On September 13, 2020 former PhD scholar from Jawaharlal Nehru University and a political activist, Umar Khalid was arrested by the special cell of Delhi police following 11 hours of detailed interrogation by the police. Umar Khalid was charged under the sections of Unlawful Activities (Prevention) Amendment Act of 2019 under FIR 59 of 2020 which was filed on March 6th of 2020 in relation to the Delhi violence which broke out in February which claimed 53 lives. This was in the context of raging nationwide demonstrations against the Citizenship (Amendment) Act of 2019 which makes sweeping changes to the original statute including religious criteria being one among them. Umar is charged under four sections of the UAPA (2019) which includes abetment, causing death, fundraising and conspiracy. The Delhi police to back up this claim has claimed in an affidavit filed on July 13th that the motives behind anti-CAA protests was “secessionist” in nature and were using “the façade of civil disobedience” to destabilize the government. An FIR number 65 of 2020, the police further claim that Khalid hatched a broad conspiracy along with Tahir Hussian to defame and malign the duly elected government at the centre in relation to the CAA and link it with the visit of the U.S. President Donald Trump. The affidavit further stated that 750 FIRs and 200 charge sheets have been filed relating to communal violence in Delhi. The Delhi police claim “a holistic view of all the three phases and the investigations which have been conducted so far in individual FIRs and the leads which the Delhi Police have been able to ascertain, clearly demonstrates that the present incidents of violence were not instigated in a spur of the moment or because of any tensions between two communities for an obvious religious cause, but were carefully engineered and funded by mischievous elements and fringe groups, who, in pursuit of their motivated hidden agendas, instilled a false fear and panic in the minds of a section of society and provoked/ instigated them to take law and order in their hands and resort to violence.”
Image Credits: Arre
However, Khalid does not stand alone in being a recent victim of the draconian UAPA and the significant toll it takes on the question of due process of the law, civil liberties and on the whole, the question of justice and the statutory mandate to determine “truth” while adjudicating on “crimes”. Several of the anti-CAA protestors ranging from students to academics are detained under the UAPA framing precarious charges and absence of transparency. Last year, prominent social activists were detained under the UAPA who were allegedly involved in Bhima-Koregaon violence without a shred of evidence. Before delving into the anatomy of the UAPA, it is imperative to look at what the home minister had to state while placing the amendment bill in the house of Parliament last year. He stated, “I believe heavy-handedness is essential to root out terrorism and not soft approach from the government. It is essential to look at the implementation of the law rather than the law itself which the opposition leaders have alleged to be draconian. Tell me, isn’t it required to designate an individual or individuals who take part in a terrorist act a terrorist or not? Not just those, those who aid and abet terrorism are equally culpable in terrorist acts. Those who spread the frenzy of terrorism through possession and disbursement of terrorist material and terrorist propaganda are also required to be prosecuted. And if all such individuals are designated as terrorists, I don’t think any member of parliament should have any objection.” (Emphasis mine).
Image Credits: The Statesman
Therefore, the amendment made to the UAPA 2019 is as such: “5. In section 35 of the principal Act,— (i) in sub-section (1),— (A) in clause (a), after the words "First Schedule", the words "or the name of an individual in the Fourth Schedule" shall be inserted; (B) in clause (b), after the words "United Nations", the words "or the name of an individual in the Fourth Schedule" shall be inserted; (C) in clause (c), after the words "First Schedule", the words "or the name of an individual from the Fourth Schedule" shall be inserted; (D) in clause (d), after the words "First Schedule", the words "or the Fourth Schedule" shall be inserted; (ii) in sub-section (2), for the words "an organisation only if it believes that it is", the words "an organisation or an individual only if it believes that such organisation or individual is" shall be substituted; (iii) in sub-section (3), for the words "an organisation shall be deemed to be involved in terrorism if it", the words "an organisation or an individual shall be deemed to be involved in terrorism if such organisation or individual" shall be substituted. 6. In section 36 of the principal Act,— (i) in the marginal heading, for the words "a terrorist organisation", the words "terrorist organisation or individual" shall be substituted; (ii) in sub-section (1), for the words "an organisation from the Schedule", the words "an organisation from the First Schedule, or as the case may be, the name of an individual from the Fourth Schedule" shall be substituted; (iii) in sub-section (2),— (A) in clause (b), for the words "Schedule as a terrorist organisation", the words "First Schedule as a terrorist organisation, or" shall be substituted; (B) after clause (b), the following clause shall be inserted, namely:— "(c) any person affected by inclusion of his name in the Fourth Schedule as a terrorist."; (iv) in sub-section (5), for the words "an organisation from the Schedule", the words "an organisation from the First Schedule or the name of an individual from the Fourth Schedule" shall be substituted; (v) in sub-section (6), after the words "an organisation", the words "or an individual" shall be inserted; (vi) in sub-section (7), for the word "Schedule", the words "First Schedule or the name of an individual from the Fourth Schedule" shall be substituted.”
However, the Home Minister has conveniently refused to look at the fact that Chapter 4 of the previously existing statute provides for prosecution of individuals involved in the “unlawful” and “terrorist” act. Here is what Chapter 4, Section 15 states: “[15. Terrorist act.—4 [(1)] Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security 5 [, economic security,] or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,— (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause— (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or 5 [(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or] (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or 6 [an international or inter-governmental organisation or any other person to do or abstain from doing any act; or] commits a terrorist act.”
The expanse of the definitions for “terrorist acts” or “unlawful acts” along with the inclusion of the “individual” let alone the association indicates the amass of executive power to reign in on individual citizens solely based on the presumption of a commission of an Act deemed to be “unlawful” by the State. Such expansive laws are prone to gross abuse and result in systematic erosion of institutional safeguards in place to defend individuals against the arbitrary exercise of executive power. This takes us to look at the anatomy of the UAPA which erodes civil liberties.
Being Struck By a Thought Is Not an Act of Violence/Image Credits: The Wire
First, let us look at the example of the custodial remands and the provisions under the UAPA. Under normal circumstances, an accused person under section 167 of IPC of 1973 has to be produced before the judicial Magistrate if the investigation is not complete within the 24 hours of the arrest. The transmission shall take place if and only if, “there are grounds for believing that the accusation or information is well-founded” and the magistrate must authorize detention from time to time. The magistrate cannot remand the accused of days exceeding fifteen in number. There are further checks in place. The magistrate cannot extend the total no of days on “police custody” for the accused beyond ninety days and in a timely fashion. However, ninety days of remand is only if “the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years” and sixty days for relatively minor crimes. Such measures are to ensure that the police shall not exercise brute force or act in any way which violates the custodial liberties of the accused until proven guilty. However, here comes the single biggest blow with the UAPA as a draconian alternative. The UAPA, under section 43D-(2) states: “(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),— (a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and 1. Ins. by Act 35 of 2008, s. 12 (w.e.f. 31-12-2008). 21 (b) after the proviso, the following provisos shall be inserted, namely:— “Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.”
This means indefinite detention of the accused during the pre-trial process and the police are empowered to extend the detention period by producing documents through the public prosecutor. The possibilities of subsequent emotional and physical trauma faced by the accused worsen the safeguards in place. Huffington Post reported on September 21, 2020, that a UAPA detainee Gulfisha Fatima was facing “mental and emotional harassment”. She further claimed that the jail staff called her “educated terrorist. You die inside, outside you have orchestrated riots”.
Second is the question of presumption of innocence in terms of bail for the detainee under the UAPA. Under the general law, the statutes point to what is called “anticipatory bail” for an accused to apply for when he/she perceives the actions of the police to be arbitrary and “wrongful”. The accused can apply for bail prior to the arrest in order to ensure against the misuse of powers during criminal trials by the police. This bail allows for the accused to remain away from the police custody during the course of the investigation provided that the accused shall not flee from the scene. Here, wrongful is assessed as a combination of malafide intent on the part of the police and the lack of necessity for the accused to be in custody. However, the UAPA perverts this basic but significant institutional/legal safeguard by totally disallowing anticipatory bail for all offences and placing significant barriers for the obtainment of ordinary bail. Here is what the section 43D-(5), Chapter VII under “Modified application of certain provisions of the Code states: “(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, 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: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
This effectively translates to the fact that the statute under the UAPA allows for ordinary bail if and only if, the special courts designated to try the accused and grant bail are mandatorily expected to decide upon the grant of bail based on the merit of the material solely produced by the concerned authority (police). It is imperative to remember the fact that the procedure takes place at the initial stages of the investigation. This effectively means, one, the courts cannot rely upon the contrary materials to refute the charge made and two, the incontrovertible principle that an accused is innocent until guilty is flipped around. The police are empowered to withhold undesirable material to produce in the special courts. The end result will be a long period of detention combined with the denial of bail.
The UAPA, as argued by the Home Minister now empowers the State to declare an individual a terrorist merely based on presumption and not through due process. Mere possession of the materials cannot be construed as a commission of unlawful activity. Going by that argument, if I am known to be in possession of, let us say, Mao’s Red book or Adolf Hitler’s Mein Kampf, I can be booked as a terrorist without a fair trial. It is essential to note the judgement pronounced by NIA Kochi special court Judge, Anil Bhaskar in Allen Shuhaib, Thwaha Fasal v. Union of India Crl.MP No. 55/2020 and Crl.MP No. 56/2020 in SC 01/2020/NIA case. In-Page 19, para 31, the court states: “At the same time, the court has an equal responsibility to see that human rights are not violated in the process of combating terrorism. In all cases, the fight against terrorism must be respectful to the human rights” (emphasis mine) while quoting the SC judgement in PUCL v. Union of India (2004). It further noted in a crucial paragraph 33 of page 20: “essentially granting bail is discretionary. It is well settled that discretion when applied to a court of justice, means sound discretion guided by-laws, rules and principles as laid down by the court and judicial decisions. While exercising discretion, the court has to balance the mitigating and aggravating circumstances…” (Emphasis mine). It states in para 34 on page 21: “In other words, the duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad possibilities. It is a finding tentative in nature, which may not have any bearing on the merits of the case.” (Emphasis mine). Subsequently, in para 61, page 41, the court vehemently states: “Any evaluation diverted from the context will lead to bad conclusions. Right to Protest is a fundamental right. It is well settled that the expression “Government established by Law” has to be distinguished from persons for the time being engaged in carrying out the administration. A protest against the policies and the decisions of the government even if it is for the wrong cause, cannot be termed as sedition or an intentional act to support cession or secession. In Para 62, the court states: “Being a Maoist is not a crime, though the political ideology of Maoists does not synchronize with our constitutional polity”. (Emphasis mine). The Court concluding the case stated that there was, prima facie no deliberate intent to commit a terrorist act.
These inferences could be drawn from the above-quoted lines of the judgement. First, the court has held conclusively that mere possession of materials or professing an ideology deemed to be violent can be construed as intent to commit a terrorist act or an “unlawful act”. Second, at the initial stage of the investigation, the courts have limitations to come at tentative conclusions due to the presence of less satisfactory materials and the absence of contrary documents. Third, dissent towards the ruling dispensation cannot be construed as an act of sedition. Fourth, the watered-down reading of the statute is at the discretion of the courts. As noted earlier, it is the discretion of the courts to interpret the existing statutes and thus grant bail to the accused. In other words, the law leaves room open for misuse and perversion of generally established laws outside the ambit of preventive detention mechanisms. It is therefore essential to look at the fact that UAPA cases registered in 2018 was 1182 in total (Table 1A.5 Page 7 of 23) as reported by the National Crime Records Bureau. However, the conviction rate in 2018 was 27% as opposed to cases remaining in the courts which stand at 93%. By the end of 2018, it is reported that only 317 cases out of 2,008 cases were sent to trial.
The extremely low conviction rates indicate that the law is grossly abused and misused against individuals with limited to no prima facie evidence to prove the accused to be guilty. However, denial of bails to the accused due to multi-layered barriers within UAPA results in longer periods of detention. The wider interests of the State is skewed against the interests of the individual citizens which becomes breeding ground for resentment towards the system and trauma due to being socially outcast as a “terrorist”. It further erodes the civil liberties meant to safeguard the individual citizens against a leviathan State.
What needs to be done? A radical solution would be to repeal all statutes in place which inhibits civil liberties and replace with none. Make sweeping constitutional reforms which firmly enshrine fundamental rights of individual citizens and leave no space for the State to crack down on the dissent. The Majesty of Law must supersede political culture and fragmentation of power. This is being prescribed keeping in mind various socio-political factors which led the newborn Indian Republic to betray liberal principles. But time has definitely come to rectify historical errors beginning with reinstating the same liberal values to empower individual citizens and hold the State power within its philosophically intended bounds.
By Nikhil Jois K. S.
Nikhil Jois K.S. is a politics and philosophy enthusiast. He finds solace in Indian Classical Music, and is an aspiring civil servant.
References:
1. The Unlawful Activities (Prevention) Amendment Act, 2008 (No. 35 of 2008) “introduced in Lok Sabha on 31st of December 2008.”
2. The Unlawful Activities (Prevention) Amendment Act, 2019 (No. 28 of 2019) “introduced in Lok Sabha on 8th of July 2019.”
3. Lalwani, Vijayta., Delhi riots: What evidence does the Delhi Police have against Umar Khalid? (2020, September 14). Scroll.
4. Anti-CAA protests had secessionist motives, Delhi police claims in an affidavit on February violence. (2020, July 15). Scroll.
5. Indian Kanoon (n.d). Section 167 of the Indian Penal Code 1973. Retrieved from https://indiankanoon.org/doc/1815602/
6. Alan Shuaib v. Union of India Crl.MP No.55/2020 & Crl.MP No.56/2020 in SC 01/2020/NIA https://images.assettype.com/barandbench/2020-09/10ce9134-8bc7-44f6-b858-4beefc75c6fc/Alan_Shuaib_v__Union_of_India_through_NIA.pdf
7. Sekhri, Abhinav., (2020, July 16). How the UAPA is perverting the Idea of Justice. Retrieved from https://www.article-14.com/post/how-the-uapa-is-perverting-india-s-justice-system
8. Lok Sabha. (2019). 24th of July. Col. No. 51. Retrieved from https://www.youtube.com/watch?v=im5YczsagWs&t=553s - https://www.mha.gov.in/node/98243
9. Nazia, Erum., (2020/01-05). Amnesty International India. Retrieved from https://amnesty.org.in/news-update/covid-19-pandemic-crackdown-on-dissent-putting-lives-at-immediate-risk-in-india/
10. SLL crimes (crimes Head-wise & states/UT-wise.) (2018). Table 1A.5 Page 7 of 23. National Crime Records Bureau, Ministry of Home Affairs.
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