UAPA and the Subversion of Civil Liberties in India

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-tri