A matter of grave concern is that human rights activists and journalists are now being arrested under the Unlawful Activities Prevention Act (UAPA) and civil liberties are being blatantly suppressed. All the three arms of the state - the legislature, the executive and the judiciary are bent on persisting with this draconian statute and so the protests against its misuse are not making any headway.
Terrorism is currently the biggest bogey word for global capitalism and has been for quite some time. Any armed struggle against a capitalist state, all states have been openly capitalist now since the disintegration of the USSR in 1991, is deemed to be a terrorist activity and can be suppressed using draconian laws that violate the fundamental rights of freedom of speech and expression, equality and of life and liberty. Most states have such draconian laws and India is no exception. Legitimacy for these draconian laws are derived from resolutions passed from time to time for the suppression of terrorism by the United Nations Security Council. So India too has the draconian UAPA which was initially enacted in 1967 but has been amended since in 2004, 2008, 2013 and most recently in 2019 to make it one of the most violative of the United Nations Universal Charter of Human Rights.
The main provisions are as follows -
1. Organisations and Individuals can be notified as unlawful and terrorist and their names put in a schedule and any persons associated with them are culpable. Even corresponding with them is an offence. If the names of persons are mentioned in the correspondence of these organisations and individuals then they too become culpable.
2. Apart from such activities as counterfeiting, bombing, murdering etc which are patently terrorist acts even rioting, inciting and spreading violence, enmity and religious disharmony are also considered to be unlawful activities.
3. Anticipatory bail is not available to the accused.
4. The quality of evidence required to incriminate people is not required to be of a high standard even if they may not stand scrutiny during trial. Such evidence is to be prima facie considered to be enough to arrest a person and then to deny her bail.
These provisions have been made to ensure that those accused of terrorism can be kept incarcerated for a long time.
However, the UAPA provides the executive with a handy tool to suppress legitimate democratic dissent also because any flimsy evidence can be concocted to implicate a protester even if she is not involved in terrorist activity. The bogey of terrorist violence makes the courts also acquiesce with this instead of making a distinction between democratic protests and terrorist activities. The fear of the courts, which has been expressed in many judgements on the issue, is that making such a distinction would dilute the stringency of the law and prevent its effective use against terrorists.
The spotlight came on this misuse of the UAPA when eleven people were arraigned under this Act for the violence that followed the Dalit celebration at Bhima Koregaon on January 2nd 2018. The police after investigations, instead of arraigning the Savarnas who had started the violence instead came up with the charge that the Maoists, who are engaged in an armed struggle to overthrow the state and are a banned organisation under the UAPA, had planned the violence. The police submitted a trail of emails to implicate eleven people across the country including lawyers and human rights activists, who they said were urban naxals who provided over ground support to the Maoists. Despite it being pointed out that the emails that have been purported to have been recovered from the computers of the accused do not have proper headers and addresses and so won't stand scrutiny during trial, the courts right up to the Supreme Court have refused to intervene either to quash these cases or to at least give bail, saying that the provisions of the UAPA are such that any evidence is to be prima facie accepted and can only be contested during trial. The submission of the accused activists, that support for an ideology without active involvement in waging a war against the state cannot be considered to be terrorist activity, has not found any resonance with the judges.
This effectively means that like in the case of earlier UAPA accused, these people will also have to spend anything from four to ten years in prison before being acquitted due to the bad quality of evidence. To date the conviction rate under this Act is less than 1% but invariably it takes a long time for the cases to be disposed mainly due to the dillydallying by the prosecution. After the Bhima Koregaon activists, those of the Krishak Mukti Sangram Samiti in Assam were incarcerated under the UAPA and then a few days ago three people associated with the protests against the Citizenship Amendment Bill in Delhi and three journalists in Kashmir have been implicated under UAPA. In all these cases in addition to various sections of the Indian Penal Code, the UAPA has also been slapped on the accused just to create an atmosphere of fear and dissuade others from protesting. This is a dangerous trend because the state can easily incarcerate protesters for long periods of time and thus kill all protests.
What is very disappointing is that the Supreme Court has refused to intervene to stop this blatant misuse of the law on the specious plea that any reading down of the provisions on bail would reduce its utility to fight terrorism and political armed insurgency. This terror of a law now hangs like a Damocles' sword on rights activists in this country.
Terrorism is currently the biggest bogey word for global capitalism and has been for quite some time. Any armed struggle against a capitalist state, all states have been openly capitalist now since the disintegration of the USSR in 1991, is deemed to be a terrorist activity and can be suppressed using draconian laws that violate the fundamental rights of freedom of speech and expression, equality and of life and liberty. Most states have such draconian laws and India is no exception. Legitimacy for these draconian laws are derived from resolutions passed from time to time for the suppression of terrorism by the United Nations Security Council. So India too has the draconian UAPA which was initially enacted in 1967 but has been amended since in 2004, 2008, 2013 and most recently in 2019 to make it one of the most violative of the United Nations Universal Charter of Human Rights.
The main provisions are as follows -
1. Organisations and Individuals can be notified as unlawful and terrorist and their names put in a schedule and any persons associated with them are culpable. Even corresponding with them is an offence. If the names of persons are mentioned in the correspondence of these organisations and individuals then they too become culpable.
2. Apart from such activities as counterfeiting, bombing, murdering etc which are patently terrorist acts even rioting, inciting and spreading violence, enmity and religious disharmony are also considered to be unlawful activities.
3. Anticipatory bail is not available to the accused.
4. The quality of evidence required to incriminate people is not required to be of a high standard even if they may not stand scrutiny during trial. Such evidence is to be prima facie considered to be enough to arrest a person and then to deny her bail.
These provisions have been made to ensure that those accused of terrorism can be kept incarcerated for a long time.
However, the UAPA provides the executive with a handy tool to suppress legitimate democratic dissent also because any flimsy evidence can be concocted to implicate a protester even if she is not involved in terrorist activity. The bogey of terrorist violence makes the courts also acquiesce with this instead of making a distinction between democratic protests and terrorist activities. The fear of the courts, which has been expressed in many judgements on the issue, is that making such a distinction would dilute the stringency of the law and prevent its effective use against terrorists.
The spotlight came on this misuse of the UAPA when eleven people were arraigned under this Act for the violence that followed the Dalit celebration at Bhima Koregaon on January 2nd 2018. The police after investigations, instead of arraigning the Savarnas who had started the violence instead came up with the charge that the Maoists, who are engaged in an armed struggle to overthrow the state and are a banned organisation under the UAPA, had planned the violence. The police submitted a trail of emails to implicate eleven people across the country including lawyers and human rights activists, who they said were urban naxals who provided over ground support to the Maoists. Despite it being pointed out that the emails that have been purported to have been recovered from the computers of the accused do not have proper headers and addresses and so won't stand scrutiny during trial, the courts right up to the Supreme Court have refused to intervene either to quash these cases or to at least give bail, saying that the provisions of the UAPA are such that any evidence is to be prima facie accepted and can only be contested during trial. The submission of the accused activists, that support for an ideology without active involvement in waging a war against the state cannot be considered to be terrorist activity, has not found any resonance with the judges.
This effectively means that like in the case of earlier UAPA accused, these people will also have to spend anything from four to ten years in prison before being acquitted due to the bad quality of evidence. To date the conviction rate under this Act is less than 1% but invariably it takes a long time for the cases to be disposed mainly due to the dillydallying by the prosecution. After the Bhima Koregaon activists, those of the Krishak Mukti Sangram Samiti in Assam were incarcerated under the UAPA and then a few days ago three people associated with the protests against the Citizenship Amendment Bill in Delhi and three journalists in Kashmir have been implicated under UAPA. In all these cases in addition to various sections of the Indian Penal Code, the UAPA has also been slapped on the accused just to create an atmosphere of fear and dissuade others from protesting. This is a dangerous trend because the state can easily incarcerate protesters for long periods of time and thus kill all protests.
What is very disappointing is that the Supreme Court has refused to intervene to stop this blatant misuse of the law on the specious plea that any reading down of the provisions on bail would reduce its utility to fight terrorism and political armed insurgency. This terror of a law now hangs like a Damocles' sword on rights activists in this country.
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