On the morning of Tuesday, 3 October, several journalists and contributors associated with news outlet NewsClick woke up to impromptu raids and seizure of property by the Delhi Police.
Among those who were raided included satirist Sanjay Rajoura, who is part of a collective called 'Aisi Taisi Democracy', which incidentally talks about what ails the largest democracy in the world.
After a series of raids at over 40 locations, the Delhi Police's Special Cell arrested NewsClick's editor-in-chief Prabir Purkayastha and HR head Amit Chakravarty under Sections 13, 16, 17, 18, and 22 of the Unlawful Activities (Prevention) Act (UAPA) and 153(b) and 120(b) of the Indian Penal Code (IPC).
This is not the first time that journalists have been charged under the anti-terrorist laws of the UAPA. In 2020, Kerala journalist Siddique Kappan was arrested under similar charges and remained incarcerated for almost 300 days.
Other UAPA cases include that of Aasif Sultan, who has been in jail since 2018, and Irfan Meraj, who was recently arrested by the National Investigation Agency (NIA) on charges of terrorist links. The editors of Alt News, The Wire, and Dainik Bhaskar were also arrested on similar charges.
At the heart of these cases and arrests is an attempt to instill fear among journalists. And these acts have gotten more ominous in recent years, as they increasingly entail the confiscation of electronic items.
The Rigorous Evolution of UAPA
Since 2014, there has been a rampant misuse of the UAPA by the state against activists and dissenters. In 2018, the National Investigation Agency (NIA) and the Pune Police arrested 16 lawyers, professors, and activists under the umbrella of anti-terrorism laws and lodged them in jails in the Bhima Koregaon case.
As of 2023, 14 of the activists are out on bail, and in the bail orders, the Supreme Court has questioned the arrests and pieces of evidence presented to the court. Father Stan Swamy, one of those who were arrested, died in prison fighting for bail at the age of 83.
The unusual nature of the anti-terror legislation has remained a source of heated political discussion since the introduction of the Terrorist and Disruptive Activities (Prevention) Act (TADA) in 1985 and the Prevention of Terrorism Act (POTA) in 2002.
The TADA and POTA were notorious for their extended pretrial detention, abuse in jail, bogus charges, and coerced confessions. Members of the minority population, in particular, paid a high price.
The government resurrected the UAPA to make unlawful any organisation that questioned India's sovereignty, and converted it into an anti-terror statute. Since then, the statute has been significantly revised three times – in 2008, 2013, and 2019. Each change has made it more rigorous.
The legislation has not only grown beyond its initial intent, but is also proving to be more draconian than the TADA and POTA.
High Pendency Rate, but Strict Bail Provisions
Scepticism surrounding the UAPA arose after the National Crime Records Bureau (NCRB) report in 2020. Since there has been an upsurge in UAPA cases, those offences were registered as a distinct category in the 2014 report.
Over the last five years, there has been a 72 percent increase in instances of the UAPA. Only 4.5 percent of the 6,900 cases taken to trial in the last seven years reached the point of conclusion. Between 2014 and 2020, 95.4% of the cases were still pending at the end of the year.
The UAPA flagrantly breaches the idea of natural justice as well as the fundamental protections guaranteed to the people by the Constitution.
The legislation provides authorities and law enforcement agencies excessive authority in Sections 43A and 43B, which enable the police to search, seize, and arrest anybody without a warrant, and Section 43D, which allows the police to detain anyone for 30 days in police custody and 180 days in court detention without a charge sheet.
Despite the absurdly high pendency rate, the most severe provision in the UAPA is the one controlling bail. If a prima facie case can be built against an accused, he cannot be released on bail under Section 43D(5). Even anticipatory bail under Section 438 of the CrPC is rendered ineffective by the UAPA.
According to the bail provisions of the UAPA, simply the establishment of a 'prima facie' case based on a police search and seizure is enough to keep someone detained.
In NIA vs. Zahoor Ahmad Shah Watali (2019), the Supreme Court made it practically hard to get bail in a UAPA case until the trial concluded. According to Watali's decision, when evaluating bail requests under the UAPA, courts must presume that every charge in the FIR is factual.
Furthermore, bail is now only granted if the accused provides evidence that contradicts the prosecution's case. In these circumstances, an accused is presumed guilty unless proven innocent.
Bail hearings under the UAPA have degenerated into a farce. With such stringent evidence standards, it is impossible for an accused to obtain bail, and it is a handy tool for the government to keep someone imprisoned indefinitely. Those who have been arrested are living in a nightmare. In the UAPA, the procedure becomes the accused's punishment.
Silencing Critics, Dissenters
The state is using these stringent laws to silence critics and dissenters, which bears an eerie resemblance to the Emergency era. Incidentally, Prabir Purkayastha, the editor-in-chief of NewsClick, was arrested during the Emergency for his dissent against Indira Gandhi.
The court must decide whether the scope and implications of the UAPA are disproportionate to its stated purposes. Terms like "terrorist act," "unlawful activity," "advocacy," "conspiracy," "likely to threaten," and "likely to strike terror" have been phrased broadly and appear to confer arbitrary powers on authorities.
There is a lack of prosecution standards as well. Instead, the statute permits reliance on police cases. Even if terminology like "terrorist act" is subjective and difficult to define, the right limits for judicial judgement can be established. The objective is to create legislation that successfully combats terrorism while also adhering to the requirements of our Constitution.
Striking a blow at press freedom has a chilling effect on the democratic structure of the nation; in the words of Sanjay Rajoura, it is surely a state of "Aisi Taisi Democracy."
(Kumar Kartikeya is a legal researcher. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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