Image Courtesy – Arun Ferriera
The Unlawful Activities (Prevention) Act, 1967, is being challenged in court as having “manifestly arbitrary” provisions and a very broad definition of “unlawful activity” that has a stifling impact on free expression. The Supreme Court, that first took up the matter September 26, 2022 will hear the matter on October 18.
Senior counsel Arvind Datar, representing the petitioner Foundation of Media Professionals, cited the Act’s arbitrary provisions before a three-judge bench comprised of Chief Justice of India UU Lalit, Justices Ravindra Bhat, and J.B. Pardiwala. The Bench requested notification be conveyed to the counsels appearing in other related cases. “List these matters on October 18, 2022. The counsel appearing in the connected matters sent intimation accordingly,” the bench stated in the order.
The petition argues that the UAPA’s provisions are “arbitrary and perverse, since they represent a condemnation of all democratic expression,” and that governments are abusing them “to target any and all kinds of dissent.” The petition was filed through attorney Rahul Bhatia.
Earlier, on November 11, 2021, an appellate court panel led by the former Chief Justice N.V. Ramana had sent notices to the governments of Tripura and the Centre on a request for an immediate hearing of two UAPA-challenging petitions made by lawyer Prashant Bhushan. Since then, not much has changed. In those two petitions, it was claimed that the anti-terror statute had been abused to persecute lawyers and journalists for their social media posts about the communal unrest in Tripura in October 2021.
Further, the present petition also argues that because the UAPA offers the State “excessive and overwhelming powers… to act against groups and persons” who criticise “the governing party or majoritarian attitudes,” it “is a flagrant attack” on the fundamental rights to equality, freedom of speech, and life and liberty. It claims that because the authority that determines whether or not an organization is a terrorist also administers the sentence, takes into account an appeal, or selects the appellate panel, “the entire structure” of the statute “is dictatorial.”
“The definition of ‘unlawful activity’ includes ‘disaffection against India’ which does not have a defined meaning under the Act and can be used to target anyone against whom the government harbors a grudge to someone who may have a contrary point of view. It is submitted that ‘unlawful activity’ as a category exists only for the state to quell opposition, and in that sense is arbitrary and undemocratic,” the petitioner submitted through the petition.
The foundation urged the top court to declare the UAPA unconstitutional on the grounds that it was manifestly arbitrary and violated Articles 14, 19, and 21 of the Constitution, which guarantee the rights to equality, freedom of speech, and life and liberty. The foundation claimed that the UAPA was a severe violation of the liberties guaranteed by these articles insofar as it gave the state sweeping authority to take action against groups and individuals who opposed the ruling party or the majority.
In the petition, it was also submitted that, “The scheme of the Act is a gross assault on the freedoms protected under Articles 14, 19, and 21 of the Constitution, insofar as it grants excessive and overwhelming powers to the State to act against associations and individuals who express criticism against the ruling party or the majoritarian sentiments.”
The earlier petitions filed by advocate Prashant Bhushan had also raised substantive issues. They had also raised concerns about the ambiguity of the term “unlawful activity,” the “wide net” that the law casts over free speech, and the law’s propensity to include criticism of the government even though it did not pose a threat to the public order, security, sovereignty, or integrity of India. They claimed that the law’s total ban on anticipatory bail and the very impossible task of obtaining normal release under it had a “chilling impact” on the right to free speech.
Advocates Mukesh Gaur and Ansarul Haq Ansari had filed one of the petitions, while journalist Shyam Meera Singh had filed the other. For their posts on the violence in Tripura, all three have been charged under the UAPA and other criminal statutes. It’s unclear if the Supreme Court would also hear arguments from the National Investigation Agency appealing a Kerala High Court ruling that gold smuggling is not covered by the UAPA along with the petitions questioning the constitutionality of the UAPA. A few days before to the Kerala High Court’s decision on February 19, 2021, the Rajasthan High Court had ruled on February 1 that the UAPA classified the smuggling of gold as a terrorist activity. The highest court had last year sent a notice to the Centre on the subject, requiring it to resolve the dispute.
Major issues associated with the UAPA:
Over the past few years, Indian civil society has been badly hit by use of laws such as Unlawful Activities Prevention Act (UAPA), sedition, FCRA, NSA, AFSPA* and various other similar laws. UAPA is possibly the most extreme due to its stigmatising effect and the Himalayan problem of getting bail, used wantonly in a large number of cases such as the Bhima Koregaon case, Akhil Gogoi case, the recent Andhra Telangana arrests, the Hathras rape case, Delhi CAA-NRC cases,
Reliance workers cases, Jharkhand Adivasi cases and a multitude of others.
Stringent Bail Provisions:
Some former IAS, IPS and IFS officers had also challenged the constitutional validity of certain provisions of the UAPA by filing a petition in the Supreme Court. The petitioners include luminaries like ex-IAS officers Wajahat Habibullah, Amitabha Pande, Harsh Mander, Kamal Kant Jaswal, Hindal Tyabji, MG Devasahayam, Pradeep Kumar Deb, Baldev Mahajan, former IPS Julio Ribeiro and Dr Ish Kumar as also ex-IFS officer Ashok Kumar Sharma. This too is still pending adjudication.
This earlier petition filed by former IAS/IPS officers emphasises that the golden thread that runs through our common law criminal jurisprudence, i.e., a person is innocent until proven guilty, has been completely upended and given the go-by. It is submitted that the great power that is given by certain provisions of the UAPA, needs to be exercised with great responsibility and restraint, in order to ensure that the constitutional rights of individuals are given due consideration and importance, and are not trampled on by arbitrary action.
The petition also challenges the constitutionality of the Proviso to Section 43D (5 of the Act), inserted by the 2008 amendment, which mandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusation against a person is “prima facie” true. It is submitted that the said Proviso is arbitrary and not based on any reasons emanating from the Act, and also violates Articles 14, 19 and 21 of the Constitution since the Act is not a law enacted for preventive detention. The “prima facie” correctness of untested and unproven allegations, cannot be the sole reason to deny a person the fundamental rights enshrined in Article 21.
“The abysmally low rates of successful prosecutions are also a pointer to fact that said proviso is arbitrarily used more to quell dissent than to achieve the actual objectives of the Act.”
The petitioners state that the stringent bail provisions contained in the UAPA have created a situation where merely being accused of a crime under the UAPA is considered sufficient to keep a person incarcerated, until the lengthy trial process is over.
A law, which permits the continued incarceration of a human being on the basis of mere “prima facie” opinion and does not permit bail, is a truly unjust law, and if the same is to remain on the statute book, the person whose prolonged and indefinite incarceration is sought must be given every opportunity to challenge such incarceration
The lack of bail for a person when accused of terrorism charges, coupled with the lack of supply of materials upon which sanction is sought – when combined together result in unfettered and unbridled powers upon the Government, and gives the Government to use its powers under the UAPA in an arbitrary manner, the petition states.
The petition points out that the mere accusation of having been involved in terrorism, is sufficient to bring Section 43D(5) into play, and leads to a denial of the individual’s right to bail.
The petition also relies upon the reply given by the Ministry of Home Affairs (MHA) in the Lok Sabha in March 2020 to conclude that the average conviction rate over the five year period (2015-2019) is 2.19%. This statistic alone suggests that prosecution under the UAPA is either initiated in “bad faith”, or the quality of the evidence is not sufficient, says the petition.
The petition can be read here.
The prolonged bail period and repeated rejections faced by the accused under UAPA is a grave concern. Fr Stan Swamy (84) was a Jharkhand-based tribal rights defender was arrested on October 8, 2020, by the anti-terror National Investigation Agency in connection with the Bhima Koregaon Maoist conspiracy case and died at a Mumbai hospital while in judicial custody in July 5 2021, the day year while awaiting bail. The death of Fr Stan is nothing short of an institutional murder by the NIA and the Taloja Jail authorities.
Curbing dissent:
The unlawful activities prevention act not only criminalises the fundamental rights to association, free speech, and equality but also blurs the line between political dissent and criminal activity by making certain ideologies, books, and beliefs unlawful. This creates a political culture in which certain organizations and groups associated with the ruling classes are forbidden. As the largest democracy in the world, the freedom to dissent has become an essential component of every basic right that every Indian person, whether they live in India or overseas, is given. It is undeniably true that UAPA fosters executive overreach and offers many examples to support this claim.
Because of how vaguely the UAPA laws are written, they ban an excessively wide spectrum of expressive activities. When targeted remarks do not advocate, incite, or promote violence, these prohibitions may be arbitrarily applied to a wide range of situations. Furthermore, the UAPA act’s limits on freedom of speech and expression threaten unacceptable broad swaths of protected speech rather than being carefully targeted to the objectives of security, sovereignty, or integrity. These legislative frameworks for combating terrorism strengthen the state’s coercive capabilities. The justification for enhanced powers has two components. On the one hand, taken from the logic of masculinist protection, where a powerful state is wanted for the protection of citizens, and based on the reasoning of compelling necessity not protected by law. An analysis of individual UAPA cases in India demonstrates how the principles of the formation of subservient citizens, as well as the expanded legal authority of coercion, are used to operate the masculinist security state. Activists are accused of violating several provisions of the arbitrary UAPA, including Meeran Haider, Safoora Zargar, and Umar Khalid. The state is attempting to curse the democratic rights movements that have arisen from resistance to the communally charged CAA. Journalists who have sought to document the struggles the Kashmiri people have endured, notably during the Covid-19, like as Masrat Zahra, Mushtaq Ganaie, and Gowhar Geelani, have drawn the ire of the state and been arrested under the UAPA legislation. The fact that even carrying out journalistic obligations is considered a terrorist act is a sobering indictment of our day.
For example, the UAPA has been used to imprison individuals who are unlikely to be involved in heinous plots against the state, such as professors, lawyers, and social activists. The chargesheets that serve as the initial proof of such heinous and nefarious conspiracies mostly rely on damning papers that industrious cops dug up from a single laptop. These documents are rife with peculiar and improbable elements.
Phrasing of the Act:
There seems to be quite a lot of dissatisfaction in the higher judiciary about the burden placed on their shoulders by the rising number of UAPA cases. The phrasing of the act is so wide and sweeping, that it gives a government powers to practically put under arrest and detain anyone it finds inconvenient or an obstacle to its political aims. And the mere production of a chargesheet before the court seems to provide prima facie basis for denial of bail. Even the necessity of filing chargesheet within ninety days is waived on the ground that the crime is grave beyond imagination, and far too complex for preliminary investigation to be completed in ninety days. Further, not to speak of a real crime against the State, even a supposed intention is enough to commit the accused in the clutches of police or security agencies.
This allows malicious prosecution, sometimes years even to produce a chargesheet. And then at last, the court has to examine a complicated and confusing morass of details spun out to a never-ending chain of guesses and hunches resting on faint footprints on shifting sands. A clear decision on the status of the evidence becomes impossible. And no wonder, rather than declaring the state biased in a matter of serious threat to national security, the court sometimes is tempted to defer the onerous task of arriving at a definite conclusion by dismissing the argument for defence as inconclusive. And hapless detainees have to spend years waiting for the long-winded trial to come to an end. And that too not because the crime itself is planned with hideous subtlety and meticulous design, but because in fact there is too little solid material to grasp firmly.
Of late such cases have proliferated to such an extent that many members of the higher judiciary must have been worried. On the one hand, there is the citizen’s priceless birthright of freedom, and on the other, the perceived grave threat to the state. Add to it the growing chorus of serious journalists, responsible lawyers, reputed retired bureaucrats and senior police officers, eminent jurists and academics who protest bitterly against rampant abuse of law under the garb of protecting the state.
The country has been split into two factions as a result of this rule. One side supports this extremism and believes that India’s terrorist operations could not be stopped without such strict legal restrictions. The opposing faction claims that this law prevents India’s social fabric from being ruled by democracy. Additionally, because of this law’s ambiguity, it is simpler to take advantage of the weaker groups and marginalized members of Indian society or any group the government views as a danger. Against the instances mentioned under UAPA, a propensity to gloss over the important subtleties has been seen. Due to improper investigation and procedural mistakes, the accused are detained in prison for several years while their case keep on pending. It’s possible to argue that this Act serves as a political tool to restrict civil freedoms while disguising it as a legal process since everyone and everyone may now be classified as a “terrorist.”
Challenge in the Bombay High Court
Earlier this year, the Bombay High Court issued notice to the NIA on a plea filed by Bhima Koregaon case accused Anand Teltumbde challenging the strict bail provision in the Unlawful Activities (Prevention) Act. Assailing Section 43D of this law, the academician argued that it created a huge hurdle for any person to be granted bail. Lamenting that the wording of the Act precludes the court from even superficially examining the case of an accused, he urged the HC to overturn the Special NIA court’s bail rejection order.
Moreover, he expressed the apprehension that he might remain incarcerated for many years as the central agency intends to examine over 200 witnesses. As an alternative to bail, Teltumbde sought that he should be placed under house arrest as part of his judicial custody instead of prison. In his plea, he also accused the NIA of misusing the scope of the term “front organisation” citing that its definition is too broad. The HC bench comprising SS Shinde and NJ Jamadar has directed the central agency to file a reply within three weeks.
Charges against Anand Teltumbde
Violence had erupted at Koregaon-Bhima village in Pune district on January 1, 2018, where supporters had gathered to commemorate the 200th anniversary of the Battle of Bhima Koregaon. This resulted in the death of one person and leaving several injured. Subsequently, the Pune police arrested activists such as Sudha Bharadwaj, Shoma Sen, Arun Ferreira, and Vernon Gonsalves, Surendra Gadling, Sudhir Dhawale and P Varavara Rao for allegedly inciting the Bhima Koregoan violence through their speech at the Elgar Parishad meeting on December 31, 2017.
Teltumbde, a professor at the Goa Institute of Management has been accused of organising the Elgar Parishad event and for having links with banned organisations. In January 2020, the case was transferred to the NIA.
Related:
No coercive steps to be taken against journalist, lawyers charged by Tripura Police: Supreme Court
What does it take to secure bail under UAPA?
Mere association or support to terror organisation, not sufficient to attract UAPA: SC
Do citizens today have the right to peacefully oppose their government?