State seeks to prosecute people by charging them with “preparing” for terrorism or “promoting” terrorism or raising money to “promote” terrorism. Unless a direct nexus is established between the acts of preparation or promotion of the terrorist act itself and the activity of a terrorist organisation, the Act will be used, and has been used, to silence those who oppose the State for its discriminatory policies and actions. The home minister further said that there are others who attempt to plant “terrorist literature” and infiltrate young minds with “terrorist theory”. What kind of literature is “terrorist literature”, what “theories” influence young minds, and what kind of “propaganda” is perceived to be a “terrorist act” are concepts ill-defined and easily misused.
So far, no individual has been named as a “terrorist” under UAPA. But many highly-regarded leaders of society, journalists, students who have opposed the Citizenship (Amendment) Act or CAA, and who were perceived by the State to hold views contrary to that of the government, are currently being investigated with intent to prosecute under UAPA.
The data available with the National Crime Records Bureau Report 2018 suggests that the conviction rate of those prosecuted under UAPA was as low as 14.5% in 2015 and as high as 49.3% in 2017. The total number of persons arrested in 2018 was 1,421; other relevant data includes those charge-sheeted (853), convicted (35), discharged (23) and acquitted (117). Clearly, the rate of conviction in 2018 was less than 30%. Of those convicted by the trial court, several may well be acquitted by the appellate court, making the rate of conviction abysmally low.
This is proof of the investigating authorities roping in named accused who are clearly not terrorists, making the law and procedures under it oppressive. Many of them are kept in custody for years before acquittal. An indication of the law’s indiscriminate misuse is reflected in the kind of people arrested under UAPA. Some disturbing examples among others are: Akhil Gogoi, a Right to Information Act activist; Safoora Zargar, a research scholar from Jamia Millia Islamia; Anand Teltumbde and Gautam Navlakha, both of whom have done seminal work in protecting India’s most vulnerable communities, namely the Dalits and Adivasis; Masrat Zahra, a 26-year-old internationally-acclaimed photojournalist; Umar Khalid for allegedly instigating the Delhi riots with his speeches at anti-CAA rallies; and Gowhar Geelani, a Kashmiri author and journalist, for his social media posts.
The reason why naming individuals is oppressive and violates citizens’ fundamental freedoms is because of the onerous provisions relating to bail. First, those being investigated can be kept in custody for 180 days pending filing of the charge-sheet. Bail is refused if the court, on perusal of the case diary or upon filing of a charge-sheet, is of the opinion that there are reasonable grounds for believing that the accusations against the person are prima facie true. It is the settled position in law that the accused cannot have access to the case diary. As far as the charge-sheet is concerned, the act of taking cognisance by the court is based on a prima facie belief that the accusations are true. At that stage, the accused is not heard by the court. This makes the law onerous and offensive, with no hope for the accused to access bail. Trials, too, take long. At the end of 2018, of the 2,008 cases, only 317 were sent to trial. Given the state of the law, an acquittal at the end of the trial means little.
The imbalance between fundamental freedoms and the larger interests of the State is heavily skewed against the citizen. The State uses the law as an instrument of oppression, making democracy its victim.
Kapil Sibal is a former Union Cabinet minister and senior Congress leader
The views expressed are personal
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