In recent years, scores of human rights activists, lawyers, students, teachers, and journalists in India have been charged under a stringent anti-terrorism law, the Unlawful Activities Prevention Act (UAPA). Some of them were imprisoned for years before they were finally declared innocent. Under UAPA, investigative agencies have up to 180 days to file a charge sheet: this means an accused is allowed to file a bail request, which remains very difficult to attain, only after six months of incarceration. However, the conviction rate under UAPA is extremely low: according to the Union home ministry’s data, only 2.2 per cent of cases registered under UAPA between 2016 and 2019 finally resulted in convictions. Assamese peasant leader Akhil Gogoi was recently released after having been arrested in December 2019 and charged with sedition, criminal conspiracy, and under UAPA, for allegedly supporting a terrorist organization.
Along with the sedition law (a British-era inheritance) and the National Security Act, UAPA is often referred to as a draconian law and it is increasingly being used to silence critics and dissent. UAPA has been in force since 1967 and it has undergone several amendments, the latest in 2019, under the leadership of Narendra Modi. In 2004, in the wake of a series of terrorist attacks in India, the parliament introduced a provision expressly punishing terrorist activities. In 2008, after the Mumbai attacks, it was further strengthened. The most recent amendment, made in 2019, allows investigative agencies to designate individuals, not only groups and organizations, as “terrorists”. In 2019 there was a 72 percent increase in the number of arrests made under UAPA, compared with those made in 2015.
Three student activists – Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal – who were among the many charged under UAPA for protesting against the amendment of the citizenship law and jailed for over a year, were recently granted bail by the Delhi High Court. The law allows pre-trial detention on the basis of simple suspicion and it is increasingly used to stifle growing dissent against the ruling party, from Kashmir to the forests of Jharkhand. The death of 84-year-old Jesuit priest Stan Swamy, who passed away earlier this month on the 5th of July in a Mumbai hospital, where he had been transferred following the worsening health conditions, has sparked a wave of rage across India and abroad: experts and critics contest the excessive and arbitrary use of UAPA. Swamy’s case was particularly controversial and many labelled his death as “institutional murder”. A UN human rights expert has said that his death will forever remain a stain on India’s human rights records.
“Father Stan” was suffering from Parkinson’s Disease and also contracted Covid-19 while he was in jail, where he had been locked up for 9 months, despite his deteriorating health conditions. In some cases, pre-trial detention on the basis of mere suspicion, coupled with delayed proceedings, can become a death sentence. Swamy was the last and the eldest of the 16 activists – including lawyers, tribal rights activists, human rights defenders, trade unionists, and scholars – falsely accused and arrested in connection with the Bhima Koregaon case, in which clashes broke out between the higher castes and the Dalits (the “outcasts” of the Indian social hierarchy) in Maharashtra, where Mumbai is located. in early 2018. Swamy, like the other activists, had been accused of conspiring against the government and entertaining ties with Maoist rebels, an insurgent group that has been carrying out armed guerrilla in the forests of central India for over 50 years, and is considered as a terrorist group by the State. Swamy, who advocated all his life for indigenous and Dalit rights, had pleaded for medical bail, but he passed away before the hearing.
When asked if the judiciary has failed to protect the Jesuit-activist, Nobel laurate Amartya Sen said: “I think the answer to the question must be yes — at least we need an explanation of how the judiciary failed in its protective role. Stan Swamy was a philanthropist; he was working tirelessly for helping people. The government, instead of providing him protection, made his life more precarious, more difficult, through adverse use of legal means. One result of it was that he was in a much more fragile state than he should have been. Could the judiciary have helped him more? The issue that has to be examined is whether the judiciary failed to keep the excesses of the executive in check”. Three years after the events of Bhima Koregaon, however, no accusations against any of the jailed activists have been corroborated by evidence.
“UAPA is being increasingly misused to stifle dissent. If you see the kind of people that are being accused – like the 15 people in connection with the Bhima Koregaon case – are all India’s front-line human rights’ activists, who have been speaking out against the Narendra Modi government. Even in the Delhi riots case, it was the same: those who were arrested were all anti-CAA protesters, very fine, peaceful protesters, activists, and journalists. So, anybody who dares speaking out against the government risks to be accused. A lot of them have been framed by fabricated evidence, like in the Bhima Koregaon case”, explained lawyer Prashant Bhushan, a public interest lawyer and activist. According to Bhushan, the National Investigation Agency (NIA) does the job for the executive: as the government appoints the NIA directors and officers, it selects people who are willing to do the government’s bidding, even going as far as fabricating evidence against the accused.
The special cell of the Delhi police (the law enforcement agency for the National Capital Territory of Delhi that comes under the jurisdiction of the Ministry of Home Affairs) investigating the Delhi riots, has done the same: it framed protesters and activists, like student leader Umar Khalid, who dared to peacefully contest the law. UAPA is extremely controversial for a number of reasons. “Firstly, it is virtually impossible to get bail under UAPA: while granting bail, the trial court has to record a finding that there is no prima facie case”, Bhushan explains. “How can the court say there is no prima facie case [or the establishment of a legally required rebuttable presumption, ed.] before the trial, especially if there is some fabricated evidence like in the Bhima Koregaon case?”.
“A lot of fabricated and inadmissible evidence has been used to frame these people and trials take long to start. They stand pending like in the Bhima Koregaon case: it has been more than three years and the trial has not yet started against these people who continue to languish in jail. So, bail is one problem. The other is the definition of unlawful activity: it’s like the sedition law, an activity that is creating disaffection towards the government. The definition is very broad and this causes a big problem, because any activity can be treated as unlawful and hence as terrorism”. According to the government, UAPA enables more effective prevention of certain unlawful activities and for dealing with terrorism. Any action that “questions, disclaims, disrupts, or is intended to disrupt the territorial integrity and sovereignty of India” is prosecutable. The broadness and vagueness of the definition may lead to possible misuse. The draconian UAPA should not be misused for “quelling dissent”, Supreme Court judge, Justice DY Chandrachud, recently said to a national TV channel. Sadly, most of the cases registered under UAPA are not brought before the Supreme Court judges but to high and lower courts, where judges are siding with the government and punishing protesters and activists for simply raising their voices.
Cover Photo: People hold posters commemorating Indian rights activist and Jesuit priest Father Stan Swamy – Mumbai, July 6, 2021 (Indranil Mukherjee / AFP).
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