What makes UAPA So Stringent?

During a book launch, “Unsealed Covers: A Decade of the Constitution, the Courts, the State” by Gautam Bhatia, advocate Rebecca John commented on the Unlawful Activities Prevention Act, 1967. She stated, “UAPA is so problematic. Section 43 of the act allows for custody of an individual that extends from 90-180 days before filing a chargesheet. Also, section 43D (5) lays down the stringent grounds for bail. ”

She criticized the Supreme Court’s judgment in NIA v. Zahoor Ahmad Shah Watali, characterizing it as an “albatross around our neck.” She elaborated on the Supreme Court’s approach in the case, stating:

“In the Watali Case, the Supreme Court asserted that once the prosecution presents its charge sheet and evidence, it presumes it to be prima facie true, placing the burden on the defense to prove it as prima facie false. The Court also objected to any substantial examination of this evidence and criticized the Delhi High Court for conducting a mini-trial while dismissing the Delhi High Court’s findings.”

The Unlawful Activities (Prevention) Act is a historical artifact from the colonial era that continues to influence our modern postcolonial democratic system. They designed this colonial law to suppress dissent against the colonial authorities. This led to the imprisonment of anyone who spoke out against the colonizers. This Act prohibits and imposes penalties on activities that are unlawful and considered terrorist actions, which pose a danger to India’s integrity and sovereignty. It grants extensive authority to the Central Government to identify organizations as terrorist entities and establishes penalties for individuals involved in the activities of these organizations.

Such a law’s intent, impact, and consequences blur the line between legitimate acts of terrorism that harm a nation’s people and any opposition seen as a potential threat to the nation’s “sovereignty.” As a result, any voice or action opposing the principles of those in political authority becomes a target for suppression in the name of protecting the nation and its citizens. The state stifles ideas that don’t align with its absolute power, all while claiming to safeguard the interests of its people.

In theory, democracies empower branches such as legislative, electoral, judicial, and economic institutions, allowing diverse voices, even those in dissent, to be heard within the political landscape. Chantal Mouffe, in her book “The Democratic Paradox,” discusses the idea of creating a liberal democratic society that accommodates antagonistic voices and upholds the right to express dissenting opinions within a political system. However, the reality is that democracies like India have their shortcomings, which allow those in power to exploit their dominant positions, leading to the retention and enforcement of laws like the Unlawful Activities (Prevention) Act (UAPA).

In essence, the point is that postcolonial democracies often fall short of upholding the true normative ideal of democracy as they grapple with the dominance of those in power and the implementation of laws like the UAPA.

Many scholars argue that the Unlawful Activities (Prevention) Act (UAPA) creates a political deadlock because escaping legal entanglements becomes challenging once they charge someone under it. A significant change was made to Section 43D (5) of the UAPA following the 2008 Mumbai terror attacks, further complicating seeking bail for the accused.

This amendment introduced Section 43D (5), which mandated that a court deny bail if there were reasonable grounds to believe that the charges against the accused were prima facie accurate. This provision made it difficult to secure bail because it compelled the Court to determine the guilt based on the charge sheet prepared by the National Investigation Agency (NIA). The accused were not allowed to present evidence beyond what was in the charge sheet as part of their defense (Supreme Court Observer).

Following the repeal of POTA, an amendment to the Unlawful Activities (Prevention) Act (UAPA) in 2004 introduced a distinct offense related to the phrase “terrorist act.” The definition of a “terrorist act” is outlined in Section 15, which categorizes an individual or organization as engaged in terrorist activities if they are involved in:

“Creating or using bombs, dynamite, or any other means, including other explosive substances, that are likely to endanger the public.”

The phrase “any other means of whatsoever nature” grants authorities wide-ranging power, enabling them to target and harass vulnerable individuals. Moreover, using the word “likely” empowers the government to detain someone even before committing harmful actions.

The significance of “any other methods of whatever nature” lies in the government’s authority to classify virtually any physical act as a terrorist activity. Establishing such a low threshold for defining terrorist activities is the government’s discretionary tactic to suppress dissenting voices.

Arrests under the Unlawful Activities (Prevention) Act (UAPA) are subject to specific legal provisions and protections. Article 22 of the Constitution provides constitutional safeguards against arbitrary arrest and detention. It guarantees that anyone detained or arrested has the right to be informed of the reasons for their arrest. The police must present any arrested or detained individuals before a Magistrate within twenty-four hours, depending on the circumstances.

Furthermore, when arresting without a warrant, Section 50 of the CrPC mandates that the police immediately inform the suspect of the charges and the alleged crime for which they are being detained. However, under the UAPA, arrests can be made without providing the accused with a concrete justification.

In practice, the arresting officer has to inform the suspect of the charges against them “as soon as possible.” This lack of a specific legislative time limit for the phrase “as soon as may be” can be exploited by a police officer or other authorized individuals to unlawfully prolong a person’s custody beyond what is customary or legally necessary.

To enhance the discretionary powers related to arrests and detention, the 2008 amendment extended the maximum imprisonment period from an already high 90 days, which exceeded global norms, to 180 days. Judges only extend detentions within the initial 90-day period. However, government prosecutors can do so by demonstrating that the investigation is progressing after the initial 90 days.

Apart from proving that the investigation is ongoing, a prosecutor must also show that releasing the detained person from custody poses a significant risk. Section 167 of the Criminal Procedure Code specifies that “a person cannot be detained for more than 90 days if the officers suspect them of an offense punishable by death, life imprisonment, or a sentence of not less than ten years, and for 60 days if they are accused of any other offense.”

The right to a fair trial is a fundamental rule of law.  A crucial aspect of this right is the presumption of innocence, which must never be compromised. The Unlawful Activities (Prevention) Act (UAPA) undermines this element of the right to a fair trial by assuming the accused’s guilt unless the accused can prove their innocence.

Section 43A of the Act states that in the absence of evidence to the contrary, the Court will presume the accused’s guilt if they find conclusive evidence against them. This provision reverses another international principle of criminal law, which places the burden of proving guilt on the prosecution.

In the Watali case of 2019, Zahood Ahmad Watali’s judgment, a Supreme Court bench led by former judge AM Khanwilkar, overturned the bail granted by the Delhi High Court to a Kashmiri businessman. The High Court had determined that there were no ‘reasonable grounds’ to believe that the allegations against the accused under the Unlawful Activities (Prevention) Act (UAPA) were prima facie valid. The High Court excluded certain pieces of evidence from consideration, deeming them inadmissible.

The National Investigating Agency (NIA) challenged this decision, arguing that the High Court had conducted a ‘mini-trial.’ Expressing disapproval of the High Court’s approach, the Supreme Court held that, at the pre-trial stage, no attempt should be made to delve into the merits and demerits of the case. It stated that the admissibility and credibility of the evidence presented by the investigating officer would be a matter for the trial itself.

The bench also emphasized that when deciding whether to grant bail, the Court should only need to establish a finding based on ‘broad probabilities’ concerning the accused’s involvement in the alleged offense. In essence, the Watali bench not only limited the Court’s examination at a pre-trial stage to the prosecution’s version of events, which remained unchallenged in cross-examination but also restricted conducting a thorough analysis of the prosecution’s case itself when considering bail under the Sub-section (5) of Section 43D. Consequently, this judgment allows courts to reference evidence presented by the National Investigating Agency, regardless of whether it is admissible or has probative value, as a basis for denying bail. This interpretation has constricted the stringent section, making it even more challenging for UAPA undertrials to obtain bail.

From KA Najeeb to Thwaha Fasal, there has been some advancement in liberalizing the bail jurisprudence concerning the Unlawful Activities (Prevention) Act (UAPA). In the Najeeb case of 2020, the Supreme Court affirmed the authority of a constitutional court to grant bail to individuals facing UAPA charges, regardless of Section 43D (5) if it satisfies them that their right to speedy trial under Article 21 is violated. The court applied this legal principle in a series of judgments, where extended periods of detention led the Supreme Court to release the accused on bail.

In the Thwaha Fasal case of 2021, the bench consisting of Justices Ajay Rastogi and Abhay S Oka made an effective effort to mitigate the strictness of the Watali principle. They ruled that the restriction on granting bail under Section 43D (5) would not apply if the charge sheet did not establish a prima facie case. In simpler terms, for a UAPA undertrial accused of committing a specific offense (s), the essential elements of those offense (s) should prima facie be evident solely based on the charge sheet for the Court to deny their bail application.

In the case of Vernon, the bench composed of Justices Aniruddha Bose and Sudhanshu Dhulia established that a bail plea under Section 43D (5) of the Unlawful Activities (Prevention) Act must meet the prima facie test outlined in Watali. This entails conducting “at least surface-analysis of the probative value of evidence,” and the Court should be satisfied with the worth of the probative value of such evidence. While Watali prohibits a court from extensively evaluating the evidence when adjudicating a bail application, Vernon (2023) has introduced a new form of analysis –shallow enough to comply with the existing precedent but deep enough to encompass low-value evidence that they could disregard it.

Recently, the Delhi High Court granted bail to Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, activists accused of conspiring to incite the Delhi riots and charged under the stringent provisions of the Unlawful Activities (Prevention) Act (UAPA). The Court ruled that protests and opposition against the government cannot be classified as “terrorist activities” until all the criteria outlined in the UAPA are satisfied. This decision highlighted how the state’s use of the UAPA to stifle dissent has made it challenging to distinguish between legitimate protest and terrorist actions.

The Guwahati High Court granted bail to an individual in October 2021 who had claimed on Facebook that the Taliban in Afghanistan are not terrorists. In this case, the Court emphasized that a “terrorist act” cannot be established solely based on Facebook posts without additional incriminating evidence. This underscores the higher threshold that must be met for actions to qualify as terrorist activities under the UAPA.

The Bombay High Court affirmed that the fundamental purpose of Article 19(1)(a) is to allow for open discussion and advocacy of a cause, even if it is unpopular. Article 19(2) only comes into play when such advocacy escalates to provocation. Consequently, mere advocacy for a cause does not suffice to be considered a terrorist act under the UAPA, setting a higher standard for actions to meet the Act’s requirements.

As a result, the courts have adopted a more lenient approach to granting bail under the UAPA and have acknowledged several rights of the accused within the Act’s stringent confines. However, it remains evident that bail decisions under the UAPA are discretionary. Thus leaving room for potential abuse by both the government and judicial authorities. This places individuals at the mercy of the judiciary’s ability to prevent the misuse of the law.

Furthermore, while the courts’ approach recognizes some rights of the accused, it primarily focuses on providing a remedy. This means that there must already be a violation of a fundamental right for the courts to intervene and safeguard the rights of the accused.

The Unlawful Activities (Prevention) Act (UAPA) has faced significant criticism for various reasons, and many argue that it has detrimental effects on democracy, civil liberties, and human rights. Here are some key reasons why the UAPA is often considered problematic:

• Broad and Ambiguous Definitions: The UAPA employs broad and vague language in its definitions, such as “unlawful activities” and “terrorist acts.” These vague definitions can be interpreted and applied in ways that infringe on legitimate dissent, protest, and freedom of expression.
• Presumption of Guilt: The UAPA places the burden of proof on the accused to demonstrate their innocence, contrary to the principle of “innocent until proven guilty.” This presumption of guilt can lead to unjust detentions and restrictions on civil liberties.
• Long Detention Periods: The UAPA allows extended periods of detention without bail, often up to 180 days. Such prolonged detention can infringe on the right to a fair trial and its use as a tool for harassment.
• Chilling Effect on Free Speech: The UAPA’s provisions can have a chilling effect on free speech and dissent. Individuals may self-censor out of fear of being labeled terrorists or facing legal repercussions, stifling democratic discourse.
• Abuse for Political Purposes: Critics argue that governments have used the UAPA to target political opponents and activists, silencing dissent and opposition. The law can be misused to target individuals and groups critical of the government.
• Lack of Safeguards: The UAPA lacks sufficient safeguards to prevent abuse. There is limited oversight, and the law gives authorities significant discretionary powers, leaving room for misuse.
• Overbroad Scope: The UAPA has a broad scope, allowing the government to designate organizations as terrorist organizations, which can lead to restrictions on the activities of these organizations, even if they are engaged in legitimate advocacy or dissent.
• Impact on Minorities and Marginalized Groups: Some argue that the UAPA has disproportionately affected minority communities and marginalized groups, leading to their unfair targeting and persecution.
• Inhibits Legitimate Advocacy: The UAPA’s stringent provisions can inhibit legitimate advocacy for social, political, or environmental causes, hindering the functioning of civil society organizations.
• International Concerns: Human rights organizations and international bodies have expressed concerns about the UAPA’s compatibility with international human rights standards regarding fair trial and freedom of expression.

In conclusion, the courts can protect the accused from further infringements of their rights under the UAPA, but they cannot prevent the initial abuse of the law. Therefore, repealing the UAPA is crucial as its provisions allow for blatant abuse, and citizens’ access to judicial safeguards is limited or virtually non-existent. In summary, many criticize the UAPA , for undermining democratic principles, civil liberties, and human rights. Critics argue it grants excessive powers to the government and law enforcement agencies, leading to potential abuse and misuse against individuals and groups engaged in lawful dissent and activism.