During the 48th session of the Human Rights Council, UN High Commissioner for Human Rights, Michelle Bachelet called for leadership from the Human Rights Council members. While her address started with crises of pollution, climate change and biodiversity amplifying conflicts, tensions and structural inequalities, there were other humanitarian issues that were also flagged.
These included, for India, the restrictions on public assembly, and frequent temporary communication blackouts in Jammu and Kashmir. “While hundreds of people remain in detention for exercising their right to the freedom of expression, and journalists face ever-growing pressure. Ongoing use of the Unlawful Activities (Prevention) Act throughout India is worrying, with Jammu & Kashmir having among the highest number of cases in the country. While I acknowledge the Government’s efforts to counter terrorism and promote development in the region, such restrictive measures can result in human rights violations and foster further tensions and discontent,” she said during the session.
The statement may be read here.
Voices against UAPA
The rampant use of Unlawful Activities (Prevention) Act (UAPA) is being flagged time and again by many within the country and as student activists incarcerated for the Delhi violence of 2020 under the garb of hatching a “conspiracy” and even as the accused in the Bhima Koregaon case continue to languish in jail, all under UAPA, the debate continues.
The UAPA is known for being used to incarcerate persons for long periods of time without trial and without framing charges, merely on basis of grounds with very slim chances to the detenu to defend himself. More often than not, the detenu’s detention is confirmed and keeps getting extended time and again until a higher court pulls the trigger on this system of oppression and grants bail.
Senior Advocate Mihir Desai, while speaking at an event honoring slain journalist Gauri Lankesh organised by Gauri Memorial Trust and Citizens for Justice and Peace (CJP), pointed out that even though the UAPA was enacted by the United Progressive Alliance (UPA) government, the ruling government has mastered the art of using it in a very targeted way. He further explained how UAPA is in effect, a kind of preventive detention law that attempts to detain a person for a long period of time. “The main provisions of UAPA are such that it enables preventive detention of people for long periods of time. UAPA had started as a law that banned organisations but now it’s an anti-terror law,” he said.
He then highlighted the series of amendments to the anti-terror law that made it even more stringent and harsh. He said that earlier, organisations could be banned because of “hate speech” and “secession” but due to the 2004 amendment to UAPA, organisations can now be banned for “spreading disaffection against the country”. He added, “Disaffection is such a wide term, the same language is used in the sedition provision in the Indian Penal Code.” Further, through the 2013 amendment to UAPA, the ban period which was earlier for 2 years, was increased to 5 years.
He explained how the National Investigation Agency (NIA), under the Centre, takes over investigation of cases and in a way dominates the investigation of cases. He said that as per the latest data, in 66 percent of the cases that are dealt by the National Investigation Agency, people aren’t charged for any actual incident of violence or finding arms, but only on grounds of “conspiracy”. He referred to the Bhima Koregaon case, where human rights activists have been arrested because there was an alleged conspiracy.
State surveillance
During the hearing on the implications of the Pegasus spyware, Bachelet at the outset stated that the unprecedented level of surveillance across the globe by state and private actors is incompatible with human rights.
“The targeting of human rights defenders, journalists and politicians is just another example of how tools allegedly meant to address security risks can end up being weaponized against people with dissenting opinions,” she said. “Surveillance measures can only be justified in narrowly defined circumstances, based on the law. In addition, such measures must be both necessary and proportionate to a legitimate goal. Government hacking at the scale reported is never going to meet these criteria,” she continued.
She also gave a call to all States that “until compliance with human rights standards can be guaranteed, governments should implement a moratorium on the sale and transfer of surveillance technology”.
The statement may be read here.
In early August, UN experts also called on all States to impose a global moratorium on the sale and transfer of surveillance technology until they have put in place robust regulations that guarantee its use in compliance with international human rights standards.
Pegasus and Supreme Court
Presently the Supreme Court is apprised of the matter related to the use of Pegasus spyware allegedly used against Indian citizens. The Solicitor General of India, Tushar Mehta on behalf of the Union government told the court that the government cannot disclose the use of Pegasus on the affidavit, because of national security reasons. However, he insisted that government interception is not illegal and that the government is in compliance with the laws. He conceded that a committee of domain experts will look into the petitioners’ contentions and submit the report before the court but the government cannot file an affidavit and make the document public.
Related:
National security laws being misused by State to establish executive supremacy: Gautam Bhatia
Current regime has mastered the art of using UAPA selectively: Mihir Desai
Centre refuses to disclose use of Pegasus in affidavit, pleads national security