When the Law Curbs Democratic Freedoms: India’s Anti-Terror Law, the UAPA

Image Courtesy: Amnesty
Section 2(1)(o) of the Unlawful Activities (Prevention) Act, 1967 defines “unlawful activity” to mean any action, by way of words, acts, signs, visible representation or otherwise, by an individual or association that inter-alia causes or is intended to cause disaffection against India. The politico-cultural outfit, Kabir Kala Manch, which is renowned for its revolutionary songs highlighting the plight of casteism, communalism class-based oppression, and social inequality in India, was targeted under the UAPA for its alleged links with Naxal groups in 2011. They were booked by Maharashtra’s Anti-Terrorism Squad for their connections with the banned CPI (Maoist). The notorious national security legislation thrives on its ambiguity; the law in books has a funny way of materializing into law in action.
UAPA: Old Wine in a New Bottle
The UAPA, originally enacted in 1967, aimed at curtailing fundamental freedoms under article 19 of the Constitution, against a backdrop of reviving political stability post the tumultuous Indo-China War.

Since then, it has undergone several changes, in substance and procedure. The second black law enacted during Congress rule was the Terrorist and Disruptive Activities (Prevention) Act in 1985, which was overtly used by the state to suppress political dissidents. Enacted ostensibly to curb socially disruptive activities, particularly in Punjab, what TADA actually did was get at the opponents of the regime in power. After being subject to widespread criticism for giving sweeping powers to law enforcement agencies, TADA was repealed in 1995. The subsequently enacted draconian Prevention of Terrorism Act, 2002 post-9/11 was gravely criticized by civil rights groups for sanctioning arbitrary State action at the cost of civil liberties of citizens. The People’s Tribunal on POTA and Other Security Legislations established by eminent human rights activists at the Press Club in New Delhi on July 16, 2004 established that the statute was being used to terrorize civilians and recommended that POTA be repealed. On September 17, 2004, the UPA government approved an ordinance to repeal POTA in accordance with its National Common Minimum Programme that condemned the abuse of POTA under the BJP-led NDA alliance. President Kalam, on the aid and advice of the UPA government,simultaneously promulgated an ordinance to amend the existing UAPA purporting to fill the lacuna created by the repeal of POTA in punishing terrorism-related offences.
The 2004 amended version of the UAPA in fact includes certain terrifying provisions of the POTA. For instance, the scheduled listing of terrorist organizations was blindly copied without a willingness to revisit it, and the process of such listing continued to remain devoid of any statutory procedure. Further, section 21 of the repealed statute, which criminalized support given to terrorist organizations, has been included with an intent requirement. The provision has received objections for the vagueness of the term,‘support’, that could enable the State to brand prospectively anyone as a criminal. Further, the amended UAPA incorporated provisions regarding the admissibility of evidence collected through interception of communication without any safeguards.
Revamped as India’s principal federal counterterrorism law, the UAPA was swiftly amended after a single day of debate immediately subsequent to the 2008 26/11 attacks in Mumbai. Provisions that severely hamper civil liberties and fair trial include the extension of detention periods to 180 days instead of 90, police custody to 30 days instead of 15, reversal of burden of proof for grant of bail, and presumption of guilt for possession of arms with a belief that such substances were used in the commission of a terror act. Ambiguous language pervades the text of the statute, and in turning a blind eye to State torture and arbitrary detentions, the law effectively condones it. Under section 3(2) of the UAPA, the State has the right to withhold evidence from the incriminated organization on grounds of public welfare, and the ambit of a ‘terrorist act’ has been expanded inexplicably to include ‘disruption of supplies or services essential to the community’. As a blatant attack on constitutional guarantees and fundamental freedoms, the UAPA is effectively a political tool to curb dissent and couch any act of subversion in the language of outrage-demanding terrorism.
Be it G.N. Saibaba, who was arrested under the UAPA for his political beliefs or Jyoti Babasaheb Chorge, who was taken into custody for being 'in possession of Maoist literature'; the UAPA licenses law enforcement agencies to arrest, search and seize without a warrant, and effectively harass minority communities disproportionately. The Hubli Conspiracy Case of 2011 is just one of many instances where State agents have conveniently confused copies of the Quran to be Jihadi material to arrest 18 Muslims under the UAPA.
The 2008 Bill was vehemently opposed by CPI, CPIM, JD, AIDMK, BJD and MIM , albeit in vain, for disproportionately affecting Muslims, Dalits, and tribals, who were all branded as Maoists. According to the Prison Statistics of India 2014 released by the National Crime Records Bureau, Muslims comprised of 47.8% of the inmate population, but barely 16.4% of convicts. With a meagre country-wide population of 14.2%, Muslims as of 2015 constituted 20.9% of undertrial prisoners and 15.8% of total convicts. Kerala jails house 92% Muslims while the remaining 8% are dismissed as Naxalites. An analysis of the caste-wise composition of prison populations in 2015 shows that 75.2% of detenues belonged to OBC, SC and ST categories. State-sanctioned sweeping powers are effectively supplemented with imagined conceptions of disaffection against what India ostensibly means to some.
Despite Justice Thipse’s warning that a person cannot be made a criminal by the beliefs that they hold, thoughts and ideologies are constantly being persecuted and prosecuted today. The personal is always political. Director Chaitanya Tamhane’s Court explicates the quiet violence of a legal system that conflates subversion with sedition and uses the UAPA as a convenient tool to attack art and the artist. Apparently, we can live the life of inequality and oppression, but we ought not speak about it. Interestingly, the exercise of civil liberties to hold discussions on socio-economic struggle are curtailed under the garb of promoting a radical left movement, which is already targeted for its extremist views and ostensible methods of violence; the extremist right however marches on seemingly scot-free.
The need of the hour is a definition of terrorism that does not allow for sweeping discretion at the behest of police officials marred by their own political pressures and ideological biases. The need of the hour is a revamped anti-terrorism legislation with adequate protections accorded to those indiscriminately charged under it; one that does not allow for dissenting and activist art to be aggravated to the status of an unlawful activity at the cost of our fundamental right to free speech, expression and association.
Till then, the intricacies of how the UAPA continues to operate today should not create a chilling effect of blinded conformity to the ruling government’s specific vision of India, disaffection against which is deemed unlawful. Till then, human rights, civil liberties and dissent should be inculcated into our political and social cultures, public spaces and sites of struggle, as resiliently as that highlighted by Deepak Dengle, a member of the Kabir Kala Manch recently granted bail, in the following poem:


(The author is a student of Jindal Global Law School)
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