Repeal UAPA: End targeting of minorities and dissenters Day one of a three-day consultation on inhuman provisions of anti-terror laws
28, Jan 2021 | CJP Team
The People’s Union for Civil Liberties (PUCL) along with a hundred organisations including the Citizens for Justice and Peace (CJP) organised a three-day consultation on the implementation of the Unlawful Activities (Prevention) Act (UAPA). The session began on January 20, 2021, and here’s what transpired on day one.
Repeal of the UAPA and the National Investigation Agency (NIA) Act was a strong demand that speaker after speaker stated reiterated from the three states of Telangana, AP and Delhi.
At the start of the session, Kavita Srivastava (National Secretary, PUCL) gave the audience a brief introduction of the malicious motive of UAPA and how it used in real life as a political tool to silence people who question the government. She also explained the importance of having sessions such as this as they help everyone understand how the draconian law is used in different states of India.
Making a strong pitch of how unconstitutional and anti-human rights the UAPA law was, V Suresh, the general secretary of the PUCL said, “The UAPA had reversed every element of the principles of natural justice, where the accused had to prove his / her innocence. Illegal detention was justified for more than 6 months, bail grounds were not what was in criminal law, instead even a prima facie involvement in the case, was a denial of bail.” He said, “With this backdrop, the UAPA had become a tool to silence dissenters and as a means to throw them in prison and deny them their civil liberties indefinitely.” Since it replaced Prevention of Terrorism Act (POTA) in 2004, it was brazenly used against Muslims and Adivasis (India’s indigenous tribal communities) mainly in the name of curbing Terrorism and Maoism. But after the law became more stringent, it not only continued targeting Muslims, Adivasis, Dalits, but was also used against intellectuals, political critics, trade unionists, lawyers and activists who are doing constitutional work.
After V. Suresh, senior advocate Mihir Desai took over to explain the history of terror acts in India, the differences between TADA, POTA & UAPA. They also explained in great detail how the UAPA is worse than both the earlier counter terror legislations, the Terrorist & Disruptive Activities (Prevention) Act, 1985 (TADA) & Prevention of Terrorism Act, 2002 (POTA).
The earlier laws were enacted in 1984 after the Air India Hijack and other terror-related incidents. A growing sentiment echoed by the State was that the existent laws were too weak to counter terrorism and hence a more stringent law was needed. So they brought in Terrorist and Disruptive Activities (Prevention) Act (TADA). This act was only initially meant for only two years, but Parliament kept renewing it. In 1994-95 there were large scale movements to end TADA. The then Chairperson, National Human Rights Commission (NHRC), former chief justice JS Verma wrote to all members of parliament (MPs) asking them to not support the extension of TADA. Finally, TADA lapsed.
In 2001, after the Parliament attack case, the government brought in POTA. Twice it failed to attract a majority in Parliament. The third time, a joint session was convened which helped the passing of the bill.
In 2004, the Congress government took over and they repealed the POTA honouring its commitment in the Common Minimum Programme (CMP) before the elections. However, the same United Progressive Alliance (UPA-I) amended the 1960 law Unlawful Prevention of Activities (UAPA) Act and brought in the most draconian provisions from POTA to into it. Only the Left parties opposed these amendments in Parliament. So essentially, they repealed a law, but its provisions were kept alive through another law; a law that had no sunset clause like counter terrorism legislation normally have but is a law on our statute books in perpetuity.
These are the three worst features of the UAPA (one was dropped) and are the reason for attracting such repulsion from activists.
V Suresh explained how and why the “accusation should be prima facie true” rule is extremely problematic. Essentially, on prima facie reading, as ruled by the Supreme Court in the Watali case (2019), the court need not look into the veracity of the evidence garnered against an accused; it should merely check that there is some or sufficient evidence to conclude that the accusation is true. “This is problematic since, if the evidence is not put to a test, law enforcement or the prosecution can pretty much submit whatever they want just to oppose bail. And pass the initial reading,” he said, adding, “Granted, later the accused can challenge this evidence after the chargesheet is filed but by then the accused has to spend many years in prison before the trial even begins.”
Finally, the conviction rates of these laws were presented to underscore the fact that the government is merely using these laws to stifle dissent.
The other deleterious features of the UAPA-
- UAPA does not have a sunset clause like TADA & POTA.
- Under POTA, the requirements for getting a bail in the first year are very stringent. But, after the first year, the requirements are the same as that of a normal bail. Hence, the stringency reduces after a year. There is no clause in the UAPA.
- Unlike TADA and& POTA, there is no provision in the UAPA to set up a review committee before imprisoning someone.
Mihir Desai, vice president of PUCL also talked of how both the NIA act and the NATGRID were used to further persecute those targeted and that there was a complete invasion of the privacy of those who came under the radar of these agencies. “The NATGRID collected information from 12 agencies and that people were subjected to a constant surveillance. Further this was setup without a law, which is violative of the Puttuswamy judgement which said that the state can infringe and individual’s privacy only through law,” explained Advocate Desai. Under the NIA act, there was complete finishing of the state’s power of knowing what was happening and it also had the powers to not disclose to the prosecuted the witnesses against his him. Along with the UAPA the NIA Act has to be repealed.
Telangana
In the second part of the session, activists from different states were talking about how the UAPA has been used across the country in curtailing basic rights. The conversation started with Mr. Madhav talking about the situation in Telangana. He explained the modus operandi of the law enforcement agencies. “First the police catch a few people, then concoct false accusations against them such as they were in association with banned organisations such as the CPI (Maoist). Since these organisations are banned, any individual in association with them is also termed a criminal or an anti-national and charged under the UAPA,” he said. “The agencies have also planted fake evidence such as literature, guns, and CD’s to bolster the charges against the accused,” he alleged. In this manner, the police instil fear in the tribal communities, living near forests where Naxalites operate, to disincentivise them from helping Naxalites. Further, charge sheets are also almost never filed against these individuals which helps the agencies to keep the individuals in prison for as long as they want.
After Mr Madhav, Mr Kranti from Andhra Pradesh took over to explain the situation in Andhra. Mr Kranti started with explaining how the state wantonly files cases against citizens. Later he brought up an interesting case in which 64 people from all around Andhra were accused based on a statement made by one single individual. To prove the ludicrous nature of this accusation, Mr Kranti pointed out that one of the accused had been in jail for the last six years.
Ravi Narla, a victim of the UAPA gave testimony of how the law was unfairly used against him. He faced 12 cases under the UAPA from 2009-16. After his release, in 2018 he started fighting against Hindutva supremacists. In 2019 his house was raided. On that day, he was going to hold a press conference on the Babri Masjid verdict. He was later arrested, however, the accusations had nothing to do with the press conference, it was some fictitious accusation. In fact, while the police were taking Ravi from the jail to the court, a senior police officer asked a junior, why Mr Narla was being taken, the junior said, sir mujhe kya pata, upar se order aya hei (I do not know why, there are orders from above).
Delhi:
In Delhi the UAPA was wrongfully used to criminalise a constitutionally protected right, the right to protest. Peaceful anti-CAA (2019) protests were being conflated to terrorist activities through a misuse of the law. For example, FIR 59 connected anti-CAA (2019) protests to the North-East Delhi riots. In fact, the FIR did not make any real charge, it only made political accusations. Moreover, this FIR unlike other FIR’s does not even mention the offending statement verbatim. Only a vague mention was present.
The Delhi presentation was in two parts, relating to the conspiracy case of the Delhi violence which followed the anti CAA, NRC, NPR protests and the ongoing farmers protest, around Delhi of several lakh farmers. It was clear that the UAPA was being used in both cases, as the Union of India had decided to criminalise protests. Which took away the core freedom principle of the Indian Constitution, relating to freedom of speech and expression of the common people. Speaking in the Consultation, Advocate Shahrukh Alam, compared various judgements on the right to protest, including the judgement on the Shaheen Bagh road block, with the American jurisprudence on protest, which was crystal clear, that a road block due to protest, is equivalent to a traffic block and the crime was no greater than that. It was not criminalised, like in the context of the Delhi cases where it was branded as a terror act.
Nadeem Khan of the United Against Hate (UAH), talked of the profiles of the 23 arrested under UAPA, all except two, under the age of 35. More than 400 people had been summoned by the Special Cell of the Delhi police trying to basically fix confessions under threat of them being thrown into the person indefinitely in Jail or by creating a culture of fear, that comrades who struggled together had even stopped talking to each other. Lawyers also had played a big role in silencing any public challenge to the culture of fear. And most of those interrogated, would not speak out.
Speaking about the notices received by the farmers struggle, Advocate Guneet Kaur said that the NIA has sent at least a 100 notices to people who are mostly supporters, doing sewa (service) or leaders of the protest, relating to FIR 40/2020, December 15th NIA police station. The nature of the interrogation consisted of people being called to Delhi and being asked to submit their bank account details. This seems like a massive intelligence exercise. The FIR no-where mentions the Sanyukta Kisan Morcha. Nowhere the word kisan/farmer is mentioned. It is as vague as this, that there is threat from banned organisation like Sikhs for Justice, Babar Khalsa are sending money from abroad to individual people to promote terrorism etc, she said.
Punjab
They mentioned that farmers protests are being coordinated by multiple organisers in terms of providing food, money, and shelter to be at the Singhu border. Therefore, now the National Integrating Agency (NIA) is targeting these organisers and is foisting false accusations against them. Most organisers are being charged for associating with Khalistan sympathisers, however the government is not submitting any evidence to back this claim. It’s all mere conjecture and speculation. Khalsa Aid, an organisation which has set up langar for Rohingya refugees in Myanmar and Bangladesh and has helped many in Syria and Iraq is being called anti national today because it is setting up langar for farmers who are asking the government to help them access their fundamental rights. Punjabi journalists such as Jasbeer Singh who are covering the protests, bringing the voices of Indian farmers to the rest of India– unlike that of the mainstream media which calls the protest anti-national union– are also being charged by the NIA.
Finally, Mr. Suresh from PUCL concluded the session with a general remark on the UAPA and also made a declaration of the initiatives being taken up by PUCL in the near future to fight against these laws. They are planning to release comic strips, memes and partner with stand-up comedians such as Kunal Kamra to widen their reach.
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