What is the UAPA and Why Are Arrests Under It So Problematic?

What is the UAPA and is it being used to target academics, activists and lawyers? We explain the draconian law.

Updated22 Apr 2020, 06:41 AM IST
Explainers
6 min read
Snapshot

(In the last few days, Kashmiri journalists like Masrat Zahra, as well as anti-CAA protesters such as Umar Khalid, Meenan Haider, and Safoora Zargar (on the pretext their protests instigated the Delhi riots in February), have been booked by the police under the draconian Unlawful Activities (Prevention) Act 1967 – the UAPA. In light of these developments, The Quint is republishing this explainer from its archives to explain the nature of cases that are meant to be covered under the UAPA, and why it has been criticised as undemocratic.)

On 28 August 2018, police across the country raided the homes of prominent human rights advocates and activists, saying these people were responsible for instigating the violence in Bhima-Koregaon in January 2018.

At least five of them – advocate Sudha Bharadwaj, lawyer and author Arun Ferreira, revolutionary poet Varavara Rao, as well as activists Gautam Navlakha and Vernon Gonsalves – were taken into custody.

According to the search panchnamas prepared by the Pune Police (who orchestrated the police action), these activists are all being investigated for offences under the Unlawful Activities (Prevention) Act 1967 (UAPA), a draconian anti-terror legislation that was used to arrest five prominent Dalit rights activists in June this year for their alleged role in the Bhima-Koregaon violence, and links to Naxal groups.

But what exactly is the UAPA? Why are human rights activists being charged under it? And what is the significance of using this law against them?

What is the UAPA and Why Are Arrests Under It So Problematic?

  1. 1. What is the Unlawful Activities (Prevention) Act?

    The UAPA was introduced in 1967 as a legislation to set out reasonable restrictions on the fundamental freedoms under Article 19(1) of the the Constitution, such as freedom of speech, right to assemble peacefully and right to form associations. These restrictions were meant to be used to safeguard India’s integrity and sovereignty.

    Over the years, terror-specific legislations like Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA) were repealed after running into legal trouble, and the UAPA became the primary anti-terror legislation in India. Since 2004, there have been a number of amendments to the UAPA to make it stricter when it comes to the rights of accused, and include more terror-related offences.

    In line with its stated objectives, the UAPA punishes the commission, funding and support of “unlawful activities” and “terrorist acts”.

    What is the UAPA and Why Are Arrests Under It So Problematic?

    “Unlawful activities” is a term referring to any action that supports or is intended to support secession of any part of India, or “disclaims, questions, disrupts or is intended to disrupt” the sovereignty and territorial integrity of India.

    “Terrorist acts”, defined in Section 15 of the UAPA, refer to any violent acts meant to threaten the security of India, or to strike terror in people in India or abroad.

    However, its most controversial aspect has come to be the declaration of certain organisations as “unlawful associations”, “terrorist gangs” or “terrorist organisations”. Once any organisation has been declared by the government to fall within one of these categories, even being a member of it becomes a criminal offence.

    Expand
  2. 2. Vague Concepts That Can be Used to Arrest Activists and Lawyers

    The provisions of the UAPA have an extremely wide ambit, which makes it possible to use them against not just criminals and terrorists, but even authors, academics, lawyers for alleged terrorists, and human rights activists.

    As lawyer and legal scholar Gautam Bhatia has previously pointed out in The Hindu, the definition of unlawful activities includes terms which are “staggeringly vague and broad”. For instance, under Section 2(o) of the UAPA, questioning the territorial integrity of India is an unlawful activity.

    But why should mere questioning be a crime? And what exactly will be considered as questioning? Similarly, it is also an unlawful activity to cause “disaffection against India”. With no definition of disaffection in the UAPA itself, this becomes a provision that is ripe for misuse. Even if these offences were not arbitrary and ambiguous, punishing such things would “come close to establishing a regime of thought-crimes” as Bhatia points out.

    The punishment of membership of unlawful associations, terrorist gangs and terrorist organisations is similarly problematic. Terrorist organisations are simply those designated as such by the state, which get included in a list in Schedule 1 of the UAPA, and if you’re found to be a member of one of these, you could be imprisoned for life.

    However, there is no definition of membership in the UAPA, which has allowed investigating authorities to use even the flimsiest of excuses to book people as members of unlawful associations or terrorist organisations – from possession of books and pamphlets, to expressing sympathy for members of the organisation or the aims of the organisation. For instance, when investigating links to Naxal or Maoist groups, articles about revolutionary movements, even copies of the Communist Manifesto, have been used as “evidence”.

    In 2011, the Supreme Court was hearing a challenge to the conviction of a person for being a member of a banned organisation under the old TADA (which was the same as membership of banned organisations under the UAPA). In this Arup Bhuyan case, the apex court passed an order which clarified that

    “mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”

    However, even after this ruling, this has not meant that those charged with membership on flimsy grounds have been able to get justice from the courts. In 2013 and 2014, the Bombay High Court granted bail to activists from the Kabir Kala Manch who had been arrested under the UAPA, citing the Arup Bhuyan judgment. But in 2015, the same High Court refused bail to other activists from the group – though they were finally granted bail by the Supreme Court, they had to remain in jail till January 2017.

    Expand
  3. 3. Draconian Procedural Aspects of the UAPA

    The UAPA has become a weapon of choice to use against dissidents (by previous governments as well – see the arrest of Binayak Sen during the UPA’s tenure) not just because of its ambiguous substantive provisions, but also its draconian procedural provisions, which allow the state to keep people in custody for extended periods of time without bail.

    What is the UAPA and Why Are Arrests Under It So Problematic?

    Section 43D(2) of the UAPA doubles the amount of time one can be remanded to police custody (to 30 days), and allows 90 days of judicial custody even for offences which would otherwise only allow up to 60 days.

    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. This is because Section 43D(5) states that a court cannot release someone on bail if the case against them is prima facie true.

    The bail provision is particularly problematic since it basically allows for nearly indefinite imprisonment even without conviction of the accused, without even any concrete proof – the prosecution/police/state version just needs to indicate a criminal offence on the face of it.

    Expand
  4. 4. Indefinite Imprisonment Without Trial

    Even if the person is eventually acquitted of the charges, the delays in conducting judicial proceedings mean the case may only get heard several years after their arrest – failure to get bail means they have to spend the entire time in jail. For instance, Sudhir Dhawale, one of the first five activists arrested back in June, had previously been kept in jail for 40 months before he was acquitted the last time.

    To ensure that they can keep the accused in custody for as long as possible, the authorities will often throw the book at the accused. In addition to IPC offences, they often set out a laundry list of UAPA charges against the accused in the hopes that something will stick.

    Take for example the list nine UAPA offences under which Surendra Gadling, Sudhir Dhawale et al were arrested in June, and which the more recent detenues are also being investigated:

    1. Section 13: committing, abetting or advocating the commission of an ‘unlawful activity’ – activity relating to secession from India, disruption of our sovereignty or integrity, or causing disaffection against India.
    2. Section 16: committing a ‘terrorist act’
    3. Section 17: raising funds for a ‘terrorist act’
    4. Section 18: conspiracy to commit a ‘terrorist act’
    5. Section 18B: recruiting someone to commit a ‘terrorist act’
    6. Section 20: being a member of a ‘terrorist gang’ or ‘terrorist organisation’
    7. Section 38: being associated with a terrorist organisation - in this case, the Communist Party of India (Maoist)
    8. Section 39: inviting support or giving support to a terrorist organisation
    9. Section 40: raising funds for a terrorist organisation.

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    Expand

What is the Unlawful Activities (Prevention) Act?

The UAPA was introduced in 1967 as a legislation to set out reasonable restrictions on the fundamental freedoms under Article 19(1) of the the Constitution, such as freedom of speech, right to assemble peacefully and right to form associations. These restrictions were meant to be used to safeguard India’s integrity and sovereignty.

Over the years, terror-specific legislations like Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA) were repealed after running into legal trouble, and the UAPA became the primary anti-terror legislation in India. Since 2004, there have been a number of amendments to the UAPA to make it stricter when it comes to the rights of accused, and include more terror-related offences.

In line with its stated objectives, the UAPA punishes the commission, funding and support of “unlawful activities” and “terrorist acts”.

What is the UAPA and Why Are Arrests Under It So Problematic?

“Unlawful activities” is a term referring to any action that supports or is intended to support secession of any part of India, or “disclaims, questions, disrupts or is intended to disrupt” the sovereignty and territorial integrity of India.

“Terrorist acts”, defined in Section 15 of the UAPA, refer to any violent acts meant to threaten the security of India, or to strike terror in people in India or abroad.

However, its most controversial aspect has come to be the declaration of certain organisations as “unlawful associations”, “terrorist gangs” or “terrorist organisations”. Once any organisation has been declared by the government to fall within one of these categories, even being a member of it becomes a criminal offence.

Vague Concepts That Can be Used to Arrest Activists and Lawyers

The provisions of the UAPA have an extremely wide ambit, which makes it possible to use them against not just criminals and terrorists, but even authors, academics, lawyers for alleged terrorists, and human rights activists.

As lawyer and legal scholar Gautam Bhatia has previously pointed out in The Hindu, the definition of unlawful activities includes terms which are “staggeringly vague and broad”. For instance, under Section 2(o) of the UAPA, questioning the territorial integrity of India is an unlawful activity.

But why should mere questioning be a crime? And what exactly will be considered as questioning? Similarly, it is also an unlawful activity to cause “disaffection against India”. With no definition of disaffection in the UAPA itself, this becomes a provision that is ripe for misuse. Even if these offences were not arbitrary and ambiguous, punishing such things would “come close to establishing a regime of thought-crimes” as Bhatia points out.

The punishment of membership of unlawful associations, terrorist gangs and terrorist organisations is similarly problematic. Terrorist organisations are simply those designated as such by the state, which get included in a list in Schedule 1 of the UAPA, and if you’re found to be a member of one of these, you could be imprisoned for life.

However, there is no definition of membership in the UAPA, which has allowed investigating authorities to use even the flimsiest of excuses to book people as members of unlawful associations or terrorist organisations – from possession of books and pamphlets, to expressing sympathy for members of the organisation or the aims of the organisation. For instance, when investigating links to Naxal or Maoist groups, articles about revolutionary movements, even copies of the Communist Manifesto, have been used as “evidence”.

In 2011, the Supreme Court was hearing a challenge to the conviction of a person for being a member of a banned organisation under the old TADA (which was the same as membership of banned organisations under the UAPA). In this Arup Bhuyan case, the apex court passed an order which clarified that

“mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”

However, even after this ruling, this has not meant that those charged with membership on flimsy grounds have been able to get justice from the courts. In 2013 and 2014, the Bombay High Court granted bail to activists from the Kabir Kala Manch who had been arrested under the UAPA, citing the Arup Bhuyan judgment. But in 2015, the same High Court refused bail to other activists from the group – though they were finally granted bail by the Supreme Court, they had to remain in jail till January 2017.

Draconian Procedural Aspects of the UAPA

The UAPA has become a weapon of choice to use against dissidents (by previous governments as well – see the arrest of Binayak Sen during the UPA’s tenure) not just because of its ambiguous substantive provisions, but also its draconian procedural provisions, which allow the state to keep people in custody for extended periods of time without bail.

What is the UAPA and Why Are Arrests Under It So Problematic?

Section 43D(2) of the UAPA doubles the amount of time one can be remanded to police custody (to 30 days), and allows 90 days of judicial custody even for offences which would otherwise only allow up to 60 days.

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. This is because Section 43D(5) states that a court cannot release someone on bail if the case against them is prima facie true.

The bail provision is particularly problematic since it basically allows for nearly indefinite imprisonment even without conviction of the accused, without even any concrete proof – the prosecution/police/state version just needs to indicate a criminal offence on the face of it.

Indefinite Imprisonment Without Trial

Even if the person is eventually acquitted of the charges, the delays in conducting judicial proceedings mean the case may only get heard several years after their arrest – failure to get bail means they have to spend the entire time in jail. For instance, Sudhir Dhawale, one of the first five activists arrested back in June, had previously been kept in jail for 40 months before he was acquitted the last time.

To ensure that they can keep the accused in custody for as long as possible, the authorities will often throw the book at the accused. In addition to IPC offences, they often set out a laundry list of UAPA charges against the accused in the hopes that something will stick.

Take for example the list nine UAPA offences under which Surendra Gadling, Sudhir Dhawale et al were arrested in June, and which the more recent detenues are also being investigated:

  1. Section 13: committing, abetting or advocating the commission of an ‘unlawful activity’ – activity relating to secession from India, disruption of our sovereignty or integrity, or causing disaffection against India.
  2. Section 16: committing a ‘terrorist act’
  3. Section 17: raising funds for a ‘terrorist act’
  4. Section 18: conspiracy to commit a ‘terrorist act’
  5. Section 18B: recruiting someone to commit a ‘terrorist act’
  6. Section 20: being a member of a ‘terrorist gang’ or ‘terrorist organisation’
  7. Section 38: being associated with a terrorist organisation - in this case, the Communist Party of India (Maoist)
  8. Section 39: inviting support or giving support to a terrorist organisation
  9. Section 40: raising funds for a terrorist organisation.

Liked this story? We'll send you more. Subscribe to The Quint's newsletter and get selected stories delivered to your inbox every day. Click to get started.

The Quint is available on Telegram & WhatsApp too, click to join.

Published: 28 Aug 2018, 05:03 PM IST
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