In a socially fragile and fractious environment, Indian lawmakers have strived to frame laws which cannot be easily challenged in a court of law. The most draconian is the Unlawful Activities (Prevention) Act.
It is a law aimed at making powers available to the state for dealing with activities directed against the integrity and sovereignty of India. Bail under the UAPA is difficult as the state cites a variety of reasons – even WhatsApp messages and social media platforms – for detaining/arresting a person under the Act.
Last month, the government informed Parliament that while cases under the UAPA increased since 2016, the charge sheeting has been poor.
According to data provided by the Ministry of Home Affairs (MHA) in the Rajya Sabha, 3,005 cases were registered under the anti-terror law between 2016 and 2018, but chargesheets were filed in only 821 cases, indicating that investigations could be completed only in about 27% of these cases.
To a question on UAPA cases, MoS (Home) G Kishan Reddy told Rajya Sabha in a written reply that a total of 922, 901 and 1,182 UAPA cases were registered across the country in 2016, 2017 and 2018, respectively. In these cases, 3,974 people were arrested: 999 in 2016, 1,554 in 2017, and 1,421 in 2018.
Pursuant to the acceptance of recommendations of a committee, the Constitution (Sixteenth Amendment) Act, 1963 was enacted to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India.
In order to implement the provisions of the 1963 Act, the Unlawful Activities (Prevention) Bill was passed by Parliament in 1967. Since then there have been at least half-a-dozen amendments in the 1967 Act, including the latest one in 2019, where individuals can be tagged under Terrorist Amendment Act.
Notable recent arrests have included Kobad Ghandy, Arun Ferreira, Binayak Sen, Gaur Chakraborty, Thiru Murugan Gandhi, Sudhir Dhawale, Shoma Sen, Varavara Rao and Gautam Navlakha – most of them are rights activists perceived to be sympathizers of proscribed Maoist outfits. Youngsters too have been arrested under the UAPA. They include Masrat Zahra, Meeran Haider, Safoora Zargar, Sharjeel Imam, Devangana Kalita and Umar Khalid.
How bail becomes difficult
If a person is charged with an offence under the UAPA, they cannot get anticipatory bail even if released by the police, and getting bail is almost impossible. A UAPA amendment in 2008 raised the limit of detention for a terror accused in police custody to six months. Even where the terror accused in custody moves a bail application, the amendment prevents his release on bail unless the public prosecutor has been given a chance to be heard on the application for such release.
In the Bhima Koregaon cases, as many as 12 academics, lawyers and activists have been detained, many since June 2018 and, despite bail applications in high courts, no bail has been granted.
Even before the Delhi 2020 Communal Violence related cases, dozens of Muslim youth –several or most of whom have, after 8-14 years been acquitted of charges – remained incarcerated without the remedy of bail.
Recently, the sole exception was Safoora Zargar, a student of Jamia Millia Islamia and also coordinator of the Jamia Coordination Committee (JCC), who was able to secure bail; this happened solely because the state “conceded” this case.
On June 16 this year, a Delhi court granted police a 60-day extension under the UAPA to file a chargesheet in a Delhi violence case, prolonging the period before which arrestees become entitled to statutory bail.
This and the recent bail rejections under the Act have led to a renewed focus on its harsh provisions. Overly broad offences and onerous bail conditions effectively condemn many to years of incarceration without trial.
When it was originally enacted, the UAPA did not have many restrictions. In fact, the law then dealt only with ‘unlawful’ associations and did not contain any anti-terror provisions. The history of these anti-terror and bail provisions can be traced back to the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). TADA extended the period of incarceration without a charge sheet to a year and prohibited bail unless the court was satisfied that the accused was not guilty of the alleged offence. Under ordinary law, unless a charge sheet is filed within a maximum of three months, the accused gets an automatic right to bail.
TADA was enacted as a supposedly temporary measure, an ‘extraordinary’ law necessitated by the ‘extraordinary’ threat posed by terrorism at the time. While it was renewed by Parliament for a decade, it was finally allowed to lapse in 1995 amidst fierce criticism of its rampant abuse. But nearly all its provisions, including a modified version of its restrictions on bail, were brought back in the Prevention of Terrorism Act, 2002 (POTA). POTA too had a sunset clause and required renewal by Parliament, and it too faced widespread critique of its misuse. But when POTA was repealed in 2004, most of its provisions were given a permanent home in the UAPA, which does not have any sunset clause.
In 2008, in the wake of the 26/11 terror attacks, the UAPA was amended and restrictions on bail were introduced into the Act for the first time. For certain UAPA offences, the period of incarceration without a charge sheet can be extended up to six months and no person can be granted bail if the state’s accusations seem prima facie true.
In the 2019 amendment, UAPA provisions were made even more stringent. Under it, individuals can be declared as terrorists and their properties seized.
Home Minister Amit Shah had said the law, that would be used only to tackle terror, would help agencies remain four steps ahead of terrorists. Shah said terrorist acts are committed not by organizations but by individuals.
Declaring an organization as a terrorist outfit will not stop the individuals behind it. Not designating individuals as terrorists would give them an opportunity to circumvent the law and they would simply gather under a different name and keep up their terrorist activities.
Umar Khalid case
In the recent case, Umar Khalid, former Jawaharlal Nehru University (JNU) student, was arrested by Delhi Police Special Cell under the UAPA for his alleged role in the anti-CAA/NRC protests that led to riots in north-east neighbourhoods of the national capital in February.
Khalid’s arrest came at a time when other prominent figures such as CPI-M General Secretary Sitaram Yechury, Swaraj Abhiyan President Yogendra Yadav, Delhi University professor and activist Apoorvanand, economist Jayati Ghosh, and documentary filmmaker Rahul Roy have been named in a supplementary chargesheet by the Delhi Police in the riot cases.
Umar Khalid’s name had also come up in the ‘disclosure statement’ made by Jamia Millia Islamia’s Gulfisha Fathima in which she named Umar along with others. In her statement, she said, “The crowd had started growing according to the plan, big leaders and lawyers started coming in to provoke and mobilise this crowd, including Omar Khalid, Chander Shekhar Ravan, Yogendra Yadav, Sitaram Yechury, and lawyer Mahmood Pracha.”
Similar, ‘disclosure statements’ were made by Pinjra Tod members Devangana Kalita and Natasha Narwal. All the three face charges under the UAPA.