by Danish Riyaz

The system of governance has evolved over centuries as per the given requirements. The world has witnessed different forms of governance structures, from monarchy to anarchy, dictatorship to totalitarian, progressive democracy to regressive democracy. But all these systems had a common flaw. The people governed were subjected to abuse and discrimination on the basis of race, ethnicity, religion, caste or creed. It continued till the dawn of the twentieth century.

Home Minister Amit Shah at Parliament on June 28, 2019

However, after World War 2, human rights became the centre of the debate. The concept of freedom and civil liberties was introduced into the political arena of the world. The leaders across the continents came together and recognized the concept of freedom of individuals and civil liberties. Later it came to be known as a universal charter or UN Human Rights Charter.

During the same time when the world was discussing civil liberties and individual rights, India achieved independence. The constitution was drafted and the emerging concepts were incorporated. UNHR charter found its way in the constitution. The people who had seen curbs over the centuries had a taste of freedom.

The committee constituted to draft constitution keeping in mind the diversity of India defined fundamental rights in detail on the basis of religion, culture, education and ethnicity. Apart from other articles enshrined in part 3, the main source from which the citizens of India derives the essence of fundamental rights are Art 19 and Art 21.

Article 19

(1) All citizens shall have the right— (a) to freedom of speech and expression;

(b) to assemble peaceably and without arms; (c) to form associations or unions;

(d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India (g) to practise any profession, or to carry on any occupation, trade or business.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of [the sovereignty and integrity of India the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of [the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law

Art 21

No person shall be deprived of his life or personal liberty except according to the procedure established by law.

These two articles have been the guardian of fundamental rights and have gone through amendments and judicial interpretations ever since. The framers of the constitution while drafting it had put no latches on the same. They gave the fundamental rights the absolute position in the constitution. The government did not like that and within 15 months of the constitution being in force introduced The Constitution (First Amendment) Act, 195, by virtue of this amendment sub-sec 2 was inserted in Art 19 giving the government power to curb, curtail or suspend all or some of these rights as per their whims and wishes, thus laying the foundation of laws like Unlawful Activities Prevention Act 1967 (UAPA), Terrorist and Disruptive Activities (Prevention ) Act 1985 (TADA), Prevention of Terrorism act (2002), National Security Act 1980, (NSA), Jammu And Kashmir Public Safety Act 1978 (PSA).

Police arrests a lady protestor near Red Fort, Delhi. Image by Nasir Kachroo
Police arrests a lady protestor near Red Fort, Delhi. Image by Nasir Kachroo (File Photo)

The government of India with this amendment started the gradual process of putting restrictions on fundamental rights and liberties. The concept of reasonable restriction evolved with this amendment. What the government did with Article 19 went largely unnoticed till the government brought the Constitution (Sixteenth Amendment) Act, 1963 which further strengthened government control over free speech and freedom of expression by further amending Article 19, imposed more restrictions. The government was trying to take full control over the constitution and by doing so they turned progressive democracy into regressive democracy and such regressive steps to amend constitution illegally set the government on the collision path with the judiciary.

The small brawl which started with the first constitutional amendment and subsequent events thereafter would blow into an all-out war with Supreme Court when Indira Gandhi would become Prime Minister in 1966 which ended in disaster for the Iron Lady because Supreme Court did not allow the total encroachment of the Constitution. These two constitutional amendments would provide a source of power to curb free speech and later cleared the deck for the government to bring together some harsh pieces of legislations

The UAPA Origins

The UAPA 1967 finds its origin in the India China war of 1962. As the war put the government on a weaker side, the trouble started in Tamil Nadu with Dravida Munnetra Kazhagam (DMK) party gaining momentum in the 1960s, became the voice and face of the Tamil nationalism in that era. By this time Congress had begun to show weakness and to take the advantage of the same DMK being one of the largest parties in South India, began demonstrations against the government policies, played high on North-South divide defeated the Congress and formed the government in Tamil Nadu in early 1967. By this time Indira Gandhi had become the Prime Minister of India.

To muzzle down the opposition the government passed the Unlawful Activities (Prevention) Act 1967 in parliament on December 30, 1967.

Section of historians believe that this act was promulgated to silence the dissent against the government while others believe that DMK actually threatened secession from the Union of India on communist lines, so to keep such elements in check, a strict law was needed, till then there was no such law which could provide an immediate remedy to such activities and organizations.

Whatever the reasons, the law was enacted and is in operation till now. To further strengthen this act six amendments were made to date

The Act

After the DMK controversy, the government felt the need to put restrictions on this type of political dissent and rein in such elements. An idea to have legislation led to the formation of UAPA. The main objective was to deal with associations threatening the sovereignty and unity of India. This act initially contained 14 sections under 3 chapters dealing only with organizations which government considered unlawful under this act. The part on terrorism was later added in 2004.

The gist of the act contemplates on the associations, organizations, unions any group of people who propagates the ideology of secession from the Union of India. The unlawful activity and unlawful association are defined in Section 2 sub-sec o and Sec 2 sub-sec p respectively as follows

2(o) “unlawful activity”, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written or by signs or by visible representation or otherwise),—

(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against India;

(p) “unlawful association” means any association,—

(i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or

(ii) which has for its object any activity which is punishable under section 153A (45 of 1860) or section 153B of the Indian Penal Code, or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity:

Provided that nothing contained in sub-clause (ii) shall apply to the State of Jammu and Kashmir;

Going by the analogy of the sections, it is clear that the wording is ambiguous. The act further fails to describe the extent and nature of what words or signs or representation would amount to unlawful activity.

The vagueness of the terminology used has created a barrier for a judicial review which has resulted in the abuse of same by criminalizing the thinking of a person or an organization. What makes this act a draconian is the fact that to attract this section no unlawful act needs to be done, it criminalizes the thinking of a person or an association in general, for example, on social media a person re-tweets or shares any news item or any such post which is adverse to the policies of the government or for example mere possession of any such literature which the government chooses to be incriminating can attract the provisions of this act. The words “cession”, “secession”, “disrupts or is intended to disrupt the sovereignty and territorial integrity of India”,” which causes or is intended to cause disaffection against India“ again used in the definition are very difficult to interpret. The successive governments have constantly used these loopholes to silence the dissent towards the government policies, thus erasing the fine line between threat to national security and threat to the government.

The Misuse

The recent crackdown on Jamia Millia Students is a classic example of misuse of the provisions of UAPA. The controversy started with a piece of legislation passed in the Parliament regarding CAA. The right to criticize the policies of government derives its power from the constitution itself and is right of every citizen. The government to silence the nation-wide protests against the concerned act invoked the provisions of UAPA. It was wrong. There was no attempt made by this protest to threaten the integrity or sovereignty of the Union of India, these protests could have been treated with mild sections provided within Indian Penal Code which deal with rioting and protests. Not only this, in 2018 Bhima Koregaon violence, the social activists Rona Wilson Varavara Rao, Arun Ferreira, Sudha Bharadwaj and Gautam Navlakha were booked under UAPA for having Maoist link, again the evidence was not to support the case.

Four detained for protesting against foreign envoys visit in February 2020. KL Image: Bilal Bahadur

Similarly, the misuse of this act has happened in J&K as well. This law is more draconian in nature than PSA because PSA can be quashed by the court. But for UAPA one cannot go straight to the Court, because the procedure of Sessions trial is provided and sometimes what happens is when Court quashes PSA, subsequently, the person is charged under UAPA, so this is the cat and mouse story that goes on in Kashmir.

In the recent case of Jamat e Islami, on the basis of previous FIRs registered against the few former members which were no longer the party of organization, the whole organization was banned under UAPA or in the case of Students Islamic Movement of India (SIMI), a few members were found involved in anti-India activities without the knowledge of the organization and had acted individually still the whole organization was banned under section 3 and 4 of the act. This brings us to another drawback that if any member or members of any organization, association or NGO group do indulge in unlawful activities in an individual capacity, the whole organization will be considered an unlawful association and shall be banned.

By invoking UAPA, the government has set a dangerous trend of using harsh laws like NSA or UAPA in normal law and order problems, mostly against minority and Muslim activists. If this action on the party of government is allowed in a democracy like India, tomorrow it might slap UAPA on the people protesting for drinking water, better education, proper health care or jobs.

The state more often in the fit of rage forgets to weigh in on the proposition of the problem they are dealing with, arbitrarily invoking acts like UAPA. Another drawback is being special legislation, it overrides the general provisions of criminal trial prescribed in CRPC, for example, the provision of remand. The general rule as per the Criminal Procedure Code sec 167 is that it makes it mandatory for a Magistrate not to extend remand beyond 15 days, which can be extended to 90 days in offences relating to death or life imprisonment and sixty days in other offences.

Under section 43(2)(a) of UAPA, the initial remand is extended to 30 days, which can further be extended to 180 days on the request of the prosecution. This provision strips the detainee of his basic right of bail as a prisoner, it is not mandatory to produce the accused before the court every time the remand is to be extended which otherwise is again the mandatory provision of criminal jurisprudence also the scope of granting bail in offences under this act are minimal as the accused is presumed to be terrorist because of which act provides for stringent measures thus denying another fundamental right of bail to the accused. With minimal judicial intervention, the concerns that accused being subjected to torture have been raised in past as well. Another deviation from the concept of natural justice can be seen in section 3 and section 4. Section 3 gives power to the government for declaring any organization as an unlawful. Under sec 4 the government has to refer its claim to a tribunal which is again set up by the government itself to look whether there is sufficient cause to declare the organizations unlawful and the evidence provided by the government can be kept secret for national security thus contravening the scope of the doctrine of Nemo Judex in Causa Sua (no one can be a judge in his own cause) the findings of such tribunals often lack credibility.

The provisions related to terrorism were not part of the act until 2004 when the UPA government repealed the controversial law of POTA and TADA. Those acts were repealed but the sections of these acts related to terrorism were added to UAPA. The recently made amendment by virtue of which an individual can be categorized as a terrorist is in line with the commitments made by India at the United Nations. Few other examples are the USA, Pakistan, and Israel.

The need for this provision was felt after the lone wolf terror attacks by both Islamic fundamentalists and Islamophobic ideologues became a common occurrence around the world.

The other drawback of this law is the burden of proof. The foundation stone of Criminal Jurisprudence is based on the maxim Ei incumbit probatio qui dicit, non qui negat – “Proof lies on him who asserts, not on him who denies and the person is presumed to be innocent until proven guilty, the burden of proof is on the party who accuses the other party of the crime, the onus remains on the person complaining to prove his allegation, it is completely reverse when it comes to the postulates of the act. When the government declares an organization or as it is now an individual a terrorist, he is considered to be a terrorist in the eyes of law until he can prove his innocence. This is the hindrance created by the law in a way of getting bail in cases pertaining to UAPA.

UAPA Effectiveness

From the inception, this act has remained controversial in the eyes of Human Rights activists, section of media, human rights lawyers, and international rights organizations. In the era when world bodies are taking much concern in stabilizing human rights, such laws which give teeth to totalitarianism are a bit of concern in a vibrant democracy like India.

The criticism of these draconian laws is only because in practicality they have failed to nourish the very purpose for which they were enacted. The statistics from various reliable sources paint a decimal picture of these arbitrary laws. If the record of the convicts under TADA is perused the conviction rate has been shocking at 1%.

Danish Riyaz

Similarly, the date available under POTA is not encouraging either. As per an article published in the Outlook dated 04-08-2019 since its inception in 200, 4349 cases were registered under POTA, with 1031 individuals charged with terrorism and out of which the government only managed to secure the conviction of 13 persons only. Again as per the article published in Business Standard dated September 14 2018, as many as 22 of 33 cases (67 per cent) under the Unlawful Activities Prevention Act, 1967 (UAPA) ended in acquittal or discharge in 2016, compared to 18 per cent of cases that ended similarly under special and local laws (SLL), a category of laws applicable nationwide and which encompasses the UAPA, according to National Crime Records Bureau (NCRB) data.

In 2015, 65 of 76 cases in which trials were completed under UAPA ended in acquittal or discharge. On average, 75 per cent cases have ended in acquittal/discharge over three years ending 2016, as per records of National Crime Record Bureau. Going by the assessment of the statistics, it is clear that the UAPA is also being misused on the same lines as TADA and POTA.

Supreme Court has always been at guard against any law, statute or legislation which infringes the fundamental rights of the citizens but when it comes to reasonable restriction, the Apex court has taken an ambiguous stance. It did lay down the rules for checking the arbitrariness of the laws enacted but has left again it to the executive and legislation to check the arbitrariness.

Tail Piece

It must be remembered that the Fundamental Rights are constitutional guarantees given to the people of India and are not merely paper hopes or fleeting promises and so long as they find a place in the Constitution, they should not be allowed to be emasculated in their application by narrow and construed judicial interpretation “…. BHAGWATI , J (Ajaz Hasia v Khalid Mujib AIR 1981 SC 487 at 493 : (1981) 1 SCC 722

(Author is a practising lawyer in High Court and district court of Srinagar. Ideas expressed are personal. He tweets @riaz44)


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