Terror Laws under a Proto-Fascist Regime Draconian laws are repealed when citizens' protests multiply and grow

18, Sep 2021 | Mihir Desai

Senior counsel, Mihir Desai delivered this lecture of September 5, 2021 at an online event organised by the Gauri Memorial Trust and Citizens for Justice and Peace. CJP is happy to bring the entire text of the lecture here.

It is a pleasure as well as a privilege to be invited to present this paper at this event to mark the fourth anniversary of the assassination of Gauri Lankesh, the Gauri Lankesh Memorial. Though I had met Gauri on a few occasions I cannot say that I knew her personally very well. Of course the legend lives on and I am sure if she was around in recent times she would have been actively intervening virtually as well physically to expose the present regime. She had recognised that Hindutva forces were not merely anti-Muslim but were also anti-Dalit and anti-women and she incorporated all these critiques in her sharp and trenchant analysis. She was a very popular writer and from what I hear an extremely warm and affectionate person.

CJP stands in solidarity with the human rights defenders targeted by a vindictive state. A healthy democracy needs voices of dissent. We also need human rights defenders and social activists to work tirelessly to uphold our shared values of equality, peace and justice. Join CJP now!

Today marks four years of her death and it is very heartening to see that her memory has not been allowed to fade. The right wing forces succeeded in killing her but just like in the case of Father Stan Swamy, her death triggered an avalanche of national and international outcry which has nullified the political purpose of killing her.

Her murder trial of course is on-going and one hopes that not just the foot soldiers but also the master minds are some day duly punished. I am going to speak today about the Unlawful Activities (Prevention) Act today and examine whether this law was actually meant to tackle terrorism and ban terrorist organisations Sanatan Sanstha which is suspected to have masterminded not just the killing of Gauri Lankesh but also said to be involved in various other terror crimes, would have or should have been on top of the list of banned terrorist organisations. The fact that it has not even been declared as an unlawful organisation, let alone being declared a terrorist organisation itself is a reflection of the intent and abuse of UAPA.

Background

As we all know, Fridays For Future is an international environmental group also having a presence in India. In 2020, the Ministry of Environment published the draft new Environmental Impact Notification totally diluting the existing environmental protections. The draft Notification was published for inviting public comments. Fridays for Future made the cardinal error of believing that the Government actually wants a dialogue. It placed its critique on its web site and also channelised e-mails to the Minister.  The Delhi Police filed a case under UAPA against them and blocked their website.  Due to the public and international outcry and because of its patent absurdity, the Delhi Police had to scurry for cover and also dropped the UAPA charges. Other groups and individuals such as the CAA/ NRC protestors or the Bhima Koregaon accused have not been so fortunate. But these farcicalities at least serve the purpose of highlighting the inbuilt persecution in the law.

It is important to assess and understand UAPA in a socio political, historical and legal context. My attempt is threefold. First, situate UAPA historically. Second, give a broad understanding of the structure of UAPA and its jurisprudential problems. Finally, locate it within the ideological moorings of the present establishment. In the process I will be arguing that laws banning organisations and tackling terror laws have become increasingly draconian over the years. I will also be arguing that though many of these laws are the gifts of Congress they are used much more sinisterly by the present establishment for achieving its ideological and political objectives.

UAPA is not the only draconian law nor is it the first one. There are other laws such as sedition, the National Security Act (NSA), the Armed Forces Special Powers Act and multiple state government laws such as MCOCA, KCOCA, Public Security Act and others, which also pass the muster of repressive laws. There are also laws which have since been repealed such as TADA, POTA, MISA, etc.

All these laws deal with what is popularly known as states of exception i.e. situations which are exceptional and which cannot be dealt with under or by ordinary law. The state carves out exceptions to the law under the guise of dealing with emergent situations which in turn are defined by the state as per its own discretion. They derive popular acceptance under the pretext of security of state, public safety coupled with jingoistic nationalism and judicial deference. Slowly the state of exception starts widening its reach and spreads its tentacles from measures for dealing with extra ordinary times to measures for dealing with ordinary times. Thus preventive detention law which was initially a law valid for two years with a sunset clause has now become a permanent law in the form of the National Security Act, 1980. Similarly, TADA and POTA which had sun set clauses are now replaced by the amended UAPA which is now a permanent ant terror law. Similarly, the exception also starts encroaching into the ordinary law. Thus now there is a move to overhaul the entire criminal law which in effect means making it more stringent, bringing in some aspects of the extraordinary laws into the ordinary criminal law thereby turning on its head criminal law jurisprudence and eroding such fundamental principles like presumption of innocence, bar against self-incrimination, fair trial and the like.

The law itself becomes an instrument of oppression while at the same time legitimising the subjugation. A democratic charade is maintained while hollowing out its essentials.

Some of the worst state inflicted crimes have historically been carried out under the cover of legislation. Many atrocities are not through a flouting of the law but a result of the laws. These laws enable and legitimise state repression in various ways. Strictly speaking these laws are in conformity with rule of law if one equates rule of law with rule by law. But if rule of law is understood as regime of just and fair laws then of course these laws are anything but the regime of rule of law. Governments across time and continents have used such legal devices. Germany had an entire legal structure set up to first discriminate then disenfranchise, and then liquidate the Jews and other marginalised communities. A similar thing is happening in Israel which has regular elections but at the same time has a legal structure which oppresses the Palestinians on a day to day basis. It is not that the Palestinians cannot approach the Court but when the entire legal structure- the legitimising mechanism is against you, the Courts are of no help. The Courts are themselves part of this legitimising agenda. Afghanistan under Taliban will undoubtedly promulgate laws which will be anti-women. China, apart from other repressive laws against speech and expression has laws which totally terrorise Uighars and Tibetians. Apartheid in South Africa was a constitutionally sanctioned regime.   But this is not just the problem with fascist or authoritarian states. Even those states classified as liberal democracies such as the United States and many of the European countries follow this pattern in some measure or the other. The State of exception carved out by the liberal states is an ever expanding phenomena and India has followed this pattern. The Patriot Act in USA, similar legislations to deal with the undefined terrorist activities across Europe, South Africa and Australia, the excessive police powers under various legislations across the world, the liberal use of the death sentence in USA, the increasing presence of surveillance laws across democracies, the anti-immigration laws, etc. are just a few examples.  Legislative repression is increasingly deepening and when it is supported by lack of executive accountability and complete deference by the judiciary the situation becomes frightening. Corporate greed especially of the neo liberal variety definitely plays a role in this but when it is coupled with a racist, patriarchal, communal and castiest ideology the mixture is even more  petrifying.

Repressive laws are only one segment of the legislation used to throttle dissent. The Information Technology Law and Rules, The Telegraph Act, criminal defamation, contempt of court and various similar laws are also part of the oppressive arsenal.

Of course the poor, marginalised and persecuted groups are not merely victimised through repressive criminal laws. They are also regularly at the receiving end of the ordinary criminal justice system. Apart from this even the civil law acts to repress them. Just to give example of India, the land acquisition laws, the environmental laws (especially their dilution), the information technology laws and rules, the mines and minerals laws, the new Farming Laws, the Labour Codes, etc. are and will be used routinely to deprive people of their rights.

Having given this background let us now talk about UAPA.

In order to appreciate the significance of UAPA we need to look at its historical trajectory. UAPA in its present avatar is a law which impacts in three ways. One, it bans organisations. Two, it deals with terrorism and three it is in effect, due to the bail and allied conditions,  a preventive detention of law. I will therefore trace out the journeys of these three kinds of laws which finally culminate into UAPA in its present form.

History of Banning Organisations

Article 19 (1) (c) guarantees all citizens the fundamental right to form associations or unions. The exceptions to this as provided in Article 19(4) which are on the grounds of (i) sovereignty and integrity of India; (b) public order and (c) morality. “Sovereignty and integrity of India’, as an exception was brought in through a Constitutional Amendment only in 1963. This paved the way for UAPA.

The history of laws banning organisations in a way begins in 1908 with the passing of the Indian Criminal Law Amendment Act, which continues to be in force. Unlawful association is defined as an association which encourages or aids persons to commit acts of violence or intimidation or an association declared to be unlawful by the State Government. The State Government can declare an association unlawful if in its opinion any association interferes or has its object interference with administration of law or with maintenance of law and order or constitutes danger to public peace. The punishment for membership or assistance is six months imprisonment or fine.  Anyone who manages such association or assists in promoting meeting of such association can be imprisoned for 3 years or fine. The state also has power to take possession of any place used for such association and evict any person occupying such place. There is also the additional power to forfeit the funds of such an association. In comparison to UAPA this is a mild law. However this is one law under which the State Governments (and not the Central Government) have powers to ban organisations. Of course the ban was not subject to any time limit nor was there any judicial or other remedy against the ban.  This law was sought to be amended by the then Madras Government which provided for an Advisory Board. The challenge to the amendment reached the Supreme Court in 1952 in V.G. Row’s case- one of the first Constitutional cases tried by the Supreme Court. The Constitutional Bench struck down the amendment essentially on two grounds. First, that the Act did not require any communication of the banning order to the organisation. Second, that the Amendment Act did provide for the matter to be referred to an Advisory Board whose decision would be binding. However such a major action could not be allowed without a judicial review and in the absence of judicial review the Amendment Act was unconstitutional. By this very logic the main 1908 Act itself should have been struck down but that it appears was not done and subsequently various State Governments have been using the parent act with some amendments to ban organisations.

During the British period of course under the guise of war and other so called emergencies various temporary banning laws came to be passed. The Governor General had the powers to issue ordinances which would include pan India ban of certain organisations. This continued even after independence and the Ministry of Home Affairs exercised such powers including the most notable ban and of course its revocation of the RSS in late 1940s. Once the Constitution came in, these powers no more existed as this could be done only by an existing law (such as the 1908 Act giving powers to State Governments) or an enacted law in future. No such enacted law existed prior to this, giving powers to the Central Government to impose a pan India ban.

This changed when UAPA was enacted in 1967 as a law giving power to the Central Government to ban what are known as unlawful associations. It defines unlawful activity as one which supports any claim to bring about cessation of a part of territory in India or which incites such causes or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India. Unlawful Association is any association which is involved in unlawful activity or has as its object any activity punishable under Sections 153A or B of the Indian Penal Code. These sections deal with hate speech. Thus an unlawful organisation is one which either is involved in hate speech or is pursing activities which are secessionist in nature. The power to declare an association as unlawful is with the Central Government through a Notification. Ordinarily the association will be declared unlawful only after a Tribunal confirms the declaration but the Central Government can apply the Notification immediately if it is of the opinion that emergent situation exists. In any case within 30 days of declaration the matter has to be referred to a Tribunal which will in turn give opportunity to the association and hold an enquiry and give its decision. The Tribunal is to be headed by a High Court judge. The Notification was to be effective for two years. The funds of such association could also be confiscated. The office could be sealed. If a person continues to be member of such association or participates in its meetings or funding, etc. she can be punished by imprisonment of up to two years. On the other hand any person who takes part in any unlawful activity (irrespective of whether such a person is part of an unlawful association or not) can be punished by imprisonment of up to 7 years. No court can take cognizance of any offence under this Act without prior sanction of Central Government. Over the years there have been major changes to this law. But in terms of what the law originally dealt with, the definition of unlawful activity has been expanded (in 2004)  to include activity which causes or is intended to cause disaffection against India which in itself makes it pretty vague and susceptible to misuse. By a 2013 amendment the period of operation of the ban was extended from 2 years to 5 years. In 2004 there was an amendment which provided that any person belonging to unlawful association causes loss of human life he shall be punished with imprisonment for life and if he causes hurt or damage to property will be liable to imprisonment which is minimum 5 years.

Of course, in 2001 Prevention of Terrorism Ordinance (POTO) and in 2002 POTA were brought in which for the first time talked also of banning terrorist organisations. In 2004 when POTA was repealed, UAPA was amended and the ban on terrorist organisations was incorporated in UAPA. Today, the central law dealing with ban on organisations is UAPA which imposes two kinds of bans- those declared as unlawful associations through a Government Notification which can be banned for up to 5 years and those organisations declared as terrorist organisations which are so banned by amending the Schedule to the UAPA and are banned permanently.

Preventive Detention Laws

One of the central purposes served by UAPA is to keep arrestees behind bars for years together without a trial. In this sense it has also acted as a preventive detention law.

In 1818, the Bengal State Prisoners Regulation III of 1818 was passed as a preventive detention law which was subsequently extended to other areas. During the First World War, in 1915, the Defence of India Act was enacted which provided preventive detention as a war time measure.   In 1919, the famous Rowlatt Act was passed.  What did the Rowlatt Act provide?  Essentially, that, persons could be kept in jail, without trial, for up to two years without trial and bail.  It was a preventive detention law and for search without warrant.  The title was Anarchical and Revolutionary Crimes Act, 1919.  There was a huge protest against it, and one of the most significant symbol of the protest is the Jallianwala Bagh massacre which was a meeting to  protest against Rowlatt Act — to protest against a preventive detention law which large sections of the Indian people felt would be misused.  And, of course, thereafter Gandhiji’s satyagraha started and the Act had to be withdrawn in 1922 because the national movement believed that this law was what they called (perhaps inappropriately) a ‘black law’ that needed to go because it allowed for police executive power to preventively detain people.  After the law was forced to be withdrawn, we had the Defence of India Act, 1939 which provided for preventive detention but of course during war time.

During the Constituent Assembly there were vigorous debates concerning preventive detention.   The national movement had always opposed preventive detention.  They said you charge a person, you convict a person, you jail a person — which is one thing.  But without charging a person, without convicting a person, how do you put him behind bars?  This was the question before the Constituent Assembly.  Do we have preventive detention or not?  Finally, despite the history of oppressive acts under colonial rule, the Constituent Assembly decided to retain preventive detention as part of the Constitution; in fact as part of the Fundamental Rights chapter.  Article 22 of the Constitution of India permits preventive detention, but under limited circumstances.  Preventive detention is permitted only as per the law made by Parliament.  This can initially be only for three months; and more than that only if an advisory board actually goes through the grounds of detention and finds it justifiable; the advisory board must consist of  persons who are qualified to be high court judges etc. Parliament under the law can provide for maximum period of detention (no maximum limit provided) and can even authorise detention without advisory committee’s opinion. No maximum period of detention is prescribed. Thus Parliament, by law can provide any period of preventive detention and such a law can also prescribe conditions under which advisory committees recommendation need not be called for.

An aside to this. After the (1975-77) Emergency wherein the then preventive detention law (MISA) was misused, the Janata Government brought in the 44th Amendment to the Constitution.  One aspect of this amendment was reducing the period within which the Advisory Committee’s opinion was statutorily (under law) to be obtained from the required three months to two months. The Chairperson of the Advisory Committee was to be a sitting High Court judge nominated by the Chief Justice. The most important aspect of this Amendment was that Parliament could not bypass the Advisory Committee under any condition. Though the Amendment has been passed, the portion pertaining to preventive detention has not been notified even 44 years after its passing and so it has not come into effect.

Immediately after the Constitution was adopted, you have the first preventive detention law. Maximum detention could be for one year.  This law had a sunset clause.  Namely, it was to be there for one year, and at the end of one year the Parliament was to decide whether it should be continued or removed.  The law was repeatedly renewed by the Parliament and it was allowed to lapse only at the end of 1969.

The law was challenged right at the inception in possibly the first Constitutional rights case in Supreme Court by A.K. Gopalan a communist leader who was preventively detained. However the Supreme Court unfortunately upheld the law in a decision which has been much criticised over the years but which till date has not been completely overruled.

Soon we had MISA (Maintenance of Internal Security Act, 1971) — again a preventive detention law, which to begin with followed the pattern of the earlier preventive detention law allowing maximum detention for 1 year but was later amended to allow preventive detention during the entire period of emergency. This law did not have a sunset clause.  It was hugely misused and became a symbol of government lawlessness during the Emergency — so MISA was repealed once the Janata Government came to power in 1978 (Act 27 of 1978). MISA was the first permanent preventive detention law.

In 1980 the National Security Act (NSA) was enacted, which is now the law which deals with preventive detention allowing preventive detention up to one year.  This again is a permanent law for preventive detention.  Over the decades the Supreme Court has observed that this law is an exception to the fundamental right to personal liberty and can primarily be used if there is an issue of security of state or public order and not merely for law and order situations which can be dealt with under the ordinary criminal law. The Court itself has observed that the law follows the ‘jurisprudence of suspicion’ in the sense that persons are detained not because they have committed any crime but because it is suspected that if they are not detained they may commit crime. Despite all the safeguards set out by the law itself and the Supreme Court in various judgments it has been massively misused. As per reports more than one lakh persons are in prison under preventive detention. The famous case of Dr. Kafeel Khan is illuminating. Having been arrested for making a supposedly ‘provocative’ speech in the context of anti-CAA/NRC agitations, he was released on bail. Immediately he was detained under the National Security Act and it was only after seven months that his detention was quashed by the Allahabad High Court. Similar was the case of Chandrasekhar Azad, who was arrested in 2017, released on bail and immediately placed under preventive detention. Constitutionality of NSA was challenged but by and large upheld in A.K. Roy’s case by the Supreme Court.

Apart from NSA, the Central Government has also enacted the Conservation of Foreign and Exchange and Prevention of Smuggling Act (COFEPOSA), Narcotics Drugs and Psychotropic Substances Act, 1985, Armed Forces Special Powers Act (AFSPA) which allow preventive detention. Similarly a number of state governments have enacted preventive detention laws.

The extent of the use of these laws is staggering. During 2019, one lakh persons across the country were preventively detained for varying periods. During the anti-CAA protests, 5,558 people were detained under the preventive detention laws. Similarly after the abrogation of Article 370, a large number of persons were kept under preventive detention for months together without being charged with any offence.

It needs to be emphasised that neither United Kingdom nor United States have preventive detention laws except during war times.

There is really speaking no justification behind preventive detention laws because our existing ordinary criminal law- Criminal Procedure Code adequately deals with the situations which the preventive detention laws seek to address. Under Section 41 of the Cr PC a police officer has power to arrest without warrant any person who has committed or is suspected to have committed cognizable offence. Similarly, under Section 151 of the Criminal Procedure Code a police officer has power to arrest without warrant a person who is likely to commit cognizable offence. Thus the code takes adequate care to nab persons who commit an offence or who are likely to commit an offence. Of course under the CrPC the arrested person has to be produced before the Magistrate within 24 hours where the arrestee can apply for bail which may or may not be granted.  This is where preventive detention laws come in taking away the entire discretion of judiciary to release the detainee on bail as there is no provision for bail. This is precisely where UAPA comes in. Though theoretically bail is possible immediately, the conditions are so onerous that there is no chance of getting bail immediately.  In that sense the law acts as a preventive detention law.

Anti-Terror Laws

While there have been some legislations such as the Armed Forces Special Powers Act, 1958 (as amended from time to time and applied at times throughout the North East) which was enacted to supposedly combat what we may loosely call terrorism, it has not been applied pan India (though there is a power to do so) and essentially deals with the powers of army in these states. A similar law was also brought in 1990 for Jammu and Kashmir. The misuse of these laws is legendary and so is the abdication of its responsibility by the Supreme Court by upholding this law which sanctifies army atrocities without a shred of accountability. These laws do not define terrorism or terrorist related activities nor do they speak of banning organisations. There are also other laws such as Explosive Substances Act, 1908 which punish possession or use of explosive substances with intent to cause damage to life or property and Anti Hijacking Law which deals with hijacking. But the regime of pan India anti-terrorist laws in a conventional sense starts in 1980s. Even the UAPA as it existed at that time was not an anti-terrorism law.  

  1. Terrorist Affected Act, 1984

The initial avatar came for the first time in 1984 through the Terrorist Affected Areas (Special Courts) Act. It defined terrorist as

“terrorist” means a person who indulges in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to— (i) putting the public or any section of the public in fear; or (ii) affecting adversely the harmony between different religious, racial, language or regional groups or castes or communities; or (iii) coercing or overawing the Government established by law; or(iv) endangering the sovereignty and integrity of India;”

Under this law the Central Government could declare any area as Terrorist affected area and offences concerning waging of war against the Government (Sections 121, etc.) of IPC would be tried by Special Courts set up in this area. The application of this law depended on an area declared as terrorist affected and if a person was charged with such offence then the jurisprudence of bail, remand, burden, etc. was turned on its head like it happened in the other laws. This shift is discussed more in detail in the following pages. The Act was repealed once TADA was enacted.

  1. TADA- Terrorist And Disruptive Activities (Prevention) Act

The Terrorist And Disruptive Activities (Prevention) Act (TADA) was brought in 1985 and replaced by similarly named Act in 1987. Since 1987 Act was the one which continued till 1995 I will deal with this Act which is a more stringent version of the 1985 Act. This Act is seen as the precursor to the present day UAPA.

It applied across the country and not just to any designated area. It did not deal with banning of organisations. Any person with intent to overawe the Government or terrorise any section of the people or cause disharmony amongst sections of people  using arms or ammunition or substances of hazardous nature causing or likely to cause death or injury or disruption of essential supply or services commits a terrorist act. Conspiracy and abetment are also punishable. The minimum sentence was 5 years extendable to life or even death sentence.

Under the Act, there was a separate offence called disruptive activities which involved any act including speech which even questions the sovereignty and territorial integrity of India or supports a claim for cessation of any party. Special designated Courts were set up and the ordinary Constitutional and criminal law jurisdiction was reversed. By and large such reversal continues till date in the subsequent laws.

  1. Confessions made to certain higher ranked police officers were held admissible in evidence unlike the ordinary criminal law where such confessions are not admissible;
  2. All proceedings were to be conducted in camera. This is a violation of the ordinary principle of open trials.
  3. Police remand upon arrest which was earlier 15 days was now extended to 30 days and the time for filing charge sheet (which ultimately reveals what the accused is actually charged with) was extended from 60 days to 1 year.
  4. Bail provision was made extremely harsh requiring the judge to hold that the accused was not guilty of offence and not likely to commit an offence if released on bail.
  5. Provision for anticipatory bail was done away with.
  6. Confession of a co accused was made admissible against the accused.
  7. Burden of proof in certain circumstances was shifted on to the accused.
  8. Identity of witnesses could be kept away from the accused till the very last stage
  9. Appeals could only be directly filed in the Supreme Court.

Thus, the entire jurisprudence shift: the right from the presumption of innocence, bar against self-incrimination, right to a fair trial, etc. was overturned. By 1994 it was noticed that more than 76,000 persons were arrested under TADA and most of them not for terrorist acts but for industrial strikes, protests against government policies including price rise, etc. When the Act was challenged in the Supreme Court it was shockingly upheld in 1994 in the Judgment of Kartar Singh with certain minor recommendations to dilute its impact.

The Act had a sunset clause requiring it to be placed before the Parliament every two years for renewal. It was renewed till 1995 after which due to its massive misuse and the consequent uproar by political parties as well as the civil society it was allowed to lapse. In fact at that time the Chairman of the NHRC (former Chief Justice of India, JS Verma) wrote individual letters to all the MPs asking them not to support its renewal.  While the rate of conviction under this Act was around 1%, some of the most important cases tried under TADA did not lead to a conviction under TADA. The killers of General Vaidya were not convicted under TADA but under the ordinary law. Similarly the assassination of Rajiv Gandhi led to the conviction of the accused but they were not found guilty under TADA.

  1. POTA – Prevention of Terrorism Ordinance, 2001 (POTO)/2002 POTA

After the lapse of TADA, for the next five years there was no anti-terror law. The BJP Government did make an effort to bring in such a law. The Law Commission was asked to prepare a report which stressed the need for such law. But again the NHRC came out strongly against it and the wounds of TADA were still fresh. Finally 2001 gave the opportunity to the Government. On the one hand there was the 9/ 11 world trade centre attack and on the other was the Parliament attack in Delhi. Taking this opportunity, the BJP-led, NDA I Government issued an Ordinance, namely the Prevention of Terrorism Ordinance, 2001 (POTO). This was required to be converted into law but due to opposition from the Left and Congress and some other parties the law could not be passed in Rajya Sabha. So a joint Parliamentary sitting was held and it was here that Prevention of Terrorism Act, 2002 was finally passed.

This law was broadly on the lines of TADA but with some significant differences.

  1. The definition of terrorist act was expanded to not just attacks by arms, ammunition and hazardous substances but also ‘by any other means whatsoever’.
  2. For the first time there was a bridge built between anti-terror law and the laws banning organisations i.e. UAPA. Anyone who continues to be a member of an lawful organisation and is aiding or promoting its activities and causes grievous injury or to any person or damage to property will also be treated as having committed terrorist act.
  3. Appeals were now allowed to the High Court
  4. For the first time, this law brought in declaration of organisations as terrorist organisations through a Schedule annexed to the Act. Mere membership of such an organisation was punishable with imprisonment up to 10 years.
  5. The Magistrate could direct any accused person to give his handwriting, footprints, fingerprints, blood, voice sample, saliva, semen. Refusal to comply will draw an adverse inference.
  6. There was an entire chapter on electronic interception which could be allowed under certain circumstances.

The following were the dilutions from TADA

  1. The time for filing charge sheet was reduced to 180 days in the maximum.
  2. While the onerous bail condition was still prescribed this was applicable only during the first year after arrest and subsequently the larger ordinary conditions of bail would apply.
  3. The Central Government and each of the State Government were required to set up Review Committees which, on an application by an aggrieved person would decide whether there was a prima facie case to proceed against such person under POTA. The decision was binding on the Government. Of course such Review Committees were not set up for a long period frustrating the provision.
  4. Confession made to the police was still admissible but confession of a co-accused could not be used for convicting an accused.
  5. Section 58 provided for prosecution of a police officer who exercises his powers corruptly or maliciously and punishment for up to two years or fine. The Court could direct compensation to be paid to the person so prosecuted maliciously or corruptly.

Again, as was expected there was a massive abuse of this law. In particular two cases raised the antenna of the political parties. One, was the arrest under POTA of Raja Bhaiya- a gangster from UP belonging to the Samajwadi Party and Waiko, the leader of MDMK a Tamil Nadu regional party.

Structure and Salient features of UAPA

UAPA has reached its present form after undergoing major changes over the decades. Having started off in the 1960s as an Act to declare certain organisations as unlawful and ban them for a limited period, it became an anti-terror law in 2004, as a result of the insertion (copy- pasting) of some of the anti-terror provisions from the repealed POTA law. The Act acquired sinister dimensions when it was further amended in 2008 after the terror attack in Mumbai. This brought in the draconian bail and remand provisions. In 2013 it was again amended to bring in longer banning periods for organisations declared unlawful, widening the definition of terrorist activities to include certain financial crimes and provide for attachment of properties, etc. Finally the 2019 Amendment expanded the scope of the Act from being confined to banned organisations to roping in named individuals as ‘terrorists’.  As it stands today, the substantive provisions of the UAPA can broadly be divided into six parts.

  • Unlawful Associations. These are Associations which are declared to be unlawful through Central Government Notifications and continuing such associations or being members of such associations is an offence. Sections 3 to 12 of the Act deal with these associations.
  • Unlawful Activities. These are activities carried on by individuals or associations which seek to bring about cessation of any part of the Country or spread disaffection against the country. These are dealt with Sections 2(o) and Sections 13 of the Act;
  • Terrorist Activities: (Sections 15 to 23). These involve activities which are likely to threaten unity, integrity, security, economic security or sovereignty of India or with intent to strike terror or likely to strike terror in people or any section of the people using explosives or firearms, etc. or by any other means of whatever nature which can cause or likely to cause death, injury or disruption of any supplies or services essential to the life of a community or destroys any property of State or Central government or any of its agencies, etc. etc. This definition is so wide that it can include a strike, a rasta roko and virtually any expression of protest. The Delhi High Court in the CAA/ NRC protest cases has tried to minimise the damage by rightly giving a very narrow interpretation to this but presently the Supreme Court has effectively stayed this interpretation. It also needs to be understood that for this offence an individual need not be a member of any unlawful association or banned organisation.
  • Terrorist Organisations. (Sections 35 to 40). These are organisations named in the Schedule of the Act and mere membership amounts to an offence. Again here the Supreme Court has given Judgments which say that mere membership is not enough to implicate a person but that person should be an active member. But even these judgments are now being reconsidered by a larger bench of the Supreme Court.
  • Individual Terrorists: (Sections 35 to 40).This was brought about by an Amendment in 2019 which deals with individuals who may or may not be part of any banned organisation but who is named in the Fourth Schedule of the Act. Once a person is named in the 4th Schedule, he is declared as a terrorist and without anything more is an offender.
  • Terrorist Gang: Section 2(l) and Section 20. Terrorist gang is any association, other than terrorist organisation whether systematic or otherwise, which is concerned with or involved in terrorist act. This is very sinister and is likely to be used more and more in future since such a ‘gang’ does not need to be formally banned and any two or more persons can be classified as a terrorist gang and can be prosecuted.

The draconian nature of the law is also reflected in the following procedural aspects:

  • Police remand like in POTA is extended to 30 days and the time of filing charge sheets is 180 days
  • Bail provisions are onerous as in POTA but there is no dilution of the provisions after 1 year. Till the trial lasts the conditions continue to be onerous. Again, the provision of anticipatory bail is done away with.
  • The same conditions concerning hiding the witness identity, burden of proof and disclosure of information apply.
  • There is no sunset clause. Thus there is no parliamentary or other scrutiny.
  • The Review Committees presided over by a sitting or retired judge of the High Court, which were required to be set up under POTA to consider individual prima facie cases are now done away with.

UAPA more Draconian than earlier Laws

When one looks at the history of draconian criminal laws, one realises that there is not only continuity but also increasing repression built into the laws. The following changes are noticeable:

  1. Initially, the ban on unlawful associations could only be for 2 years. This has been extended in 2013 to 5 years;
  2. POTA had a stringent bail provision only for the first year after incarceration but under the amended UAPA the stringent provision continues throughout the trial
  3. Under POTA, Review Committees were to be set up by the Central and State Governments presided by a sitting or retired High Court judge which would, on application by an accused, review if there was a prima facie case to proceed against such a person and its decision would be binding. Under UAPA there is no provision for such independent review committees headed by a Judge;
  4. Both TADA and POTA had sunset clauses. UAPA is a permanent law.
  5. Under neither TADA nor POTA could any individual be declared as a terrorist but under UAPA even an individual can be declared as a terrorist.
  6. Under POTA if a person is maliciously prosecuted he would be entitled to compensation and the concerned officer would be liable to be prosecuted. This provision has been done away with under UAPA.
  7. The definition of terrorist activity has been widened to include ‘economic security’.

The abuse of UAPA by the present regime

Undoubtedly, a number of draconian legislations including the Preventive Detention Law, MISA, NSA, AFSPA and TADA were brought in by the Congress Government and it can no way wash its hands off the sins which are inflicted today. TADA was gravely misused by the Congress as also by various State Governments. POTA of course was the BJP’s gift and again grossly abused. Against both these legislations there were major protests by the citizenry which finally led to their lapse/ repeal. Of course, UAPA needs to be opposed because it’s a repressive law. There is no justification for its continued existence irrespective of which government is in power. The original UAPA was brought in by Congress and so were many of its draconian amendments. So what is peculiar about present Government’s use of UAPA?

First, the abuse of UAPA has increased substantially during the last 7 years since NDA II came to power. On March 9, 2021, the Ministry of Home Affairs informed the Lok Sabha that, between 2015 and 2019, more than 5128 UAPA cases were registered and 7050 persons were arrested across India. During this period the conviction rate was only 2.19%. On September 16, 2020 the MHA provided rates of filing charge sheets. As per the NIA website, as of August, 2021, of the total 319 cases of UAPA handled by NIA only 69 cases (only 19% of cases) were filed during UPA regime while 250 cases i.e. 78% of all cases were filed during Modi regime. Out of the cases handled by NIA only 34% cases have some incident involving actual use of violence causing injuries. In about 66% cases involving 140 cases no actual violent incident is recorded. This is important because the UAPA is more and more being used, not for any actual act of violence, but in cases where there is allegation of conspiracy without actual violence having occurred. This is not just true of the Bhima Koregaon cases but also of various other cases. This gives a major handle in the hands of the Government to charge people without any substantive offence having taken place.

Second, in states where BJP is not in power, they have been using a combination of UAPA and the National Investigation Agency (NIA) Act in order to centrally control investigations and prosecutions and lead them in the direction which the Home Ministry wants them to go. Ordinarily investigations and prosecutions are conducted at the level of the State Government. In order to hand over investigation to CBI consent of the State Government is needed. The National Investigating Agency Act, 2008 however gives the power to Central Government to take over any investigation under specified laws (which include UAPA) and hand it over to the central body NIA. Furthermore, these cases are then tried in special NIA Courts. This is precisely what happened in the Bhima Koregaon case which was being investigated by the Pune Police when BJP was in power in the Maharashtra. Once BJP lost power the prosecution was snatched away and handed over to NIA. This body –the NIA– by and large, acts as the hand maiden of the Central Home Ministry. Thus the power that the Central Government exercises is increased a lot through this mechanism and the present regime has been resorting to this in highly amplified manner.

Third, we are presently dealing with a regime which is neutralising all institutions of accountability and virtually hollowing out democracy. Laws like UAPA,  NSA and sedition are but some of the weapons being used. But their present abuse needs to be placed in this larger context. Just to give a few examples, the Parliament has been undermined through doing away with the post of leader of the opposition, passing various laws as money Bills (including the AADHAR Act) and other means. NHRC has been compromised through changing the criteria for appointment of the Chairperson. We have seen erosion of independence of Election Commission, CBI, RBI, various Tribunals, Right to Information Act, Lokpal, etc. There is an increasing surveillance mechanism through AADHAR and now through NRC. Freedom of speech and expression is sought to be clamped down upon by various means such as doing away with Film Certification Tribunal, the newly formulated Information Technology Rules for intermediaries and web portals. The use of law by the present regime for any opposition is not just through draconian criminal laws but also by clamping down through laws such as FCRA, Income Tax and other raids, and other means. Any person who is seen as an opponent is hounded be it Sanjeev Bhat, RB Sreekumar, Justice Kureshi, or Natasha Narwal, Devangana or Asif Tanha and the many others who are still in jail. The authoritarian nature is  also is reflected in its increasing pandering to crony capitalism whether in terms of unprecedented privatisation, and allowing unbridled access to natural resources leading to unemployment and major displacement of Adivasis and the use of police powers to crush any protests.

Fifth, in addition to being highly authoritarian and centralising the present regime is also, for a use of a better word, proto-fascist in terms of its Hindutva ideology which by its very nature castiest, communal and patriarchal. While Muslims and Dalits have always been targets of the security legislations and even of the ordinary criminal law, the present regime takes this to the extreme. The hatred towards religious minorities is qualitatively different than any earlier regime. Whether it is abrogation of Article 370A, the passing of the CAA 2019 amendment, and the acute desire to implement NRC (National Register of Citizens) not just in Assam but across the country, the changes in history textbooks or sterner implementation of beef ban laws and anti-conversion laws (both of which also operate against Dalits, women and the minorities), and various other legislative, policy level and ground level actions determined to subjugate Muslims and Dalits, this regime is beyond anything ever done before.  In this context it is not at all surprising that the UAPA is used much more against Muslims and Dalits than any other sections of society.

Fifth, this regime is very selectively targeting human rights defenders and civil society activists in an attempt to crush voices of concern being raised either locally, nationally or internationally. The targets include students like in the anti NRC/ CAA protests or cultural activists, journalists, lawyers, academicians, Dalit and tribal rights activists, trade unionists as in the Bhima Koregaon case.

Sixth, specifically in terms of UAPA cases what is revealed from the Bhima Koregaon case is the attempt by the establishment to not just foist false charges but to actually plant electronic evidence which is a recent technique having far-reaching implications.

Seventh, again in UAPA cases to use the concept of frontal organisations to rope in wide ranging civil society organisations and indirectly ban them. While the UAPA itself does not even refer to frontal organisations, the schedule of banned organisations have and added phrase attached to some of these organisations ‘and all its frontal organisations’. These organisations are not even listed at any stage by the Government but in the Replies to Bail Applications and in the Charge Sheets they suddenly appear for the first time. To give an example in the Reply to Bail Application and in the charge-sheet of Father Stan Swamy, for the first time he said to be a member of various organisations such as People’s Union for Civil Liberties (PUCL), Persecuted Prisoners Network, etc. which are now called frontal organisations i.e. technically banned. The same strategy is used in charge sheets of others calling Kabir Kala Manch, Committee for Protection of Democratic Rights (CPDR), Indian Association of Peoples Lawyers etc. to be frontal organisations. The result being that all members are suddenly part of a banned organisation without such organisations having anything to do with the banned organisation or ever having been notified as such.

The judicial response

While a lot of focus presently is on the critique of the current response of the Supreme Court and its interpretation of laws such as UAPA, historically there has been no stage where the Supreme Court has played an overtly positive role concerning security legislations.

As mentioned above, preventive detention laws were upheld in 1950 under the Golak Nath case and in 1982 in the A.K. Roy’s case the Supreme Court Constitutional Bench (which included two of the most progressive Judges- Justice Bhagwati and Justice D.A. Desai) upheld the National Security Act, 1980 even going so far as to say that the detenue had no right to a legal Counsel and no right to cross examine.     While the amendment of Madras Government came to be struck down in 1952 in Row’s case it did not go the distance to strike down the 1908 Criminal Law Amendment Act. In 1961, in Kedar Nath’s  case sedition was upheld. AFSPA was upheld in the 1990s in the Naga Peoples case and so was TADA in the case of Kartar Singh. In the case of PUCL, POTA has been upheld. UAPA per se has not been challenged but looking at the way things have proceeded so far, it does not seem likely that it will be struck down by the Court.

While laws have not been struck down, the Supreme Court has from time to time diluted some of the effects (impact) of the law. In Row’s case the Supreme Court did hold that banning of organisation without providing a judicial oversight would not be permissible. In the sedition case, the Supreme Court while upholding its Constitutionality observed that sedition can be invoked only if it is linked with violence. In Kartar Singh’s case the Supreme Court ‘suggested’ that Review Committees be set up to ascertain if TADA provisions would be applicable or not. It further struck down Section 22 which allowed identification of accused through photographs rather than a test identification parade. However it upheld all other repressive provisions including the harsh remand and bail conditions as also those pertaining to burden of proof and confessions.

Thus in short the judicial response has been hardly positive. In 2011, the Supreme Court did hold in Arup Bhuyan’s case that mere membership of a banned organisation is not sufficient to implicate a person under UAPA. The Investigative Officers became smart and started adding active membership as a ground for implicating persons. The worst case was the Watali Judgment which effectively bars courts from granting bail to those charged under UAPA. It says that at the stage of bail the Court cannot look into admissibility of prosecutions’ case but has to believe it to be true. Some of the High Courts and Sessions Courts have been trying to get round this impossibility by using creative interpretations. In the case of Asif Tanha, Natasha Narwal and Devangana the Delhi High Court passed a brilliant judgment giving an extremely narrow interpretation to the term terrorist act and even re-interpreting Watali’s Judgment. However, though the three accused are out on bail the judgment has effectively been stayed by the Supreme Court and one will have to wait and watch as to how things proceed. Similarly the Bombay High court in Iqbal’s case interpreted ‘prima facie’ case against the accused in a broad manner releasing Iqbal on bail. Bombay High Court has also passed orders holding that since right to health of prisoners is a fundamental right, the UAPA under trials suffering from acute illness can be released on medical bail without applying stringent UAPA bail conditions. Supreme Court itself has held in Najeeb’s case that long incarceration coupled with likelihood of prolonged trial will entitle under trials under UAPA to bail. However, these are mere cracks in the system not always available not consistently available to the accused.

Conclusion

Laws such as UAPA have inbuilt abuse written all over them. They are not meant for tackling terrorism which can be easily tackled through other means. In fact, what is needed is law to tackle state terrorism but no steps are taken whatsoever to deal with this. India does not have an anti-torture law, there is no accountability of either the army or the police under AFSPA or UAPA.

TADA and POTA were removed to a large extent due to people’s protests. Both these laws were upheld by the Supreme Court but the abuse was so blatant and civil society so vocal that there was no option but to let them go. Though it is a difficult task there is no reason to believe that UAPA will not meet a similar end.

But one has to be prepared for a long and sustained battle. In the long run it is people’s protests and civil society’s remonstrations which will get rid of the law.

Related:

आतंक और क़ानून

UAPA must go – lock, stock and barrel: Senior Counsel Mihir Desai

Release Political Prisoners: CJP to Maharashtra CM

Delhi HC’s fitting reply to the criminalisation of dissent and protest

 

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