Contents
Against the Very Idea of Justice, UAPA & Other Laws
Introduction 1. A Look at Repressive Laws in India 05 2. UAPA: A Brief History 42 3. Statistics: Increasing Arrests & Little Convictions 49 4. The Victims 52
5. A Law Contradicting with Indian Constitution 66 6. Need of the Hour: A United Effort 78 1. A Look at Repressive Laws in India
In India, several unconstitutional laws repress its citizens1 .
Indian lawmaking bodies have made, and continue to make, laws that neglect the fundamental rights of the citizens. Some laws have even blatantly violated those rights. The list of such laws, passed by both the parliament and the state legislatures, is not small.
Let's have a quick look at those extraordinary, unconstitutional Indian laws (except the UAPA, which is discussed in detail later): 1.1. Sedition law (Section 124A of Indian Penal Code, 1860) 1.2. Armed Forces (Special Powers) Act, 1958 1.3. National Security Act, 1980 1.4. Terrorist and Disruptive Activities (Prevention) Act, 1987 (Amended in 1989, 1993) 1.5. Prevention of Terrorism Act, 2002 1.6. Prevention of Money Laundering Act, 2002 1.7. The National Investigation Agency Act, 2008 1.8. Jammu & Kashmir Public Safety Act, 1978
Widespread misuse and contempt for human rights make these laws connected with each other.
While some national-level anti-terror laws, like the UAPA, directly attacked the human rights of the citizens,
1https://www.epw.in/engage/article/indias-unforgivable-laws
05 Against the Very Idea of Justice the AFSPA, a law active only in a few states, did the same with giving chilling impunity to armed forces involved in different forms of violence, including extrajudicial killings.
There have been several cases of rights violation related to these laws, which have been invoked against innocent civilians, human rights activists, religious minorities and other marginalised communities, government critics and others.
06 Against the Very Idea of Justice There have been aws not only within the wordings and draft of these laws but also in how the law-enforcement agencies and courts behave while handling cases under these laws.
Judicial trial of most of these cases lasts for several years, even as the accused languish in jails. Some laws, like the AFSPA, also prevent even the beginning of the trials. The AFSPA has caused widespread human right abuses in places like Jammu & Kashmir and Assam2 , with members of the armed forces, accused of different crimes like murder and rape, enjoying greater impunity3 . A recent report said that the central government refused to approve even a single recommendation in the last 20 years, during which the J&K government sent 50
2https://www.livemint.com/Politics/CcFJoIMR39wtQwiIoIfi3O/Jammu--Kashmir- tops-list-on-rights-abuses-under-AFSPA-Assa.html 3https://thewire.in/rights/cic-jammu-and-kashmir-afspa
07 Against the Very Idea of Justice requests for prosecution sanction against the members of armed forces, under the AFSPA law4 . Yes, not in a single case out of 50 recommended by the state government.
While tens of thousands of innocent people have been jailed in the country under various draconian laws, the conviction rates of these laws are incredibly low - be it UAPA5 , Sedition6 , POTA7 or TADA8 . These low rates further prove the veracity of the misuse of these laws. The issue is even more serious because those who suffer most due to these abuses are members of the marginalised communities. The Centre recently informed
4https://www.outlookindia.com/website/story/in-20-years-centre-denied- prosecution-sanction-under-afspa-in-all-cases-recommen/307132 5https://www.thehindu.com/news/national/22-of-cases-registered-under-the-uapa- from-2016-2019-ended-in-court-conviction/article33804099.ece 6https://www.business-standard.com/multimedia/video-gallery/general/1- conviction-rate-in-140-sedition-cases-in-6-years-rajya-sabha-mp-120179.htm 7https://www.epw.in/journal/2003/29/commentary/pota-freedom-terrorise.html 8https://www.barandbench.com/columns/the-cases-that-india-forgot-how-tada- legitimised-police-excesses-as-the-supreme-court-stood-by-silently
08 Against the Very Idea of Justice the parliament that more than 65 per cent of the prisoners9 in the country belong to Dalits, Adivasis and Other Backward Classes. 3,15,409 jail inmates in the country, out of the total 4,78,600, belong to these social groups. Most of these unconstitutional laws were designed with protectionist rhetoric against threats that, in many instances, did n o t exist. But, as noted by one EPW article10 , what these laws served was to protect the ruling dispensation's ability to bypass the fundamental rights of the citizens. “There is a need to conceptualise these laws in terms of what they purportedly combat, and what they actually combat,” the article said.
9https://economictimes.indiatimes.com/news/politics-and-nation/3-15-lakh-or-65- 90-prison-inmates-from-sc-st-obc-categories-govt-data/articleshow/80787575.cms 10https://www.epw.in/engage/article/indias-unforgivable-laws
09 Against the Very Idea of Justice 10 Against the Very Idea of Justice 1.1. Sedition law (Section 124A of Indian Penal Code, 1860)
Section 124Aof Indian Penal Code (IPC), which deals with 'sedition', is perhaps the oldest among Indian laws that are being widely criticised for their nature as well as for misuse. Many got jailed under this law for committing the 'crime' of criticising the government of the day.
Those who were arrested under the sedition law include university students11 , political leaders12 , journalists13 , young environmentalists14 , and even parents and teachers of young artists15 .
Curiously, the list of those who were 'convicted' under this law in pre-independent India even has some of the great names in modern India, like Mahatma Gandhi, Jawaharlal Nehru, Maulana Abul Kalam Azad, Annie Besant, Bal Gangadhar Tilak etc.
There is a particularly dangerous pattern in how this law is being (mis)used against government critics, as identical police cases are being charged against the
11https://thewire.in/rights/my-impressions-of-the-sedition-accused-students-of-jnu 12https://www.thehindubusinessline.com/news/national/opposition-condemns- sedition-case-against-tharoor-journalists/article33693891.ece 13https://www.reuters.com/article/us-india-farms-protests-journalists- idUSKBN2A11I8 14https://indianexpress.com/article/india/disha-ravi-bail-hearing-greta-thuberg- toolkit-case-farmers-protest-delhi-police-7197022/ 15https://scroll.in/latest/953180/karnataka-sedition-case-parent-and-teacher- granted-bail-after-two-weeks-in-jail-over-anti-caa-play
11 Against the Very Idea of Justice accused in different states. This is what JNU researcher Sharjeel Imam1 6 , politician Shashi Tharoor, and several journalists17 had to face recently.
Several human rights bodies18 , news organisations19 , legal experts20 and even senior judges21 demanded to reform or repeal this law.
Perhaps the last in the list of prominent gures who demand the repeal of this law is Justice Deepak Gupta, a recently retired judge of the Supreme Court. Justice Gupta said that the sedition law should be “immediately abolished”.22 He said the law is being used by governments to create fear in the citizenry. The former SC judge also opined that the law is widely misused.
1860 1958 1978 1980 1987-93 2002 2008 1969-2019 Sedition AFSPA J&K Public NSA TADA POTA NIA UAPA Law Safety
Repressive Laws in India
16https://thewire.in/rights/sharjeel-imam-sedition-charges 17https://indianexpress.com/article/india/sedition-firs-against-tharoor-journalists- now-in-five-states-7168390/ 18https://www.hrw.org/news/2011/01/05/india-repeal-sedition-law 19https://www.thehindu.com/opinion/editorial/Repeal-the-sedition- law/article14691554.ece 20https://frontline.thehindu.com/the-nation/article30913046.ece 21https://www.thestatesman.com/opinion/repeal-sedition-law-128201.html 22https://thewire.in/government/watch-karan-thapar-justice-deepak-gupta- supreme-court-sedition-disha-ravi
12 Against the Very Idea of Justice Sedition law is being widely misused to silence political critics. A research carried out by 'Article 14' revealed that 405 Indians were booked for sedition over the last decade, only because they criticised politicians and governments23 . Notably, 96% of these sedition cases were registered after 2014. W h i l e 149 persons were booked for making “critical” and/or “derogatory” remarks against Modi, 144 others faced the charge for criticising the UP chief minister Yogi Adityanath.
Most of the cases in which the sedition law has been invoked also violate a landmark Supreme Court judgment on the use of this law. A Constitution Bench of the SC, in the Kedarnath vs State of Bihar case in 196224 , famously ruled that only those acts which involve incitement to violence or violence itself, constitute a seditious act25 .
Under the sedition law, anyone whose expression brings “hatred or contempt towards the government” shall be punished26 . The section says the same provision will apply to those who excites or attempts to excite disaffection towards the government. The word
23https://www.article-14.com/post/our-new-database-reveals-rise-in-sedition-cases- in-the-modi-era 24https://indiankanoon.org/doc/111867/ 25https://thewire.in/law/sedition-challenged-in-supreme-court 26https://indiankanoon.org/doc/1641007/#:~:text=%E2%80%94Whoever%2C%20 by%20words%2C%20either,be%20punished%20with%20104%20%5Bimprisonm ent
13 Against the Very Idea of Justice 'disaffection' includes “disloyalty and all feelings of enmity”, according to the law.
However, the section further says that comments criticising the government “without exciting or attempting to excite hatred, contempt or disaffection” is not an offence under this section.
Critics of this law point out how the law is being interpreted conveniently by the people in power and being used to target dissenting voices.
14 Against the Very Idea of Justice 1.2.Armed Forces (Special Powers) Act, 1958
The Armed Forces (Special Powers) Act, 1958, or 'AFSPA', is a law that is in effect in selected states and regions, like Manipur and Jammu and Kashmir. The AFSPA is a law that has great potential for large-scale human rights violations, and it indeed caused such violations. The Indian parliament passed three AFSPA laws, meant for three different, 'disturbed' regions. The rst one, passed in 1958, was meant for seven northeastern states. The second AFSPA law was passed in 1983 to implement in Punjab and Chandigarh. The parliament enacted the third AFSPA law in 1990 and implemented it in Jammu and Kashmir. While the AFSPA enacted for Punjab and Chandigarh was eventually withdrawn in 1997, the other two AFSPA laws are still in effect. Presently, the AFSPA is active in Jammu and Kashmir, Assam, Nagaland, Manipur (except one Municipal area),
15 Against the Very Idea of Justice and three districts and eight police station jurisdictions of Arunachal Pradesh27 . Both AFSPA laws (1958, 1990) are small in size as these laws have only seven and eight sections respectively, with identical provisions. However, even though being small, these laws caused enormous sufferings for thousands of innocent people, as the armed forces grossly misused the provisions and killed, raped, and abducted civilians and destroyed their properties. Some regions, like Kashmir and Manipur, witnessed more violence by the armed forces misusing the provisions of this Act. The AFSPA gives the central government power to declare certain regions, or even an entire state, as “disturbed areas”. This can be done by the central government even without the consent of the state government.
Section 4 of the Act gives the armed forces - any ofcial in the rank of warrant ofcer, non-commissioned ofcer or above - the power to kill anyone if the ofcer thinks that it is necessary to do so for “the maintenance of public order”. The AFSPA also gives the armed forces the power to destroy any building, including houses, “from which armed attacks are made or are likely to be made or are attempted to be made”. Buildings “used as a training camp for armed volunteers or utilised as a hide-out by
27https://pib.gov.in/Pressreleaseshare.aspx?PRID=1559119
16 Against the Very Idea of Justice armed gangs or absconders wanted for any offence” can also be destroyed by the armed forces.
The armed forces can also arrest any suspected person, or enter and search any suspected place, without a warrant. The forces also have nearly absolute freedom to stop, seize and search any vehicle that they want, and break open any lock.
Additionally, it mentions no specic time frame for the arrested person to be produced at the nearest police station. The law only says that the arrested person should be produced “with the least possible delay”.
The law further stipulates provisions that offer greater impunity to the military men involved in the actions taken under the Act. This resulted in even greater misuse of the Act and widespread human right abuses.
“No prosecution, suit or other legal proceedings shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act,” the Act says.
Human rights groups have already recorded large-scale rights violations committed by armed forces in the
17 Against the Very Idea of Justice regions where the AFSPA is active, like Manipur28 and Kashmir29 . Several national and international human rights organisations, and ofcials, have also called for the repeal of this law30 .
28https://www.hrw.org/news/2018/04/12/india-manipur-victim-families-activists- harassed 29https://thewire.in/rights/jammu-kashmir-torture-report-armed-forces-jkccs 30https://www.hrw.org/legacy/backgrounder/2008/india0808/india0808.htm
18 Against the Very Idea of Justice 1.3.National Security Act, 1980
The National Security Act (NSA) is yet another draconian law in practice in India.
According to the Act, the central government or the state government can detain any person if the government is of the view that the person will act in any manner prejudicial to the “defence of India, the relations of India with for eign powers, or the security of India”. The detenti on under the NSA can last up to 12 months, without any charge against the detainee.
This “preventive detention” law has a history of widespread misuse, including against political opponents.
According to senior human rights activist Ravi Nair, the NSA's preventive detention regime has become “a convenient tool to obscure the aws in the Indian criminal justice system and deprive individuals of their constitutional and statutory rights” 31 .
Of late, the NSA has been misused to target peaceful civilian protesters and alleged illegal cow smugglers and cow slaughterers - a “serious crime” in many BJP-ruled states.
31https://thewire.in/caste/national-security-act-obscuring-flaws-indias-criminal- justice-system
19 Against the Very Idea of Justice For example, a recent report said that the Uttar Pradesh state government, which has already been known for its utter disregard for human rights and rule of law and discriminatory actions against Muslims and Dalits, has invoked the NSA in several incidents of cow slaughter and anti-CAA protests.
Between January and August 2020, the UP Police had invoked the NSA against 139 people in the state, and 76 of them were booked for cow slaughter32 .
Among other NSA detainees, 13 were arrested for their alleged links with anti-CAA protests.
32https://indianexpress.com/article/india/in-uttar-pradesh-more-than-half-of-nsa- arrests-this-year-were-for-cow-slaughter-6591315/
20 Against the Very Idea of Justice Earlier, noted independent journalist Neha Dixit had reported on how the UP police invoked NSA against 160 people, within one year since Yogi Adityanath became the chief minister33 . Her report revealed that the law has been widely misused against Muslims by the UP police.
33https://thewire.in/rights/in-adityanaths-up-the-national-security-act-is-latest- weapon-against-muslims
21 Against the Very Idea of Justice 1.4.Terrorist and Disruptive Activities (Prevention) Act, 1987 (Amended in 1989, 1993) The Terrorist and Disruptive Activities (Prevention) Act, or 'TADA', was rst passed in 1987 and amended in 1989 and 1993. It was later repealed, and 'replaced' by 'POTA', similar draconian legislation. TADA was instituted in the mid-80s when separatist movements gained momentum in the country, especially in Punjab. At least 75,000 people were arrested under this law. While 25 per cent of the TADA cases were dropped by the police without any charges being framed, only 35 per cent of the cases were brought to trial. The conviction rate of the TADA cases was strikingly low - less than two per cent. Under this act, a person could be detained for up to 1 year without formal charges or trial against him. The Act also says
22 Against the Very Idea of Justice that the police can detain an arrested person and keep him under custody for up to 60 days, which incr eases the risk of custodial torture. The detainee need not be produced before a judicial magistrate. The trial process can keep the identity of the witnesses secretly, if the ofcials want to do so, thus violating another international standard of a fair trial.
The Act also violates the presumption of innocence of the accused. Under the TADA, accused persons were presumed
23 Against the Very Idea of Justice guilty until they were proved innocent. Also under the Act, confessions being made by the accused before police ofcers were given the evidence value, which raised enhanced fear of, and potential for, custodial torture.
There were serious allegations that in the guise of ghting terrorism, the law was being used to detain members of the marginalised communities and trade unions.
24 Against the Very Idea of Justice 1.5.Prevention of Terrorism Act, 2002
The Prevention of Terrorism Act, 2002, or 'POTA' was the successor of the TADA.
The parliament passed the POTA in 2002 and repealed it in 2004 due to widespread criticism. However, the draconian provisions of the POTA were given new birth through the amendment in the UAPA in 2008.
According to the POTA, a confession made to the police is admissible as evidence during the trial. The POTA also allow the trial court to keep the identity of the witness secret.
The POTA was also misused widely and attracted criticism, forcing the ruling Congress-led alliance not to reintroduce the law.
Unlike many other anti-terror laws, one good provision that the POTA had was its 'sunset clause'. According to Section 1(6) of the Act, the law “shall remain in force for three years from the date of its commencement”.
During the months when the POTA was in effect, several hundred individuals were arrested under this law, in various states. Some of the prominent gures who were charged under the POTA are Tamil politician and parliamentarian Vaiko, Delhi University faculty S.A.R. Geelani and Kashmiri leader Syed Ali Shah Geelani.
The POTA was introduced by the BJP-led National Democratic Alliance in the wake of the attacks on the World Trade Center in 2001.
25 Against the Very Idea of Justice The POTA was passed by in a Joint Session of the Parliament, despite stiff opposition from civil society members. The POTA had several provisions that were similar to the provisions of TADA.
POTA incorporated TADA's enhanced police powers, limits on the rights of defence, confessions made in police custody admissible as evidence and setting up of Special Courts.
Like laws before it, POTA dened “terrorist” and “terrorist activities” vaguely. This allowed for discriminatory applications. For example, as Bhamati Sivapalan and Vidyun Sabhaney wrote, “a law like POTA has never been used against Hindu nationalist groups suspected in terror attacks against minority communities”34 .
Many observers considered POTA to be more draconian than its predecessor TADA, because of its vague denitions of the terms and enhanced powers guaranteed to security forces. Many also raised questions on the real intention of the Hindutva government under prime minister Atal Bihari Vajpayee, which enacted the law, as the law was widely used to terrorize and demonize the Muslims and other
34https://thewire.in/law/in-illustrations-a-brief-history-of-indias-national-security- laws/
26 Against the Very Idea of Justice minorities. The promulgation of the law was accompanied by a ban on a few Muslim and left organizations, with little evidence for the offences they committed. Notably, POTA was hardly used against any extremist Hindu groups having a suspected role in the terror attacks on minority communities.
27 Against the Very Idea of Justice 1.6.Prevention of Money Laundering Act, 2002 The Prevention of Money Laundering Act, 2002, or PMLA, is a law that is supposed to ght illegal gathering and transactions of money. However, in recent years, particularly under the Narendra Modi government, the law has become an ofcial tool to weaken, and in some cases to silence, political opponents and non- governmental organisations critical of the government.
The PMLA Act says that the top ofcers appointed under this law have judicial powers. According to Section 50 of the law, the top ofcial has the “same powers as are vested in a civil court under the Code of Civil Procedure, 1908”. This is very problematic and has great potential for misuse, as all the ofcers under this law are to be appointed by the central government. In other words, this law offers judicial powers to certain bureaucrats, appointed by the government.
The Enforcement Directorate, a central government agency originally formed in 1956, has been entrusted to take actions under this law35 .
The PMLA allows room for the government to control the ofcers appointed under this law. The Act, under Section 52, states that the central government “may, from time to time, issue such orders, instructions and directions to the authorities as it may deem t for the proper administration of this Act”.
35https://www.enforcementdirectorate.gov.in/organisational_ history.html?p1=1212261616752823826
28 Against the Very Idea of Justice Under the PMLA, the Enforcement Directorate ofcers can summon “any person” and ask to produce any records that the ofcer wants as part of any investigation/proceeding. The ofcers can also enter and search “any building, place, vessel, vehicle or aircraft” and “seize any record or property found as a result of such search”. The ofcers can also destroy the lock of any door, box, locker or shelf for exercising the powers conferred by this law. The ofcers can also search any person, seize any record from him/her, and arrest him/her.
Like some other draconian laws, this law also states that the 'burden of proof' lies with the accused. The law, under Section 24, says that the authorities/court can “presume” that a crime is committed by the person charged under this law, “unless the contrary is proved”.
Another contentious provision in the law is about the formation and powers of “Adjudicating Authorities”. Section 6 of the law says that the 'adjudicating authority' need not be bound by the procedure laid down by the Code of Civil Procedure, 1908. Instead, it “shall be
29 Against the Very Idea of Justice guided by the principles of natural justice” and “shall have powers to regulate its own procedure”.
During the Modi regime, senior leaders of almost all the opposition parties had to witness ED ofcials raiding their homes or ofces, as they were all targeted under the PMLA.
In the recent past, the money laundering law has been invoked against NCP chief Sharad Pawar36 , RJD chief Lalu Prasad Yadav37 , Congress party head in Karnataka D.K. Shivakumar38 , the party's late senior leader Ahmed Patel39 , former chief ministers of Jammu & Kashmir Farooq Abdullah40 and Mehbooba Mufti41 , several Trinamool Congress leaders and activists, DMK MP S. Jagathrakshakan42 , and son of former Kerala CPI (M) secretary Kodiyeri Balakrishnan43 .
36https://www.newindianexpress.com/nation/2019/sep/24/ed-files-money- laundering-case-against-ncp-leader-sharad-pawar-ajit-pawar-2038537.html 37https://www.hindustantimes.com/india-news/enforcement-directorate-files- chargesheet-against-lalu-family-in-irctc-hotels-case/story- OiVZem5oGoYI1w8MRUB1UJ.html 38https://indianexpress.com/article/india/ed-arrests-congress-d-k-shivakumar- under-pmla-5963030/ 39https://www.hindustantimes.com/india-news/ed-questions-congress-leader- ahmed-patel-for-4th-time-in-pmla-case/story-xFU5rv3TddE85BLRmdx38H.html 40https://indianexpress.com/article/india/farooq-abdullah-ed-jkca-money- laundering-7111530/ 41https://thewire.in/politics/central-agencies-misused-to-hound-opposition- mehbooba-mufti-after-ed-interrogation 42https://www.deccanherald.com/national/south/ed-attaches-properties-worth-rs- 89-crore-of-dmk-mp-jagathrakshakan-in-money-laundering-case-886404.html 43https://www.news18.com/news/india/ed-files-preliminary-chargesheet-against- bineesh-kodiyeri-3-others-in-money-laundering-case-3222929.html 44https://thewire.in/politics/central-agencies-misused-to-hound-opposition- mehbooba-mufti-after-ed-interrogation 30 Against the Very Idea of Justice Many political leaders also stated in public how the Modi government misuses the PMLA, with the help of professionally weakened government agencies, to criminalise and silence the dissent. For example, Mehbooba Mufti recently said, “dissent has been criminalised in this country. The ED, Central Bureau of Investigation and the National Investigation Agency are being misused to silence the opposition tactically”44 . The former Jammu & Kashmir chief minister said this after she was interrogated by the ED ofcials in a PMLA case.
A good example of the misuse of the PMLA against social organisations is the case of the Popular Front of India (PFI), a Muslim organisation that has faced harassment under the law45 . It should be noted that the PFI, like most of the other targets of the PMLA, has been critical of RSS- BJP and policies of the Narendra Modi government.
45https://thewire.in/government/ed-charges-popular-front-of-india-its-student- wing-with-money-laundering
31 Against the Very Idea of Justice 1.7.The National Investigation Agency Act, 2008 The National Investigation Agency Act, or the NIA Act, originally enacted in 2008 during the Congress-led UPA government, and later amended in 2019 by the Modi government, has been one of the laws used by the Centre not only to violate the human rights of the citizens but also challenge the foundation of the country's federal system, in the name of combating terrorism. The NIA Act paved the way for the formation of the National Investigation Agency, which is currently India's topmost “anti-terrorism” institution. The Act, however, did not just constitute an investigation agency, but left a scar in India's federal system, as the agency, which comes under the direct control of the central home ministry, has been given the power to act as a “police force with pan India jurisdiction”. The Act, under Section 3, says: “Any ofcer of the Agency of, or above, the rank of Sub- Inspector may, subject to any orders which the Central Government may make in this b e h a l f , e x e r c i s e throughout India, any of the powers of the ofcer-in- charge of a police station in the area in which he is present for the time being and when so exercising such powers shall, subject to any such orders as aforesaid, be deemed to be an ofcer-in charge of a police station discharging the functions of such an ofcer within the limits of his station”46 .
46https://indiankanoon.org/doc/4472878/ 32 Against the Very Idea of Justice The agency is also entrusted to probe offences under certain provisions of a couple of other laws – the Arms Act and the IT Act -- and several other IPC Sections. So if any police station in the country registers a case under the provision of these specied Acts or IPC Sections, the same should be informed to the state government, and then to the central government, “as expeditiously as possible”47. After that, the central government will decide “whether it is a t case to be investigated by the Agency”. Notably, once the central government decides that a case should be probed by the NIA, then the police or any other state government agency that is probing the case should stop its probe and hand over the relevant records to the NIA, according to Section 6 of the Act. In other words, the NIA Act challenges the powers of the state governments and their police forces to investigate an offence that took place within their jurisdiction. This violates the principles of federalism. In a recent analysis published in The Wire, former NIA public prosecutor Abdul Khader Kunju has explained how the handing over of UAPA cases to the National Investigation Agency affects the country's federal system48 .
47https://indiankanoon.org/doc/128858156/ 48https://thewire.in/government/uapa-nia-act-centre-state
33 Against the Very Idea of Justice The NIA Act also makes sure that any ofcer, who misuses the law or intentionally targets innocents, is not sued or punished. Section 18 of the Act says that “no prosecution, suit or other legal proceedings shall be instituted in any court of law, except with the previous sanction of the Central Government, against any member of the Agency or any person acting on his behalf in respect of anything done or purported to be done in exercise of the powers conferred by this Act.” Though the NIA Act is relatively a recent legislation, the 'anti-terror' agency formed by the Act, with the already existing draconian laws like the UAPA, had already ruined the lives of thousands of innocent people within this short span of time.
34 Against the Very Idea of Justice In a recent interview with the Frontline magazine, Rebecca Mammen John, a senior Supreme Court advocate, said the Manmohan Singh-led United Progressive Alliance government introduced the latest UAPA Amendment Bill and the National Investigation Agency Act instead of learning from “the tragic tales of misuse of laws like TADA and POTA”. “Both these legislations are now being weaponised against Indians who may have a viewpoint different from the government,” she said49 . Advocate John, who handled several UAPA-NIA cases, also called for “consistent judicial interventions and a larger public debate about the draconian nature” of both the UAPA and NIA laws, in order to ensure that these laws are promptly repealed. “All governments have a tendency to curb dissent and free speech, and without institutional protection, citizens will always be at risk,” she warns. The National Investigation Agency has also been criticised for its 'soft stand' on some real criminals, as well. For example, in 2015, Rohini Salian, Special Public Prosecutor in a case related to the Malegaon blasts in 2008, in which four Muslims were killed and a group of Hindu extremists are the accused, said that the NIA was forcing her to go “soft” in the case since the BJP government came to power50 .
49https://frontline.thehindu.com/cover-story/how-the-uapa-and-the-nia-are- used-to-crush-dissent-interview-rebecca-john/article34119060.ece 50https://indianexpress.com/article/india/india-others/since-this-new-govt-came- i-have-been-told-to-go-soft-on-accused-hindu-extremists-special-public- prosecutor/
35 Against the Very Idea of Justice 1.8. Jammu & Kashmir Public Safety Act, 1978
The Jammu and Kashmir Public Safety Act, 1978, or simply the Public Safety Act (PSA), is perhaps one of the two draconian laws that caused immense suffering for the people of Jammu & Kashmir. The other one is AFSPA.
The PSA allows the government to hold any person under preventive detention in the name of “security of the State” and “maintenance of the public order”.
According to the law, a person can be detained if s/he was “making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force” which “disturbs or is likely to disturb public order”. This provision can literally criminalise any political activity in a state where the people have long felt that their political aspirations have been silenced by undemocratic means.
According to the law, a person who is perceived to be a threat to “maintenance of public order” or “security of the State” can be detained for up to one year and two years, respectively. Such long detentions, notably, take place without trial.
36 Against the Very Idea of Justice Within days after the BJP government's unilateral abrogation of Kashmir's special status on August 05, 2019, more than 4,000 people were arrested under this law51 . This single fact explains the draconian nature of the PSA. Those who had to spend months in detention following the August 05 abrogation include former chief ministers and hundreds of other political activists.
In 2015, the government disclosed that 16,329 persons had been detained under the PSA since 198852 .
A former chief minister and serving parliamentarian Farooq Abdullah, being booked under the PSA, had to spend more than seven months in detention53 . Similarly, other former chief ministers Mehbooba Mufti and Omar
51https://www.huffpost.com/archive/in/entry/kashmir-4000-people-arrested- august-5-says-report_in_5d5a54e6e4b056fafd0e25e9 52https://thewire.in/rights/psa-detentions-kashmir 53https://thewire.in/rights/farooq-abdullah-psa-detention-revoked
37 Against the Very Idea of Justice Abdullah were detained for 14 months54 and 232 days55 , respectively, under the PSA.
In 1982, the Supreme Court judgment called the PSA “a lawless law”56 , and recent reports say that even minors are being detained under this Act57 .
The law also allows the government to declare any area as 'prohibited' o r ' p r o t e c t e d ' , a n d restrict the entry and activities within that area.
J o u r n a l i s t I p s i t a Chakravarty, in her recent analysis of the PSA, explained how this law has violated the rights of Kashmiris. She said the law gave power to the authorities to act with “minimum judicial oversight”. She wrote: “This is detention without trial and minimum judicial oversight – the courts have often quashed detention orders, only for the administration to issue a fresh order.
54https://indianexpress.com/article/india/mehbooba-mufti-released-from-detention- 6723785/ 55https://thewire.in/rights/omar-abdullah-psa-released 56https://scroll.in/article/817809/in-kashmir-a-law-for-timber-smugglers-has- become-a-way-to-keep-people-out-of-circulation 57https://scroll.in/article/939516/in-kashmir-boys-aged-14-and-16-held-under- dreaded-public-safety-act-and-sent-to-uttar-pradesh-jails
38 Against the Very Idea of Justice The authorities are not required to provide grounds for detention for ve to 10 days after the prisoner is held. They may not disclose them at all if it is felt to be against the public interest.”58
According to A.G. Noorani, a well-known jurist, the PSA has “wreaked havoc” in Kashmir in the last four decades. He said the law is “patently, manifestly and demonstrably unconstitutional”.59
***
58https://scroll.in/article/952478/detentions-under-psa-show-kashmir-remains-in- state-of-exception-despite-modi-governments-claims 59https://www.greaterkashmir.com/news/opinion/gk-exclusive-the-menace-of-psa/
39 Against the Very Idea of Justice This list of undemocratic laws in democratic India is incomplete. There are still many repressive Acts – passed by either the parliament or state assemblies -- that are not discussed here. Those laws include the Prevention of Money Laundering Act, 2002, or PMLA, and the so- called 'anti-conversion' laws enacted by different BJP- dominating state assemblies, like Uttar Pradesh, Himachal P r a d e s h a n d M a d h y a Pradesh60 .
While the PMLA has been used against political opponents and human rights organisations, the anti- conversion laws have been used to harass individuals who choose their own lifestyle or partner, without the 'consent' of the government.
These 'anti-conversion' laws are being enacted following the 'love jihad' paranoia and propaganda of Hindutva elements, and news reports are now revealing widespread, violent misuse of these laws targeting religious minorities
For example, a Muslim teenage boy was arrested for walking with his Hindu friend61 , and a young couple had to face violence, miscarriage and arrest.62
60https://indianexpress.com/article/explained/religion-conversion-bill-bjp- 7129285/ 61https://thewire.in/communalism/muslim-teenager-in-up-arrested-under-love- jihad-law-for-walking-with-a-hindu-friend 62https://thewire.in/communalism/up-moradabad-interfaith-couple-miscarriage- bajrang-dal
40 Against the Very Idea of Justice As already expected by several observers, most of the accused (in fact, victims) in these cases have been Muslims63 . The Uttar Pradesh government, which 'lead' other BJP-led states on this, registered 14 cases in the rst month of the law. Out of which 13 cases were registered against Muslims64 . Altogether, 49 persons were jailed in the rst month of the law.
Even though there are rays of hope, with public criticism65 and judicial intervention66 in some cases, they are not enough, as the laws continue to pose a huge challenge, and potential violence, to anyone who wants to live a life of their own.
63https://www.theguardian.com/world/2020/dec/14/muslims-targeted-under-indian- states-love-jihad-law 64https://indianexpress.com/article/india/love-jihad-law-up-police-7124001/ 65https://thewire.in/media/bjp-love-jihad-newspaper-editorials 66https://www.barandbench.com/news/litigation/allahabad-high-court-comes-to- aid-of-inter-faith-couple
41 Against the Very Idea of Justice UAPA: A Brief History
The Unlawful Activities (Prevention) Act, or UAPA, was originally passed in 1967, when Indira Gandhi was the prime minister, for “more effective prevention of certain unlawful activities of individuals and associations”.
Since then, the country has witnessed a gradual evolution of the UAPA with a number of amendments – in 1969, 2004, 2008, 2012 and 2019.
The government added stricter provisions into the act with each amendment, which, in turn, further weakened the fundamental rights guaranteed by the Constitution.
“The evolution of Unlawful Activities (Prevention) Act (UAPA) has to be seen in the background of ... gradual but steady constriction of Article 19, which guarantees the fundamental freedoms of expression, assembly and association,” wrote activists Arun Ferreira and Vernon Gonsalves67 .
Unlike some other “anti-terror” laws like TADA and POTA, the UAPA does not have a 'sunset clause' -- a clause that talks about the expiry of the law once its stated objectives are met.
So, when some old draconian laws with a 'sunset clause' were repealed after widespread criticism, the government quietly incorporated the controversial provisions in those draconian laws into another law (UAPA) that has no 'sunset clause'. In other words, the
67https://thewire.in/rights/uapa-anti-terrorism-laws
42 Against the Very Idea of Justice people of India were being silently deceived when each new undemocratic clause, borrowed from previously repealed draconian laws, were added into the UAPA.
“Even if one were to buy the 'desperate times call for desperate measures' logic, where a restriction to fundamental rights is reasonable given the extraordinary situation of a threat of terrorism, one cannot justify the absence of a sunset clause in the UAPA. The justication for the inclusion of a sunset clause in previous extraordinary acts like TADA is that when there is a drop in the perceived threat, there would be no need of the legislation,” according to Ferreira and Gonsalves.
43 Against the Very Idea of Justice The UAPA Act gave power to the central government to simply ban any organisation after announcing it as 'unlawful'. Even though the original 1967 Act had provision for a tribunal to review or to hear an appeal against the ban, this remained a mere farce, as was seen in the case of SIMI, Ferreira and Gonsalves wrote. A reason behind the enactment of the UAPA in 1967 was the threat posed by the DMK party contesting elections in Tamil Nadu by including the secession of Tamil Nadu from India in their manifesto68 . The rst major amendment on the UAPA came in 2004, in the wake of the repeal of the short-lived The Prevention of Terrorism Act, 2002, or the POTA, which was enacted following the Parliament attack in 2002. The POTA was another draconian law that had to be withdrawn within two years, after widespread public outcry against its misuse. The repeal of POTA was an election promise of the then newly elected Congress government. The amended UAPA made signicant changes in the denition of 'unlawful activity', and included the denition of 'terrorist act' and 'terrorist organisation' from the repealed POTA. Observers point out that many newly added provisions, especially those dealing with 'punishment for terrorist activities', 'forfeiture of proceeds of terrorism' and 'terrorist organisations' were heavily borrowed from the repealed POTA.
68https://thewire.in/rights/uapa-anti-terrorism-laws
44 Against the Very Idea of Justice The 2004 amendments also made it very difcult for an arrested person to get bail, as the court needed to be rst convinced that the arrested person is prima facie innocent of the crime he is charged with69 .
Another important amendment on the UAPA came in 2008, after the attack by gunmen in Mumbai that year. Additional provisions regarding the maximum period in police custody, incarceration without a charge sheet and restrictions on bail were added into the UAPA. These new UAPA provisions also had similarities with those of POTA and TADA.
A notable change introduced in the UAPA through the 2008 amendment is that the investigation agencies were offered the power to detain the accused people for six months. The newly added paragraphs under Section 43D say if the investigators could not complete the probe within 90 days, the court can extend the detention of the accused up to 180 days.
In the same Section, under 43D(5), the amendment says that persons accused of an offence punishable under the UAPA, and arrested, should not be released on bail or his own bond “unless the Public Prosecutor has been given an opportunity of being heard on the application for such release”. It further says that such accused person “should not be released on bail” if the Court, after looking at the case diary or relevant report submitted, is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”.
69https://thewire.in/rights/uapa-bjp-terrorist-amit-shah-nia
45 Against the Very Idea of Justice Many legal experts and observers point out that these provisions are serious, as they could violate the fundamental rights of the accused and the concept of a fair trial. Under these provisions, an individual can simply be jailed for an indenite period without committing any crime, as we have been witnessing in several recent UAPA cases.
The Act has been amended two more times – in 2012 and 2019. The amendments on the UAPA also have 'international reasons'. For example, in 2012, the amendment was made also to meet the commitments made at the Financial Action Task Force70 , an inter- governmental body for preventing “money laundering and terror nancing”71 .
And the 2012 amendments to the UAPA further expanded the already vague denition of “terrorist act” to include offences that threaten the country's economic security.
The Act got further 'strengthened' with a fresh amendment in 2019, adding more provisions that could further restrict the fundamental rights of the accused, who, in many recent cases, turned out to be government critics rather than criminals or terrorists.
The 2019 amendment added provision that could designate an individual as a “terrorist”. Like other
70https://www.prsindia.org/billtrack/the-unlawful-activities-prevention- amendment-bill-2011-2159/ 71https://www.fatf-gafi.org/about/
46 Against the Very Idea of Justice additions to the Act which does not respect basic human rights, this amendment too invited criticism. Siddharth Varadarajan, a senior journalist and the editor of 'The Wire', said that this amendment has made the UAPA the “most dangerous law” in India, as the law now allows the state to designate someone as a “terrorist” without a judicial trial72 .
The latest amendment also has the potential to weaken the country's federal system, as the National Investigation Agency under the central government was offered greater power to investigate cases under this law, sidelining the state police forces73 .
Notably, and alarmingly, some opposition parties like the Congress and BSP were also supportive of making the UAPA more dangerous through its 2019 amendment, as these parties supported the Modi government when the amendment bill was introduced in the parliament74 .
Activists Ferreira and Gonsalves point out how the UAPA criminalises even holding an 'extremist' ideology – an idea that many Indian judges still refuse to agree with75 .
“By virtue of declaring an organisation 'unlawful' or 'terrorist' and banning it, these Acts have de facto criminalised their ideologies. Hence mere possession of any literature of such an organisation or even upholding
72https://thewire.in/video/beyond-the-headlines-11-uapa-bill-dangerous-law 73https://thewire.in/rights/uapa-bjp-terrorist-amit-shah-nia 74https://indianexpress.com/article/india/minutes-after-opposing-it-congress-backs- uapa-bill-in-rajya-sabha-5873977/ 75https://thewire.in/rights/kochi-nia-allan-shuaib-thwaha-fasal-maoist-uapa
47 Against the Very Idea of Justice an ideology common to that organisation in the absence of any violent act is construed as an offence. On the other hand, mere membership or association with such an organisation too becomes an offence. It is by this logic, that very often, organisations advocating the rights of a certain minority community or that of oppressed sections are easily labelled as fronts of a proscribed organisation,” they noted76 .
76https://thewire.in/rights/uapa-anti-terrorism-laws
48 Against the Very Idea of Justice 3.Statistics: Increasing Arrests & Little Convictions What makes the UAPA terribly distinct is its increased use, the difculty for the accused to secure bail, and the embarrassingly low rate of conviction. More than 97% of the UAPA detainees are innocents and are not yet proven guilty77 .
On February 10, 2021, the central government informed the parliament that 1,948 persons were arrested under the UAPA in 2019 alone. This is 72% more comparing to the persons arrested in 201578 .
G. Kishan Reddy, Minister of State in the Ministry of Home Affairs, in response to a question asked by Syed Nasir Hussain of Indian National Congress, also informed the Rajya Sabha that between 2016 and 2019 (4 years), a total of 5,922 persons were arrested invoking the UAPA. Out of them, only 132 (only 2.22%) were convicted79 .
In March 2021, responding to a question raised by Abdul Wahab of IUML, G. Kishan Reddy informed the parliament that 1,226 UAPA cases were registered across the country in 2019 alone. It was 897 in 2015 and 922 in 2016. While 2017 witnessed a marginal decrease in numbers (901), the number crossed the 1,000-mark in 2018, when 1,182 UAPA cases were registered across the
77https://pqars.nic.in/annex/253/AU1013.pdf 78https://www.thehindu.com/news/national/parliament-proceedings-over-72-rise- in-number-of-uapa-cases-registered-in-2019/article34029252.ece 79https://pqars.nic.in/annex/253/AU1013.pdf 49 Against the Very Idea of Justice 20 years after arrest, court acquitted all the 127 accused booked under the UAPA in 2001 for participating in a meeting, saying the evidence against them was “not reliable or satisfactory enough”.
country. So, according to ofcial data itself, the number of UAPA cases steadily increased over the last ve years80 .
The details the government submitted before the parliament shows that Assam, Bihar, Jammu & Kashmir, Jharkhand, Kerala, Manipur and Uttar Pradesh registered a considerable number of UAPA cases in the last ve years. Arunachal Pradesh and Tamil Nadu also registered a good number of cases in 2019.
Interestingly, Gujarat, the home of both prime minister and home minister, registered only one UAPA case in the last ve years. Haryana, Himachal Pradesh, Mizoram, Rajasthan and Telangana also registered only one case during the same period. Among the states, Goa, Sikkim, Tripura and Uttarakhand didn't register even a single case in the last ve years.
80https://www.mha.gov.in/MHA1/Par2017/pdfs/par2021-pdfs/rs- 10022021/1830.pdf 50 Against the Very Idea of Justice Source: Ministry of Home Affairs - https://www.mha.gov.in/MHA1/Par2017/pdfs/par2021-pdfs/rs-10022021/1830.pdf Out of the 1,948 persons arrested under the UAPA in 2019, 498 arrests were made in Uttar Pradesh alone. While Manipur had 386 persons arrested, Tamil Nadu and Jammu & Kashmir recorded 308 and 227 arrests respectively.
51 Against the Very Idea of Justice 4.The Victims The Unlawful Activities (Prevention) Act, 1967, or the UAPA, is currently India's major 'anti-terror' law and has long been used against government critics and civil rights defenders.
The law has been widely misused to stigmatize and criminalize dissent. For instance, various forms of legitimate public protests against controversial government policies in the recent past were portrayed as terrorist activities under this legislation.
In Kashmir, the police even invoked this “anti-terror” law against citizens who accessed social media platform at a time of internet shutdown.
“The provisions of UAPA have, particularly 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,” wrote Kapil Sibal, a former Union cabinet minister from Congress party and senior Supreme Court lawyer81 .
The law has recently been widely used against civil rights activists, journalists, academics, students, and protestors opposing new citizenship law and farm laws. Religious minorities like Muslims have been particularly targeted, and the misuse of the law is quite rampant in some states.
81https://www.hindustantimes.com/analysis/uapa-when- laws-turn-oppressive/story-d9d7OEO50LQjLZs3Ba5pzI.html
52 Against the Very Idea of Justice In 2019 alone, 1,226 UAPA cases were led across the country82 . This is 33% more than the total cases registered in 2016. Recent years have seen a steady growth of the cases in which UAPA gets invoked83 , despite a remarkably low conviction rate84 .
Let's have a look at some UAPA cases where the law was invoked against people like activists, teachers and students, and not against 'terrorists' or 'terror organisations'.
82https://theprint.in/opinion/ncrb-2019-data-shows-165-jump-in-sedition-cases-33- jump-in-uapa-cases-under-modi-govt/521861/ 83https://clpr.org.in/blog/use-of-the-uapa-from-the-national-crime-reports-bureau/ 84https://www.thehindu.com/news/national/22-of-cases-registered-under-the-uapa- from-2016-2019-ended-in-court-conviction/article33804099.ece
53 Against the Very Idea of Justice 4.1. UAPA against activists, academics
The National Investigation Agency (NIA), India's leading 'anti-terror agency, has been probing the Elgar Parishad, a pro-Dalit event organised by two former judges85 on December 31, 2017, at Koregaon Bhima, near Pune in Maharastra, and subsequent acts of violence in which Dalit community members were attacked by a violent mob86 .
The Elgar Parishad event was held to commemorate 'Dalit victory' over 'upper caste' Peshwa men 200 years ago87 .
The NIA, which started its probe into the case in January 2020, invoked provisions of the UAPA against several prominent activists and academics. These include trade- unionist and lawyer Sudha Bharadwaj88 , senior human rights activists Gautam Navlakha89 and Stan Swamy90 , and Professors Anand Teltumbde91 and Hany Babu92 .
85https://scroll.in/article/892631/they-want-fascist-forces-to-reign-retired-judges- who-organised-elgar-parishad-speak-out 86https://thewire.in/caste/bhima-koregaon-violence-hindutva-leaders-case 87https://indianexpress.com/article/what-is/what-was-the-battle-of-koregaon- mahar-dalit-marathas-maharashtra-bandh-5009488/ 88https://thewire.in/rights/sudha-bharadwaj-trade-union-movement-lawyer 89https://thewire.in/rights/taloja-jail-authorities-deny-newly-made-spectacles-to- gautam-navlakha 90https://www.article-14.com/post/why-an-aged-defender-of-the-deprived-faces- terror-charges 91https://www.bbc.com/news/world-asia-india-53400138 92https://thewire.in/rights/hany-babu-arrest-nia-academics-reaction
54 Against the Very Idea of Justice Even as the NIA probe93 , and the earlier probe led by Maharashtra police94 , have been criticised, multiple independent investigations suggested a larger conspiracy against the activists accused in the case.
A Caravan magazine analysis revealed that a computer hard disk of Rona Wilson, a prominent prison-rights activist95 who was also arrested in the case, contained malware that can be “used to remotely access the computer and plant les”96 .
A letter found in Wilson's device was cited by the investigators as important evidence in the case. In February 2021, a fresh report, by a U.S.-based computer
93https://thewire.in/politics/koregaon-bhima-case-ex-judge-mulls-moving-court- on-centres-nia-move 94https://thewire.in/rights/discrepancies-bhima-koregaon-investigation-sharad- pawar-demands-fresh-probe 95https://caravanmagazine.in/politics/rona-wilson-uapa-urban-naxal-maoist- assassinate-narendra-modi 96https://caravanmagazine.in/politics/bhima-koregaon-case-rona-wilson-hard-disk- malware-remote-access
55 Against the Very Idea of Justice forensics service provider, revealed that “a cyber attacker had gained access” to Wilson's laptop and “planted at least 10 incriminating letters” on it97 . The only accused person in the case who got released on bail is 81-year old poet-activist Varavara Rao98 .
97https://thewire.in/tech/rona-wilson-elgar-parishad-letters-planted-us-firm 98https://www.ndtv.com/india-news/varavara-rao-81-year-old-poet-activist- granted-bail-by-bombay-high-court-in-bhima-koregaon-case-2375782
56 Against the Very Idea of Justice 4.2. UAPA against students In recent years, a group whose members were targeted by the UAPA, a law meant to counter-terrorism, is university students.
A number of students, especially those studying in leading universities in the country, got booked under this law, arrested, and even jailed and denied bail for longer periods. Many students remain in jails.
Several students charged with the UAPA were booked in connection with their participation in anti-CAA protests and their alleged role in the anti-Muslim riots in Delhi in 202099 . For example, Umar Khalid100 and Sharjeel Imam101 , two young bright scholars associated with the Jawaharlal Nehru University, were booked under the UAPA for what the police said their involvement in a conspiracy related to the Delhi violence102 -- a charge the students' challenge. Both the young men, however, remain in jail.
SafooraZargar103 , Gulsha Fatima104 , Natasha Narwal105 , Asif Iqbal Tanha106 , and Meeran Haider107 are some other
99https://caravanmagazine.in/tag/delhi-violence 100https://thewire.in/education/umar-khalid-phd-thesis-adivasi-history 101https://thewire.in/rights/sharjeel-imam-jnu-sedition 102https://thewire.in/rights/delhi-police-umar-khalid-sharjeel-imam-uapa 103https://www.bbc.com/news/world-asia-india-53149967 104https://timesofindia.indiatimes.com/city/delhi/delhi-riots-40-organisations- demand-release-of-gulfisha-fatima-booked-under-uapa/articleshow/77108986.cms 105https://thewire.in/government/delhi-riots-natasha-narwal-uapa-pinjra-tod 106https://thewire.in/rights/delhi-riots-bail-plea-jamia-asif-iqbal-tanha-uapa 107https://www.hindustantimes.com/delhi-news/2-jamia-students-booked-under- uapa-in-riots-case/story-w5TkGNyeXavRUAzSsy5OOO.html 108https://thewire.in/rights/delhi-police-riots-conspiracy-academics-activists 57 Against the Very Idea of Justice student activists who are facing charges under the UAPA.
Notably, the Delhi police's probe into Delhi's anti-Muslim violence has been controversial 108 and received criticism from various corners, including researchers1 0 9 , commentators110 , courts111 , activists112 , and retired police ofcials113 themselves.
In a letter written to the Delhi police commissioner S.N. Shrivastava, Romania Julio Ribeiro, a highly respected retired police ofcer and diplomat, said while the Delhi police were taking action against “peaceful protestors”, it “deliberately failed to register cognizable offences” against those “who made hate speeches which triggered the riots in N.E. Delhi”114 .
109https://thewire.in/communalism/delhi-riots-2020-there-was-a-conspiracy-but- not-the-one-the-police-alleges 110https://thewire.in/politics/delhi-riots-delhi-police-arrests-muslims 111https://thewire.in/law/delhi-police-north-east-delhi-riots-probe-targeted 112https://thewire.in/communalism/delhi-police-riots-investigation-false-charges- uapa-conspiracy 113https://thewire.in/rights/nine-former-police-officers-call-delhi-riots-investigation- flawed 114https://thewire.in/rights/ex-policeman-julio-ribeiro-asks-delhi-police-chief-to- ensure-fair-probe-in-riots-cases
58 Against the Very Idea of Justice 4.3. UAPA against journalists115
A disturbing trend that is sweeping across the country is attacks against journalists and media organisations. These attacks are in various forms, like online abuse, physical and sexual harassment and legal actions.
Recently, four women journalists, including Neha Dixit and Rana Ayyub, opened up on how they faced online abuses116 . During their coverage of the aftermath of Delhi violence, three journalists including a woman, from the Caravan magazine, were beaten, subjected to communal slurs, threatened with murder, and sexually harassed117 . In yet another different attack on the press freedom and journalists, news website The Wire, its editor Siddharth Varadarajan and reporter Ismat Ara, were booked by the U.P. police after the news website published a report on the claims made by the family of a farm protester, who died during the farmers' tractor rally on the Republic Day in 2021118 .
Last year, at least 55 journalists faced arrest, registration of FIRs, summons or show-cause notices, physical assaults, alleged destruction of properties and threats for reporting on COVID-19, or for exercising freedom of speech119 .
115https://thewire.in/media/use-of-uapa-against-journalists-is-last-nail-in-coffin- for-press-freedom-in-kashmir 116https://www.thequint.com/neon/gender/trolling-women-journalists-rana- ayyub#read-more 117https://caravanmagazine.in/crime/the-caravan-journalists-assaulted-sexually- harassed-in-northeast-delhi 118https://thewire.in/media/the-wire-ismat-ara-names-added-up-police-fir- siddharth-varadarajan-farmers-rally-death 119https://thewire.in/media/journalists-arrested-press-freedom-2020 59 Against the Very Idea of Justice There have been several reports that explain how the journalists have been silenced and jailed, through legal actions.120,121
The legal provisions invoked against journalists in the recent past include the UAPA and sedition -- two dangerous laws with great potential to be (mis)used against the critics of the government.
Many senior journalists, including Vinod K. Jose and Rajdeep Sardesai, were recently booked for 'sedition' for reporting critically on the death of a protestor during the farmers' tractor rally on January 26, 2021122 .
On the other hand, in April 2020, Jammu & Kashmir police registered FIRs against three well-known journalists from Kashmir. All of them – Gowhar Geelani,
120https://theprint.in/india/jk-to-kerala-gujarat-bengal-journalists-across-india-face- police-action-even-for-tweets/531192/ 121https://thewire.in/media/journalist-arrest-arnab-goswami-bjp-defence 122https://www.thenewsminute.com/article/shashi-tharoor-rajdeep-sardesai-vinod- k-jose-and-others-booked-sedition-142362
60 Against the Very Idea of Justice Masrat Zahra and Peerzada Ashiq – were charged with the UAPA123 .
The arrest of Siddique Kappan, a journalist from Kerala, by the U.P. police, also attracted public attention. Kappan, who was booked under both the UAPA and sedition, remains in jail124 .
123https://thewire.in/media/use-of-uapa-against-journalists-is-last-nail-in-coffin-for- press-freedom-in-kashmir 124https://thewire.in/media/hathras-case-malayalam-journalist-siddique-kappan- booked-under-sedition-uapa
61 Against the Very Idea of Justice 4.4. UAPA against religious minorities
Members of certain other religious minority communities, like Muslims and Sikhs, have also faced arrest and other harassments in the name of the UAPA. While the Modi government doesn't approve of the existence of 'Hindutva terrorism', it rigorously probes “Islamist & Sikh terrorism”, often leading to the harassment of innocents125 .
On March 06, 2021, a court in Gujarat's Surat, acquitted 122 Muslims who were arrested in December 2001126 . They were detained while attending a programme and were later booked under the UAPA. They were accused of being members of the Students' Islamic Movement of India (SIMI).
There have been numerous other cases wherein the Muslim men and women -- in several cases, youth – were booked under the UAPA, kept in jail for several years, and later found innocent. For example, Mohammad Aamir Khan, a young Muslim man, was branded as a 'terrorist' and had to spend 14 years in jail, before he was ultimately proved to be innocent and released127 .
Most of the people arrested by the Delhi police and booked under the UAPA, following the deadly anti-
125https://caravanmagazine.in/religion/elections-2019-hindu-terror-islamic-sikh- terrorism-mac-narendra-modi 126https://scroll.in/latest/988809/gujarat-court-acquits-122-arrested-under-uapa-for- alleged-links-to-banned-outfit-simi-after-19-years 127https://www.hindustantimes.com/analysis/framed-as-a-terrorist-mohammad- aamir-khan-s-14-years-behind-the-bars/story-TJnysSHMj0yCj8yXf15lrN.html
62 Against the Very Idea of Justice Muslim violence in the city in 2020128 , were Muslims, including student and youth activists.
The Frontline magazine's recent coverage about India's “terror laws” has narrated stories of several innocent Muslims whose lives were ruined after being booked under the UAPA and other draconian laws129 .
Recently, the Karnataka government invoked the UAPA against several Muslims following a violence that hit parts of Bengaluru city130 . Widespread arrests of innocents eventually forced the Muslim leaders to meet the chief minister and request for the release of those who were wrongly arrested131 .
128https://caravanmagazine.in/crime/delhi-rioter-testimony-hindu-revenge- muslims-police-free-reign 129https://twitter.com/frontline_india/status/1373839349171822594 130https://www.indiatoday.in/india/story/bengaluru-violence-karnataka-govt- invokes-uapa-against-61-accused-1713202-2020-08-20 131https://www.thenewsminute.com/article/bengaluru-riot-muslim-leaders-meet- cm-yediyurappa-demand-judicial-probe-133166
63 Against the Very Idea of Justice The fact that only Muslim parliamentarians voted against the latest amendment in the UAPA not only exposes the unfortunate attitude of several opposition MPs, as noted by Asaduddin Owaisi132 but also reveals a real concern of the Muslim community -- that they are among the primary targets of the UAPA.
And it's not just Muslim individuals who are targeted under the law, but also Muslim organisations. For example, activists of Popular Front of India (PFI), a registered NGO that works among Muslims to protect the rights of the community and to create awareness about various socio-political issues, have been constantly targeted under the law.
The latest example is the targeting of its several members following the rape-and-murder case of a Dalit woman in Hathras, Uttar Pradesh. The Uttar Pradesh133 police also arrested two more PFI activists recently, alleging that they were planning “terror” attacks134 . The PFI categorically rejected the allegation and said that the UP police was taking revenge against the organisation for initiating a legal battle against the police135 .
In Punjab, reports suggest that the UAPA has been widely misused against Sikhs. In the recent past, several
132https://scroll.in/latest/932054/asaduddin-owaisi-says-it-is-a-matter-of-concern- that-only-muslim-mps-voted-against-nia-uapa-bills 133https://thewire.in/media/hathras-case-malayalam-journalist-siddique-kappan- booked-under-sedition-uapa 134https://www.thehindu.com/news/national/other-states/up-police-arrest-two- kerala-pfi-men-on-terror-charge/article33864157.ece 135https://www.thenewsminute.com/article/police-taking-revenge-pfi-leaders- arrest-2-kerala-party-workers-143638
64 Against the Very Idea of Justice Sikhs were accused of being involved in Khalistani extremism and are arrested under the UAPA. Notably, many of them were not even informed about the FIRs registered against them or even told that they have been accused of being a Khalistani supporter136 . In 2020 alone, the UAPA was invoked against at least 10 people, for alleged connection with Khalistani secessionists137 .
Even though the state is witnessing more UAPA cases being registered, data reveals that the conviction rate of UAPA cases in Punjab is very low. The accused, however, remain in jails for a long time before they were found innocent138 .
In July last year, Sukhpal Singh Khaira, the president of the Punjabi Ekta Party, wrote to Punjab chief minister Amarinder Singh, saying that the rise in UAPA cases in Punjab indicates “a well-designed conspiracy by central agencies and Punjab Police to implicate innocent Sikh/Dalit youth to tarnish the image of Sikh community as a whole as terrorists and anti-national”139 .
136https://caravanmagazine.in/crime/how-the-punjab-police-persecuted-poor-dalit- sikhs-under-uapa-with-little-evidence 137https://thewire.in/rights/rampant-arrests-rare-convictions-in-punjab-the-uapa-is- ripe-for-misuse 138https://indianexpress.com/article/cities/chandigarh/uapa-in-punjab-low-on- conviction-high-on-charges-7052911/ 139https://caravanmagazine.in/crime/how-the-punjab-police-persecuted-poor-dalit- sikhs-under-uapa-with-little-evidence
65 Against the Very Idea of Justice 5. A Law Contradicting with Indian Constitution Even as the police, NIA and other agencies are invoking the UAPA provisions in more and more cases, criticism against the draconian law is also growing.
Many observers, leaders from opposition parties, and even petitions submitted before the Supreme Court have already pointed out how the UAPA is inconsistent and incompetent with the country's Constitution, as well as with the universal concept of human rights.
The UAPA is a awed law because, among other reasons, it violates the established legal doctrine of ''bail is a rule, jail is an exception''140 .
The denition of terrorism is extremely vague in the UAPA, and in many cases, the investigators make their own conclusion on what is a terror activity and what is not. The Act states that individuals can be declared as “terrorists” without trial, or without giving them a chance to be heard. The law also gives the government the power to ban any organisation, which allows room for the government to silence civil rights/critical groups.
The UAPA denes a 'terrorist act' under Section 15 of the law andsays that any activity that “intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country” is a terrorist activity.
140https://www.freepressjournal.in/analysis/bail-is-rule-jail-is-an-exception
66 Against the Very Idea of Justice So, according to the law, a 'terrorist act' doesn't necessarily need to be an act of violence. It is, instead, dened based on 'intention' and even 'likelihood'.
In a recent analysis published in Hindustan Times, constitutional scholar Gautam Bhatia pointed out how the UAPA is a threat to both personal liberty and fair trial141 .
Bhatia discussed how a number of well-known activists and civil society gures continue to be denied bail in the infamous Bhima Koregaon case, even when the activists were being jailed for more than two years and the trial is yet to start.
In the light of the latest report that key evidence against the activists was in fact 'planted'142 , Bhatia said the Bhima Koregaon case and its details offer “an opportunity to focus on the numerous problems with criminal trials” in the country.
Pointing out the Section 43D(5), which makes getting bail an extremely difcult task for the accused, Bhatia wrote “this law makes it very difcult for judges to grant bail in UAPA cases, by effectively barring the grant of bail as long as a prima facie case exists against the accused”.
Lawyer Abhinav Sekhri, in a powerful critique of the UAPA, also explained how Section 43-D(5)143 , “a small proviso” within the UAPA, strikes a body blow to the
141https://www.hindustantimes.com/opinion/how-uapa-curtails-personal-liberty- undermines-fair-trial-101613394052106.html 142https://thewire.in/tech/rona-wilson-elgar-parishad-letters-planted-us-firm 143https://indiankanoon.org/doc/165949346/
67 Against the Very Idea of Justice 'presumption of innocence144 . The Section 43D(5) says that the court, after considering the police material, should not grant bail if it is satised that there are “reasonable grounds for believing that the accusation against such person is prima facie true”. Sekhri asks, among other questions, how can a court reach such a conclusion at a very early stage of the investigation and trial.
Bhatia also said that the latest Arsenal report, which revealed how crucial evidence against the accused in the Bhima Koregaon case was manufactured, is a “good example” of how the anti-bail system built within the UAPA operates in practice.
Bhatia argues that fresh revelations are unlikely to help the accused to get bail because of the strange provisions within the UAPA. “The combination of two factors — Section 43D(5) [of the UAPA] and the long pace of trials in India — effectively means that the moment UAPA is mentioned in the police charge-sheet, anyone accused in that case is, for all practical purposes, sentenced to many years in jail without trial”.
The courts in the country, on their part, consistently fail to act proactively to ensure that the lives of innocents are not languishing in jails. Besides, even with several examples of wrongful detentions under the law, the courts show little care and responsibility to ensure that those, who have been imprisoned on false charges for
144https://www.article-14.com/post/how-the-uapa-is-perverting-india-s-justice- system
68 Against the Very Idea of Justice long years, get adequate compensation. They also do little to punish, or even to correct, the erring ofcers whose (often deliberate) mistakes leading to ruining innocent lives.
According to Bhatia, the courts didn't do much to address the draconian provisions of the UAPA.
“[The] situation has been made worse by Supreme Court (SC) judgments such as the notorious Watali case which, instead of interpreting such draconian laws in order to expand the scope of personal liberty, have made the grant of bail even more difcult — by giving vague and wide-ranging denitions to terms such as “conspiracy”, and preventing courts from making even common-sense conclusions about evidence that is clearly inconsistent or manufactured,” he wrote. “While there is still space for courts to interpret UAPA in a manner that does not entirely efface personal liberty, very few such judgments have been forthcoming”.
Showing optimism, however, Bhatia said that a recent SC judgment145 , granting bail to the accused in the UAPA case registered in 2010, was a “small sign” that things are changing positively. In the said judgment, the Supreme Court noted that courts could grant bail in UAPA cases where fundamental rights had been violated (such as the right to a fair trial, due to extensive delay). However, as Bhatia noted, such occasionally good judgments are “not enough”, as the misuse of the law is widespread.
145https://thewire.in/law/if-right-to-speedy-trial-is-violated-bail-can-be-granted-in- uapa-cases-supreme-court
69 Against the Very Idea of Justice Bhatia concluded his analysis by writing this: “To stop UAPA from continuing to be the tool of repression that it has become, it is vital that the courts either strike down — or substantially read down — this section, and ensure that years in jail do not become an automatic consequence of the police's (read: the State's) decision to charge inconvenient opponents under this law”.
Noted academic and civil rights activist Anand Teltumbde wrote that the UAPA “gives the police unaccountable authority to arrest, slap any number of charges, and ensure that the arrested rot in jail as the law meanders through the courts”. According to him, the UAPA has been misused against those who “took up cudgels for the oppressed and spoke out against the elitist bias of the state”. Teltumbde also argued while the courts have been vigilant against the misuse of certain laws, like the Scheduled Castes/Scheduled Tribes (SC/ST) (Prevention of Atrocities) Act, they “refuse to see the misuse of the UAPA”. The same UAPA, however, was later misused against Teltumbde too.
Dr. Mayur Suresh, a London University lecturer and researcher on 'anti-terror laws146 , said that the UAPA allowed the government to suppress “legitimate democratic activity”, by giving it the power to ban organisations. “Most prosecutions under UAPA are not for acts of violence, but membership in banned organisations ... The government rst proscribes organisations and then brings cases against people for
146https://www.soas.ac.uk/staff/staff104071.php
70 Against the Very Idea of Justice being members of these organisations. A brief history of the Act shows how UAPA empowers the government to stie legitimate, non-violent democratic activity through its power to ban organisations,” he wrote147 .
Harsh Bora, a Delhi-based criminal lawyer who has handled several UAPA cases, said: “The exibility for misuse is built into the law. UAPA can be used for anti- terror prosecutions ... But the law is built in such a way that the government conveniently uses it for false, politically motivated, and anti-dissent prosecutions”148 .
For Mihir Desai, senior counsel at Bombay High Court, the UAPA is not meant for convicting people, but to keep them under detention. “Eventually, acquittals might happen, but a considerable amount of time passes by and the person's life is ruined,” he rightly points out149 .
147https://thewire.in/law/uapa-activists-arrests-emergency-supreme-court 148https://thewire.in/law/uapa-due-process-front-organisations-misuse-legal-experts 149https://www.business-standard.com/article/current-affairs/arrested-activists-67- ended-in-acquittal-or-discharge-under-uapa-act- 118090800801_1.html#:~:text=Arrested%20activists%3A%2067%25%20ended% 20in%20acquittal%20or%20discharge%20under%20UAPA%20Act,-Chait
71 Against the Very Idea of Justice Sekhri observes that, in the case of several UAPA- charged activists and students, proving their innocence or guilt has been rendered “irrelevant”, due to the “insidious legal process” that follows once the UAPA is invoked against a person.
He wrote that “a combination of factors ensures that a UAPA case exacts a signicantly heavier toll on individual liberty than regular prosecutions. UAPA provides the least procedural protection for the most serious allegations that can be made under Indian criminal law”.
Sekhri further pointed out that in the presence of provisions designed to erode personal liberty and the absence of textual safeguards, the “only protections left” are the institutions that administer the process, including “the police, prosecutors, and courts”. But, he argues, these institutions fail to protect personal liberty. Sekhri explains how the UAPA is “perverting” the very idea of justice.
The primary legal tool to protect against arbitrary or wrongful arrest, which has been widespread in India, is using the legal provisions on custodial remand and bail. But the UAPA alarmingly restricts the chances for bail, unlike what is the norm under the Criminal Procedure Code (CrPC), 1973150 .
150https://indiankanoon.org/doc/839149/
72 Against the Very Idea of Justice Sekhri wrote151 :
“Under the general law152 , if the police require custody of an arrested person beyond 24 hours, this must be authorised by a magistrate. Ordinarily, police seek “police custody” where the person is needed for investigative purposes and “judicial custody” when there is no such need.
Police custody is limited to only the rst 15 days after the arrest. A magistrate does not simply authorise custody for 15 days but is normally extremely hesitant to remand a person for more than a few days at a stretch, after which a person must be produced in court again.
Through such periodic court appearances, the law attempts to ensure that the denial of liberty remains justied, that there is oversight over how police treat an accused and that there is in fact investigative work being performed.
Apart from placing strict limits on the duration of police custody, the CrPC also limits the period for which an accused may be detained during an investigation; police must complete an investigation within 60 to 90 days (depending on the gravity of the alleged offence) of the arrest. On failure to meet this deadline, the arrested person becomes entitled to bail. Through these mechanisms, the law seeks to ensure there is no indenite detention for purposes of investigation.
151https://www.article-14.com/post/how-the-uapa-is-perverting-india-s-justice- system 152https://indiankanoon.org/doc/1687975/
73 Against the Very Idea of Justice An accused in a UAPA case faces a very different legal reality than that charted under the CrPC. Similar to earlier anti-terror laws, today the UAPA expands the 15 days of custodial remand at a stretch to 30 days—including for police custody. The provision also permits the police to seek custody at any time during the investigation - not just at the beginning. On top of this, the UAPA allows the judge to permit custody153 during the investigation for up to 180 days154 , instead of the 60/90 days under the CrPC.”
Expanding time for police custody also means that creating more chances for accused persons to suffer physical abuse at the hands of the police without magistrates ever getting to know.
The individuals charged under the UAPA almost always face the possibility of prolonged detention even before and during the trial.
According to Sekhri, the UAPA violates an important and “incontrovertible” legal principle - that a person who is presumed innocent must not suffer incarceration before proof of guilt is established beyond all reasonable doubt. In other words, as long as the accused will not ee or tamper with evidence, she should be released on bail.
The UAPA also disallows the 'anticipatory bail', an established legal tradition. For Justice A.P. Shah, a former chief justice of the Delhi high court, the bail
153https://indiankanoon.org/doc/160502578/ 154https://indiankanoon.org/doc/160502578/
74 Against the Very Idea of Justice hearings under the UAPA are “nothing more than mere farce”155 . Sekhri is extremely, and rightly, critical about the parliament's disregard for personal liberty, even when the country witnessed widespread misuse of previous terror laws. He wrote: India's own history during the years of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA) should have made Parliament especially aware of the potential for anti- terror laws to be wantonly misused when it went about amending the UAPA in 2008 to insert the set of provisions punishing terrorism. Yet in the UAPA one nds a reckless disregard for safeguards of personal liberty. Certain provisions in the UAPA, which clearly violate the fundamental rights of the citizens guaranteed by the constitution, have already been challenged in the Supreme Court by multiple petitions. One such petition, led by the Association for Protection of Civil Rights (APCR), a Delhi-based civil rights group, argued that certain provisions in the UAPA clash with the fundamental rights guaranteed in the constitution. The petition submitted that the amendments made in 2019 in the UAPA, which allows a government agency to designate an individual as a 'terrorist' without trial, should be scrapped, as certain provisions in the Act do not match with the fundamental rights guaranteed in the constitution.
155https://thewire.in/law/supreme-court-rights-uapa-bjp-nda-master-of-roster
75 Against the Very Idea of Justice According to the petition, Sections 35 and 36 of the UAPA is constitutionally invalid, as those sections challenge the fundamental rights enshrined in the constitution, especially those rights guaranteed under Article 14 (right to equality before law), Article 19(1)(a) (right to freedom of speech and expression) and Article 21 (Protection of life and personal liberty).
Similar arguments were made in another petition submitted before the Supreme Court by one Sajal Awasthi.“The new Section 35 of the UAPA Act empowers the Central Government to categorise any individual as “terrorist” and add the name of such a person in Schedule 4 of the Act,” the petition said, adding that conferring of such a “discretionary, unfettered and unbound powers” upon the central government is “antithesis” to Article 14 of Indian Constitution.
The petition said the latest amendments violate an individual's right to reputation, as the authorities can brand anyone as a 'terrorist' even before the trial.
Both the petitions have demanded that the controversial sections (Sections 35 and 36) of the Act be declared as “unconstitutional”, as those sections violated fundamental rights enshrined in the Constitution.
76 Against the Very Idea of Justice 10 issues with the UAPA
Perhaps, 10 most serious issues with the UAPA are as follows.
The UAPA: 1. Gives excessive power to police, other investigation agencies; maintains little respect for personal liberty and privacy 2. Has a vague and problematic denition for key terms, like 'terrorist act' and 'unlawful activity'. 3. Designate individuals as 'terrorists' without hearing their side or judicial trial 4. Poses threat to groups critical of the government; threatens dissenting voices 5. Keep individuals under prolonged detention without trial or conviction, and bail is almost impossible 6. Places the 'burden of proof' on the accused; fails to ensure a fair trial 7. Has low conviction rate, and the prosecution repeatedly fail to prove the guilt of the accused 8. Has been widely misused against religious minorities, Dalits, other marginalised communities and civil rights defenders 9. Has no provision for suing investigative ofcials or agencies over deliberate, harmful misuse of the law; and has no provision for compensation to those whose lives get ruined after wrongful, prolonged incarceration under the law 10.Lacks 'sunset clause'
77 Against the Very Idea of Justice 6.Need of the Hour: A United Effort
The rightful criticism against the Unlawful Activities (Prevention) Act, and demands for its repeal, are steadily growing.
Several political leaders, civil society members, human rights groups, and even advocates and judges have, in the recent past, spoken out against various draconian provisions that are part of the UAPA.
In a press conference held in October 2020, senior leaders from different opposition parties, like Shashi Tharoor (INC), Supriya Sule (NCP) and Kanimozhi (DMK) condemned the “brazen misuse” of the UAPA and demanded to repeal the Act156 . The press conference was organised by the People's Union for Civil Liberties (PUCL), a human rights group. Other prominent political gures who attended the event included Jharkhand chief minister Hemant Soren, general secretary of CPI(M) Sitaram Yechury, general secretary of CPI D. Raja, and social scientist-activist Jean Dreze.
In January 2021, in a broader event, more than 100 organisations also raised the demand for the repeal of the UAPA157 . The three-day programme, also convened by the PUCL, began by drawing a timeline of the evolution of UAPA since the 1980s, tracing its roots and evolution back to previous, controversial terror laws, such as TADA and POTA.
156https://theprint.in/india/mps-tharoor-sule-kanizmozhi-join-8-others-to-seek- uapa-repeal-release-of-stan-swamy/528112/ 157https://www.theleaflet.in/pucl-and-100-organisations-demand-the-repeal-of-the- uapa/ 78 Against the Very Idea of Justice Many advocates, such as Prashant Bhushan, Gautam Bhatia and Abhinav Sekhri, have also spoken against the Act repeatedly on different occasions. For Prashant Bhushan, the law is a “fundamentally unjust law”158 . Other lawyers' criticisms against various provisions of the UAPA have already been mentioned earlier.
Justice A.P. Shah, a former chief justice of the Delhi high court, criticised the UAPA for the little chance the law offers to the accused to obtain bail159 . Senior journalist and editor of 'The Wire' Siddharth Varadarajan called the UAPA the “most dangerous law” ever passed by the Indian parliament160 after its latest amendment that allowed the government to declare individuals as 'terrorists.
So, the concerned citizens – politicians, rights activists, legal experts and journalists – are all now well-aware of the serious threat the UAPA is posing to individual liberty and other basic values of the Indian constitution. UAPA
158https://thewire.in/rights/mahatma-gandhi-present-day-india-aghast-prashant- bhushan-speech 159https://thewire.in/law/supreme-court-rights-uapa-bjp-nda-master-of-roster 160https://thewire.in/video/beyond-the-headlines-11-uapa-bill-dangerous-law
79 Against the Very Idea of Justice signicantly challenge the spirit of Indian democracy, as any citizen can easily be kept in jail for an indenite period, and be designated as a 'terrorist' if the police simply want to do so.
So what we – the ordinary citizens, journalists, lawyers, activists, political leaders, NGOs and political parties – need to do now?
The road ahead is not easy, as those who rule still have little respect for democratic principles and human rights. However, we cannot stay inactive, leaving our future and the future of our fellow Indians at the mercy of a few misguided, powerful politicians.
The issue here is not the misuse of the UAPA, but the very existence of a law that has great potential for, and a proven record of widespread misuse.
So, what needs to be done is to repeal the law itself.
80 Against the Very Idea of Justice An initiative, 'People's Movement Against UAPA', was launched in early 2014161 , after fresh draconian provisions were added to the Act in 2012. The movement was a collective of diverse groups of community leaders, activists and lawyers. Some campaign programmes were undertaken in New Delhi and elsewhere. Now, both the UAPA and the overall political situation have become more critical, calling for a revival of the movement.
The revived anti-UAPA movement needs to be energetic, collective campaigning by bringing together all constituent individuals and groups. It also needs to be converted into an active nationwide movement against all draconian laws.
A meeting of the active members of the old 'People's Movement Against UAPA' and other leading civil rights activists, which was held in Bengaluru in late 2020, has decided to strengthen the movement, under the new title Movement Against UAPA And Other Repressive Laws.
There is an urgent need to mobilise public opinion against the widespread misuse of the UAPA and other repressive laws, and of the investigation agencies. Such a grass-root movement should also strive for effective legal remedies for the victims of such misuses and abuses.
Therefore, it is time to join this movement for the repeal of UAPA and other repressive laws and to support the innocent people these laws have been misused against.
161http://twocircles.net/2014jan27/movement_against_uapa_launched.html
81 Against the Very Idea of Justice If governments of a democratic nation think that an undemocratic, inhuman law like UAPA is needed to protect the nation and its citizens, then that nation certainly has some problem. Jailing individuals without trial, or banning critical organisations, only reveal that the condence of the government – not the security of the nation –is in danger.
To build a just country -- where everyone lives in peace and happiness, and enjoys equality and dignity – is not an easy task. To abandon terrible laws like UAPA is certainly a small, yet concrete, step towards achieving that great goal.
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82 Against the Very Idea of Justice