Guest Opinion
INTRODUCTION:
This article discusses the Unlawful Activities Prevention Act, and Section 124 A, of the Indian Penal Code that criminalizes Sedition in India. Both these acts have been subject to criticism because of their apparent abuse by the government and private individuals to curb dissent against the ruling right-wing Bharatiya Janata Party in India.
Section 124 A has been invoked by private citizens against a social media post, pictures, or something said in a public forum, on grounds that it hurts the religious sentiments of a particular community in India.
Similarly, the Unlawful Activities Prevention Act (hereafter called the UAPA) has been allegedly abused by the central government to declare individuals as terrorists, make arrests, and hold critiques of the government in Custody.
In recent news, the UAPA and Sedition laws were used against journalists and politicians who were protesting against the UP police following the abuse of power in Hathras case.
Though most of the cases filed under the UAPA or Section 124 lead to an acquittal, long pretrial detention, and an expensive and long drawn out trial have together induced people towards Self-Censorship.
THE UAPA: THE UNLAWFUL ACTIVITIES PREVENTION ACT 2019.
The UAPA is India’s Anti-terror law. The Central government introduced new amendments to the UAPA in the year 2019, which led to a lot of flak from the opposition parties, students, and left-wing activists.
Prior to the amendment, the act gave unfettered powers to the Central government to declare any association, believed by the central government believed to be involved in unlawful activities, as a terrorist organization. The 2019 amendment under Section 35 extended this right to indict associations as well as Individuals who might not be associated with any terror groups as terrorists if the government has reasons to believe so.
The central government now has the power to INDICT an individual as a terrorist, as well as the power to ACQUIT the same individual.
Under SECTION 36 of the UAPA, the individual who is labeled as a terrorist can make an application to a REVIEW COMMITTEE (established under SECTION 37) to review such an indictment.
However, This Review Committee shall also be constituted by the Central Government.
The Central government, and the central government-run National Investigation Agency, have control over the whole trial process from Start to End. The likelihood of abuse of power increases substantially in such circumstances.
To add to this, the burden of proof lies on the Accused and SECTION 43 E of the ACT presumes Guilt in certain cases.
A person arrested under the UAPA, under SECTION 43D, read with Section 167 of the Criminal code, states that such a person could be held under preventive detention for up to 180 days even before a Charge sheet is filed against him.
UMAR KHALID was one of the key protestors against the Controversial CITIZENSHIP AMENDMENT ACT ( CAA). He was arrested under the UAPA for allegedly plotting the violent protests that went down in Delhi in February of 2020.
The lawyer appearing for Umar Khalid contended that PRINCIPLES OF NATURAL JUSTICE were violated in his case as he never presented the application-cum-report.
Furthermore, as per the State report, he was arrested based on the word of a government informant who claimed to have information that Umar Khalid allegedly had a role to play in plotting the mass protests. Umar Khalid is therefore alleged to have delivered hate speeches in the national capital. This arrest was based on the word of a government informant, and not on a private citizen's testimony. Khalid was arrested on 21.02.2020 and then his detention in custody was extended from time-to-time by the courts upon the Public prosecutor's request.
A similar case, also related to the ANTI CAA protests, is FAIZAN KHAN v. STATE OF NEW DELHI
Faizan Khan's advocate Salman Khurshid submitted that the investigating agency had misapplied and wrongly invoked the UAPA. In the case mentioned above, the sole allegation against FAIZAN was that he issued a sim card under fictitious documents. The sim card in question was issued in December and the riots concerning which Faizan was arrested under the draconian UAPA went down in February.
Moreover, there was nothing other than this to connect FAIZAN to the protests. He was not in the WhatsApp group, and he did not even participate in the said protests.
His only fault was that he sold a sim card under fictitious documents for a mere two hundred Indian rupees for which they charged him under UAPA along with various other sections of the Indian Penal code.
In a writ petition challenging the validity of the UAPA Sajal Awasthi states:
“Right to reputation is an intrinsic part of the fundamental right to life with dignity under Article 21 of the Constitution of India. Terming/tagging an individual as “terrorist” even before the commencement of trial or any application of judicial mind over it, does not amount to following of 'procedure established by law' and is, thus, violative of right to reputation of such an individual who is being categorized as terrorist and being added in Schedule 4 of the UAPA Act, 1967.”
The State report against Umar Khalid mentions that Umar Khalid gave:
"Provocation" speeches at various places and appealed to minority gathering to block roads and other public places during the visit of Mr. Donald Trump, Hon'ble President of USA on February 24/25, 2020, so that propaganda may be flashed at the international platform that the Minorities in India are being tortured."
The right to freedom of expression and by extension the right to protest at a national as well as an international stage against controversial laws have been given under both UDHR and PART III Fundamental rights of the Indian constitution under Article 19 of the respective documents.
One of the most controversial arrests made under the UAPA in recent times was the arrest of Safoora Zargar, a student of Jamia Millia Islamia amidst a nationwide lockdown during the COVID Pandemic. Safoora was in custody from 10th April 2020 until 24th June 2020 under the several sections for her involvement in the ANTI CAA PROTESTS. Safoora Zargar was pregnant when taken into custody.
Safoora Zargar was released on bail on 13th April but immediately rearrested on other charges.
As per the NATIONAL PRISON MANUAL 2016, a pregnant woman when being sent to prison must have the essential facilities for PRENATAL as well as postnatal care of both the prisoner and her child. Safoora Zargar was sent to Tihar Jail, one of the most crowded prisons in INDIA.
SECTION 124A OF THE INDIAN PENAL CODE
Sedition mentioned under section 124 A is a colonial-era law that was used to curb dissent against the British government. Sedition in India is a non-bailable offense, and punishment can vary from 3 years to life imprisonment.
In recent times, this law has been often abused by Private Individuals based on a statement, Facebook post, or a photograph posted by an individual.
Most people charged under this section have no prior Criminal record and are often acquitted by the court. However, similar to the UAPA, persons accused under Section 124a are subject to judicial or police custody.
Section 124A has often been used by the right-wing supporters against those who speak or write against the BJP government or the Hindutva Ideology.
The law commission report of 2018 suggested the scrapping of this law and The United Kingdom itself scrapped the provision on Sedition in 2009.
IN NAZIR HUSSAIN @ BITTU VS STATE OF U.P, the accused spent five months in prison for posting a flag of Pakistan on his Facebook page.
In JASBIR @ JASVIR SINGH VS STATE OF PUNJAB, Jasbir was arrested because he went live on Facebook and criticized the Modi government and the government of Punjab, on their handling of the COVID-19 pandemic. The court acquitted the defendant after he spent six months and fourteen days in prison.
It was alleged that Jasbir's utterances were against the integrity of the nation and that his statements were aimed at causing communal disaffection. Examination of his utterances by the court proved otherwise, and Jasbir was released after much suffering
CONCLUSION
It is evident that
a. The laws have been misused in the past, and continue to be misused.
b. The central government has infinite powers under UAPA to curtail Freedom Of Speech, and the Right To Dignity as guaranteed by Article 21 of the Constitution.
c. Private individuals under sedition laws hold the power to prosecute anyone who speaks against their own agenda.
-OMCT and ICJ welcome the Report of the Special Rapporteur on the rights to freedom of peaceful assembly and association
The 2020 report is yet to be published by the National crimes Bureau and the number is most likely to increase, taking into account that CAA was passed in December 2019 and most of the people arrested under the UAPA and sedition laws are protestors.
The advocates of UAPA are of the view that an iron-clad law on sedition is necessary to curb terror. However, there is an established precedent for abuse of these laws in India and world-over. These laws should either be scrapped, or a mechanism of checks and balances be put in place.
BY-Tushar Nair (Guest Writer)
Tushar is a second-year law understudy at Vivekananda Institute of Professional Studies
His blogs spin around Human Rights infringements in India and around the globe. He holds a special interest in the Right to quality education for all.
Link to his blog: https://theindigoreview.wordpress.com/author/nairtushar9/
Instagram: @indigoreview