Wednesday, 26 January, 2022
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In Gogoi, Kalita, Narwal and Tanha release, the UAPA still won

By allowing indefinite detention of nearly anyone who dissents, the UAPA becomes only a tool of political safety and not national security.

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On 1 July, Akhil Gogoi, an MLA from Assam, was discharged of all terrorism allegations under the Unlawful Activities (Prevention) Act or UAPA. Arrested for his connection with the protests against the Citizenship (Amendment) Act, he spent 567 days in pre-trial custody. On his release, Gogoi described the verdict as “historic”, declaring it a “turning point” in the history of this contentious legislation; one that would serve as a significant precedent for all future cases under the UAPA.

Two weeks earlier, Pinjra Tod activists Devangana Kalita, Natasha Narwal, and Jamia Millia Islamia student Asif Iqbal Tanha were released on bail by the Delhi High Court after spending over a year in pre-trial custody for comparable charges of terrorism. All three were students, arrested in connection with the anti-CAA violence that occurred in Delhi in February 2020. They walked out of Tihar Jail victorious, chanting slogans of ‘Lal Salaam’ and ‘Inquilab Zindabad’. Shortly after, the Supreme Court ruled that the High Court’s decision would be deprived of precedential value and could not be used to grant bail to similarly placed detainees under the UAPA.

At about the same time that Kalita and others were released, a special court acquitted Ilyas Mohammed Akbar and Mohammed Irfan Gaus of terrorism under the UAPA for lack of evidence. They had spent nine years in custody awaiting their verdict. Another court released Bashir Ahmad Baba on 19 June this year, acquitting him of terror charges after 11 years of detention.

There is a trend here, evident to those who care to cast even the most passively discerning eye. Individuals charged with terrorism under the UAPA routinely spend years locked away in detention awaiting trial or a bail hearing. On release, their freedom is celebrated as a small triumph against the bleak machinations of the police State. Much admiration is showered on these critical judicial interventions. Whispers of the verdict’s landmark nature do their rounds. Those released are invited to interviews to describe their elation at having escaped conviction. And everyone returns home content, the glow of a hard-fought victory warming their belly.

What goes unnoticed in this fanfare is that the Unlawful Activities (Prevention) Act has performed its intended role flawlessly.

Also read: Bandh without ‘incitement to violence’ not terror act: Why NIA court cleared Gogoi of UAPA

UAPA — A law that craves custody not convictions

One would be forgiven for presuming that the primary aim of a criminal statute such as the UAPA is to produce convictions. It is not. According to the government’s own data, of the 5,922 individuals arrested under the UAPA between 2016 and 2019, only 132 received convictions. That means of those charged with terrorism under the Act, only about 2 per cent are actually ever found guilty. More troubling still, chargesheets are only ever filed in 9 per cent of total cases. For the remaining 91 per cent, the investigating agency simply opts not to frame charges, allowing them to walk free. By all measures, the UAPA seems like a terribly ineffective law. And yet, its use has only grown under the Narendra Modi government, with a 72 per cent rise in the number of arrests made under this Act in 2019 compared with those in 2015. The explanation for this seemingly peculiar increase in the UAPA’s popularity lies in its ability to produce elongated periods of pre-trial custody.

This exceptional regime for detention is constructed through three prongs under the UAPA. The first is a nebulous definition for the offence of ‘terrorism’. Section 15, which defines a terrorist act, includes within its terms any act that “threaten[s] the unity, integrity, security, economic security or sovereignty of India”, that “strike[s] terror or [that is] likely to strike terror in the people”, or that “overawes by means of criminal force or the show of criminal force”. Each of these phrases is thoroughly pliable, allowing their meaning to be moulded to suit the interests of those applying the law. Nearly any conduct that displeases a government could, ostensibly, be read into one of these terms to produce an arrest. This was precisely why the Delhi High Court’s judgment in the Asif Tanha case casts doubts on the constitutional validity of this provision because of its inherent vagueness.

Once arrested, the second prong of the UAPA kicks in: Section 43D(2). This provision allows an individual to be placed in police custody for up to a period of 180 days during the pendency of investigation. Under ordinary criminal procedure, even the most heinous offences only draw a 90-day custody period during investigation.

Also read: I have not spent a day or night in my cell without extreme anxiety: Umar Khalid from Tihar

The final prong in this picture is provided by Section 43D(5), which does not permit a court to release an accused person on bail if there are grounds to believe that the accusations against them are “prima facie true”. The standard of proof required to meet prima facie truth is incredibly shallow. In Ranjitsing Brahmajeetsing v. State of Maharashtra, the Supreme Court noted that no detailed examination of the evidence or case papers is required to meet this standard. Moreover, the decision in Sajjan Kumar v. Central Bureau of Investigation suggests that if the arguments put forth by the prosecution are internally consistent and would prove the accused’s guilt if presumed to be true, this is ordinarily sufficient to establish that the accusations are prima facie true. It is for this reason that obtaining bail under the UAPA is considered virtually impossible.

The cumulative effect of these provisions is that an individual accused of terrorism under the UAPA could spend several months or years in custody, awaiting trial, deprived of bail – as demonstrated by the cases of Gogoi, Kalita, Narwal, and others. What this allows a government to do is silence dissent and confine those who stir the pot without any obligation to eventually prove their guilt. Why pursue a conviction at all when the UAPA already permits the detention of the accused for lengths akin to a prison sentence?

Also read: Police blurred right to protest & terrorist activity: Delhi HC gives bail to Kalita, Narwal, Tanha

National security or political safety?

That the UAPA impinges on civil liberties and throws procedural fairness out the window is hardly a novel argument. Others have already made this argument in a better form than I ever could. But the importance of civil liberties and human rights in our current polarised political climate is contested, and those of different political leanings might well be inclined to argue that protecting national security is more important than preserving our freedoms. So, rather than prove the draconian nature of the UAPA, it might be more effective here for me to make a more bipartisan argument — that the UAPA does not actually assist in furthering national security.

Though originally intended to address unlawful organisations, the UAPA was amended to contain anti-terror provisions, taking the place of the Prevention of Terrorism Act when the latter was repealed in 2004. As such, its primary purpose now is protecting national security — and this is the label leveraged by the Narendra Modi government to claim legitimacy for its sweeping arrests of protestors. But does it truly further this purpose?

Extended periods of pre-trial custody do not foster more effective investigation or improve the likelihood of convictions; this has already been demonstrated in the United States with the Patriot Act. Rather, they breed laxity and forgive incompetence amongst investigative agencies. Not only is this borne out by the statistics discussed above, it is also demonstrated by the cases of Gogoi and Kalita and others where much of the evidence adduced simply comprised speeches and publicly available materials. Elongated detention also leads to the practice of informal plea-bargaining where those accused of crimes plead guilty because their period of detention under the UAPA might actually exceed the length of the sentence that would be handed down if they were found guilty. This allows investigative agencies to maintain the façade that justice has been served when, in truth, the true perpetrators of terrorism are still out free.

If bringing terrorists to justice is, indeed, the goal, then what we need is prompt investigation and speedy trials. The UAPA does precisely the opposite. By allowing the indefinite detention of nearly anyone who offers dissent, the UAPA is only a tool of political safety and not one of national security.

 The author is a DPhil candidate and Rhodes Scholar at the University of Oxford. He tweets @vnshjj. Views are personal.

(Edited by Neera Majumdar)

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