UAPA must go – lock, stock and barrel: Senior Counsel Mihir Desai Young leaders paid tribute to Gauri Lankesh, followed by a lecture on the draconian anti-terror laws
06, Sep 2021 | CJP Team
Gauri Memorial Trust and Citizens for Justice and Peace (CJP) had been organising a series of webinars since August 15, and yesterday on September 5, the last event titled, Bullets cannot kill Gauri Lankesh’s legacy was hosted in honour of the human rights defender. The webinar saw young student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha paying homage to Gauri Lankesh on her fourth death anniversary and discussing challenges faced by the country at present. This was followed by a special lecture delivered by Senior Counsel Mihir Desai on Terror Laws under a Proto-Fascist Regime.
The lecture started with CJP Secretary, Teesta Setalvad reading out tributes to Lankesh by lawyer-activist Jignesh Mewani and PhD scholar Banojyotsana Lahiri, and the introduction of the three student activists who were incarcerated for over 13 months for their alleged role in the Delhi violence conspiracy case.
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Asif Iqbal Tanha, a young student leader from Jamia Millia Islamia University, Delhi, at the outset immortalised Gauri Lankesh and said, “Gauri Lankesh was killed with bullets, but they failed to kill her soul or bury her ideology.” Tanha said that her ideas will live on, and activists like him will make sure to carry her legacy forward. Tanha said that the mysterious disappearance of JNU student Najeeb Ahmed, the gruesome Kathua rape case in 2017, and several instances of mob lynching pushed him into activism. But it was only the anti- CAA-NRC movement that mobilised young students like him into a sustained struggle to fight for their identity.
He also mentioned the important role and resistance of women in the demonstrations. He said, “The CAA-NRC movement mobilised all of us to fight for our identity and this also spread across the country. Women’s role in this movement has been prominent and they have beautifully driven it. Women don’t only run households well, they are capable of coming out on the streets and contributing to the nation and its development.” Tanha, who was charged under the anti-terror law Unlawful Activities (Prevention) Act (UAPA), said, “Several people are falsely booked under UAPA and there are many faceless, nameless ones, who we never hear about. They don’t have access to any legal assistance and today we should think about them also. People who are poor, talk about rights and who want to make this country a better place, are booked under this law.”
He urged the need for police reforms and proper legal aid. He ended his speech by saying, “Students, teachers, intellectuals are being put behind bars, and we are labelled as terrorists. Now, I fear delivering any speech. The fascist regime can edit my speeches out of context and make it look like I am working against the nation. We need to raise our voices against this fascist force. Hate crimes, women issues, caste violence, democracy, needs our attention. I will stand for my country, always.”
Devangana Kalita, a PhD student from JNU and Pinjra Tod co-founder, said that Gauri Lankesh was ‘frightening’ for the regime because she spoke and wrote about caste violence, and the Hindutva regime who routinely perpetuate hate in the name of religion. She remarked, “Hindutva ideology has a ‘Laxman Rekha’ (a boundary) for Hindu women, but Gauri Lankesh transgressed all of it.”
She further spoke about the ways the State is clamping down on the rights of essential workers who have been the backbone of India during the pandemic. “ASHA workers, Anganwadi workers not only work in their homes, they work for the entire nation, and the State has clamped down on their rights and their demands of fair wages,” she said. Kalita, who spent over 13 months in Tihar Jail under UAPA charges mentioned how the protests and resistance in the country against unjust laws and arrests kept her spirits high. She said, “After the Hathras gang rape and murder case, Siddique Kappan was arrested, and when we read about the protests against his arrest in jail, we felt so uplifted. We felt like everything was falling apart, but the demonstrations against such caste based sexual violence gave us so much hope.”
She ended by saying that now vigilante groups are harassing the youth, especially Muslim men under the garb of the anti-religious conversion laws, and that this is meant to dehumanise and demonise a particular community. She said how women’s choices are being impinged upon by the government. But she ended on a hopeful note by saying that Gauri’s ideas are flourishing in all domains – the streets, in our workplaces, and in our relationships. She said, “The regime is scared and has always been scared of people like Gauri, but we will continue to fight!”
Natasha Narwal, a PhD student in JNU said, “The very act of remembering Gauri is an act of resistance as the regime wants us to forget those who stood up to power and dissent, as if they never happened.” She spoke about their struggles and the increasing surveillance in the State. But according to her, the only way to struggle against this is to discuss and talk about the issues in the public domain, like Gauri Lankesh did. She said, “The regime wants us to forget about the beauty of our struggles. We see increasing state repression, we have spoken about it through some laws, UAPA is for people who speak to power. But we need to remember other ways too, where the regime is seeking control over ourselves, like the anti-conversion laws, where your everyday life, your choices, who do you love, especially for women, and the kind of surveillance that is increasing in our lives.”
She mentioned that there is an atmosphere of fear amongst everyone and an effective way to counter that is to keep the fight on. She added, “With the massive structural changes in the new educational policy is hampering our access to education. Things are becoming increasingly precarious by the day. This is part of the Hindutva model; we all feel vulnerable.” She recommended that one needs to adopt the methods of Gauri Lankesh, who constantly discussed issues, built alliances, and spoke truth to power.
Film maker, writer and Gauri Lankesh’s sister Kavitha Lankesh was also part of the online event and hailed the courage of the three activists. She said, “It was a sad day when I lost Gauri but these three youngsters have brought a smile to my face. If she were alive, Gauri would have adopted you all. You all are very inspiring!” She also expressed her anxiety about the misuse of UAPA and how young protesting students are put behind bars for raising their voice. She asked, “This is dangerous, how will our country grow?”
The City of Burnaby, Canada has declared September 5 as Gauri Lankesh day in honour of the slain journalist, who was gunned down by right wing extremists outside her Bengaluru home on the ill-fated date in 2017. To this, Kavitha said, “When people ask me how I feel about Gauri Lankesh day, I say that I feel happy and that now people know what she worked and stood for.”
UAPA in effect is a preventive detention law
CJP Secretary Teesta Setalvad then invited Senior Counsel and Human Rights activist Mihir Desai to deliver a lecture titled Draconian Terror Laws under a Proto-Fascist Regime. Desai started off the lecture by honouring Gauri and saying that she would have been battling this oppressive regime had she been alive today. Further, on Unlawful Activities (Prevention) Act, 1967 (UAPA), Desai stated that even though the legislation was enacted by the United Progressive Alliance (UPA) government, the ruling government has mastered the art of using it in a very targeted way.
Besides UAPA, Mihir Desai mentioned other stringent laws like the National Security Act (NSA) 1980, Armed Forces Special Powers Act (AFSPA) 1958, sedition provision (section 124A of the Indian Penal Code) and state laws like Maharashtra Control of Organised Crime Act (MCOCA) 1999 and Karnataka Control of Organised Crimes Act (KCOCA) 2000, that are being misused by the government.
He further explained how UAPA is in effect, a kind of preventive detention law that attempts to detain a person for a long period of time. “The main provisions of UAPA are such that it enables preventive detention of people for long periods of time. UAPA had started as a law that banned organisations but now it’s an anti-terror law,” he said.
He then highlighted the series of amendments to the anti-terror law that made it even more stringent and harsh. He said that earlier, organisations could be banned because of “hate speech” and “secession” but due to the 2004 amendment to UAPA, organisations can now be banned for “spreading disaffection against the country”. He added, “Disaffection is such a wide term, the same language is used in the sedition provision in the Indian Penal Code.” Further, through the 2013 amendment to UAPA, the ban period which was earlier for 2 years, was increased to 5 years.
On the issue of preventive detention, senior counsel Desai said that even though UAPA doesn’t mention the term preventive detention, it acts as preventive detention law because it provides for detention for more than a year. “Preventive detention has been brought in through the fundamental rights chapter in our Constitution which itself is shocking and should be opposed,” he said. Preventive detention law was extended every 2 years and was finally repealed in 1969 by a permanent law, The Maintenance of Internal Security Act, 1971 (MISA). He further explained that this law came under a huge cloud during the Emergency and was finally repealed. But in 1980, MISA took a new form and was enacted as the National Security Act in 1980 which allows for 1 to 2 years of detention. Desai said, “NSA allows detention on the basis that you “may” commit a crime in the future, that you “may” be a threat to public order, but not because you have committed a crime.”
He explained the history of preventive detention laws, because according to him, UAPA in effect operates as a preventive detention law where the detention lasts much longer than what NSA prescribes. He said, “The detention under UAPA lasts much longer, if you don’t have access to good legal assistance and a good judge in your favour.”
UAPA as an anti-terror law
The first major anti-terror law that was brought in, was the Terrorist Affected Areas (Special Courts Act) in 1984. This was then replaced by the Terrorist and Disruptive Activities (Prevention) Act (TADA) in 1985, which was a long-term anti-terror law, as per senior lawyer Mihir Desai. Under this act, he explained, the definition of terrorism was very vague and open to misuse. Under TADA, confessions to Police officers were made admissible and police remand under TADA was extended to 30 days instead of the stipulated 15 days under general criminal law. The bail provisions were also very strict, and the Judge had to come to the conclusion, before the trial even started, that the accused is not guilty in order to get bail.
Further, under the act, provisions for anticipatory bail were also done away with, and in some instances, the burden of proof shifted on the accused. NHRC had then recommended the repeal of TADA and eventually in 1995, TADA was dropped after widespread protests against its misuse.
Going back to the history of such laws, Desai explained that the collapse of the World Trade Centre and the Parliament attack in 2001, triggered the need to introduce a new and strict anti-terror law that eventually led to the enactment of Prevention of Terrorism Act, 2002 (POTA). The lawyer-activist then explained how bail was made strict under POTA as well, which led to huge protests and finally the UPA government repealed POTA in 2004.
Desai further explained that even though POTA was repealed, some of its provisions were added to the UAPA, 1967 via a backdoor method of amending the existing UAPA. So, UAPA which was not an anti-terror law, was made into one. “The banning of terrorist organisations, etc was brought in through the UAPA in 2004 but the harsh bail conditions were only brought in via a 2008 amendment to UAPA,” he said. Furthermore, in 2013, financial aspects were brought into terrorism charges and finally in 2019, the law was changed, by allowing individuals to be named as terrorists.
He summarised the contents of UAPA that deals with:
-unlawful association (s)
-terrorist activities by organisations or individuals
-terrorist organisations mentioned in the schedule of the Act.
Desai drew parallels between POTA, 2002 and UAPA, 1967 with respect to bail provisions. He said that under POTA, an accused person’s bail gets diluted after one year of incarceration and becomes subject to normal bail provisions for the remaining period of his/her trial, making it easier to get bail. But UAPA did away with this provision which instead provided that an accused person will be governed by the bail provisions of the act itself till the end of the trial.
Desai called UAPA a combination of “anti-terror law, preventive detention and banning of organisations”. He also claimed that the abuse of UAPA has increased substantially under the present government with a very low conviction rate. He referred to the data provided by the government during the budget session this year to state that the number of cases filed under UAPA is much more than what was filed during the Congress regime. He said that more than 5,000 cases were registered and more than 7,000 people were arrested under UAPA with only a 2.19 percent conviction rate between 2015 to 2019.
Investigations controlled by the Centre
Mihir Desai lastly explained how the National Investigation Agency (NIA), under the Centre takes over investigation of cases and in a way dominates the investigation of cases. He said that as per the latest data, in 66 percent of the cases that are dealt by the National Investigation Agency, people aren’t charged for any actual incident of violence or finding arms, but only on grounds of “conspiracy”. He referred to the Bhima Koregaon case, where human rights activists have been arrested because there was an alleged conspiracy.
The NIA Act was brought in 2008, by the UPA government but its use has been massive under the NDA government, claimed Desai. The NIA under the central government can take over the investigation of any case without the state government’s consent, which, according to Desai, is dangerous. He said, “The government is selectively targeting human rights defenders, civil society activists, and UAPA is being used as a weapon to advance the Hindutva project.”
The other alarming issue he highlighted was the planting of evidence in certain conspiracy cases. He said, “Now evidence is being planted, it’s not mere hacking or tracking them. Planting evidence is fabricating things, and that person gets arrested and is jailed for years”. He remarked that the earlier governments cannot absolve themselves from the responsibility of bringing about these laws but also blamed the present government for influencing investigations and its selective targeting of dissenters, Dalits and Muslims.
The learned human rights lawyer concluded the lecture by demanding the repeal of UAPA, which can happen through sustained campaigns of protests on the streets, the engagement of civil society and through talking to parliamentarians. “UAPA must go lock, stock and barrel. Civil society must raise its voices. I personally feel these draconian laws won’t go unless there are massive protests against it.”
Indian literary critic, Ganesh N. Devy offered the concluding remarks by praising the fearlessness, dignity and clarity of thought of young leaders like Asif, Natasha and Devangana. He said, “With such youngsters, I feel that the martyrdom of Gauri Lankesh, MM Kalburgi, Narendra Dabholkar and Govind Pansare will not be wasted.”
CJP will be publishing the entire text of the lecture soon.
The entire event may be viewed here:
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