Why Delhi HC’s taunt on UAPA ‘misuse’ was a timely rap

The Delhi High Court’s bail to student activists Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha in the northeast Delhi riots case along with the tart observation that the state in its “anxiety” to suppress dissent blurred the line between the right to protest and terrorist activity, has yet again sparked debates on the controversial Unlawful Activities Prevention Act (UAPA) and its ‘misuse’ to muffle dissent.

Narwal, Kalita and Tanha were booked under the stringent UAPA in connection to a case related to the northeast Delhi riots, triggered in the midst of protests against the Citizenship Amendment Act last year.

According to National Crime Records Bureau (NCRB) data, 4,231 cases were booked under UAPA and 5,922 people were put behind the bars between 2016 and 2019. However, charge sheets were filed only for 1,306 cases – this means only 22 per cent of the accused people and 30 per cent of the registered cases were investigated.

A mere 2.2 per cent of cases registered under UAPA between 2016 and 2019 ended in conviction, Union Minister of State for Home G Krishan Reddy informed the Rajya Sabha. Of the 5,922 people arrested within the period, only 132 were convicted, he added.

Quoting the NCRB report, Reddy also told the Upper House that in 2019, 1,948 cases were registered under UAPA across the country. But the prosecution failed to prove the charges against anyone and 64 people were acquitted by the court. In 2018, out of 1,421 UAPA cases, only four cases were successfully charged, while 68 of these people were acquitted by the court.

UAPA: Against terrorism or dissent?

Under UAPA, originally framed to prevent unlawful activities, the central government may designate an individual as a terrorist or organisation as a terrorist organisation. An investigation agency can probe the accused for 270 days without filing a charge sheet and the time frame can also be increased by taking permission from the court under UAPA. In normal cases, the probe period is 90 days.

While the previous versions of the Bill allowed only groups to be designated as terrorists, the amended version of the law, brought in by the government in July 2019, can designate an individual as a terrorist without trial.

Under Section 43(D)(5) in the UAPA, no person accused of an offence punishable under this Act can be released on bail or on his own bond unless the public prosecutor has been given an opportunity of being heard on the application for such release.

Due to such provisions, the law has often been termed as “anti-people” and “anti-democracy”.

“In recent times, UAPA has just been used to suppress the voice of those who speak against the government. The law is more to harass innocent people than identifying terrorists,” said Vasu Kukreja, an advocate based out of Delhi.

Indian Cultural Forum (ICF), a group of various advocates, activists, writers and journalists describes the law as a tool for the government to “proscribe individuals as terrorists” and one that “permits more officers of the National Investigation Agency to probe cases.”

“While passing the law in Rajya Sabha in 2019, Home Minister Amit Shah claimed, ‘UAPA’s only purpose was to fight terrorism,’ but now it is being used as a tool for intimidating citizens and eliminating opposition being faced by the government on various of its policies,” said a press release by ICF.

Kavita Srivastava, national secretary, People Union for Civil Liberties (PUCL), said, “The use of UAPA in 13 states of the country proves that this law is being used to silence the voices of those who disagree with the central and state governments. Most of the people arrested under UAPA are tribals, writers, activists or students, who go against the ideology of the government.”

Dr. V. Suresh, a human rights lawyer, says the law is used today to “murder democracy”. “Under this law, the agency need not file a charge sheet even for a year if they want. The bail conditions are also very strict. Under this law, the onus is on the accused to prove his innocence.”

An accused under the law can be jailed for seven years.

Controversial arrests under the law

Whether it is 81-year-old Marxist poet from Telengana Varavara Rao or Sudha Bharadwaj, a 60-year-old civil rights activist who spent 30 years working for the marginalised in Chhattisgarh, the UAPA had its fair share of controversial arrests.

Rao and Bhardwaj were arrested in the Bhima Koregaon case along with academics Anand Teltumbde, Shoma Sen and Hany Babu, tribal rights activists Stan Swamy and Mahesh Raut, and writer-researcher Gautam Navlakha among others. They were accused of inciting violence between Dalits and Marathas in Bhima Koregaon on January 1, 2018 when Dalits were celebrating 200 years of a win over Marathas in the Battle of Bhima Koregaon.

The law drew opposition from many, especially when the activists were booked under UAPA while those associated with RSS were set free.

What fueled the protests against the law was the mistreatment meted out to the jailed activists. Eighty-four year Stan Swamy, who suffers from Parkinson’s disease was given a straw and sipper weeks after he requested it.

Swamy’s plea for bail on health grounds was also rejected as it is not allowed in UAPA. Swamy in his medical application had made it clear that he has lost hearing in both ears, had multiple falls while in jail and has been operated for hernia twice.

It is only after Swamy and Rao tested positive for COVID that they were taken to hospitals.

Nearly 50 international figures, including Nobel laureates, academics, lawyers and European parliamentarians, and organisations have written to the authorities in India demanding an “immediate release” of incarcerated activists as many of them are aged and are at a higher risk of contracting COVID-19.

Siddique Kappan, a Kerala based journalist, was arrested under UAPA on October 5, 2020, while he was on his way from Delhi to Hathras in Uttar Pradesh where a 19-year-old girl was gang-raped and murdered. His health deteriorated after he contracted COVID-19 in jail, prompting Kerala Chief Minister Pinarayi Vijayan to write to Chief Minister Yogi Adityanath. Vijayan said that Kappan was chained to his hospital bed even while his health was in a precarious condition and urged that he be treated humanely.

On April 20, 2020, Masrat Zahra, a 26-year-old internationally-acclaimed photojournalist was booked by Jammu and Kashmir police under Section 13 of UAPA and Section 505 of the Indian Penal Code. It is to be noted that the police statement only called her a ‘Facebook user’ and not a journalist.

On the same date, Delhi Police booked Jamia Millia Islamia students Meeran Haider and Safoora Zargar under the UAPA, in a case related to northeast Delhi riots. They also booked former Jawaharlal Nehru University student Umar Khalid.

“Union government is saving the real culprits, whereas, young students, activists and coordination committee members who participated in the Anti-CAA protests in different parts of India are being wrongfully arrested. It is an engineered attempt to save indictable people affiliated to the right-wing ruling party like Kapil Mishra, Anurag Thakur, Parvesh Verma, Sambhaji Bhide and Milind Ekbote, who are still at large,” ICF added.