It would seem like being a Kashmiri is a sure-fire way to get booked under the Unlawful Activities (Prevention) Act (UAPA), 1967. There is no other way to explain the detention of Bashir Ahmad Baba. Eleven years ago, Baba, who was 33 at the time, had gone to Gujarat to attend a camp on post-cancer care, when the Gujarat Anti-terror Squad arrested him, accusing him of being a Hizbul Mujahideen “talent-hunter”.
Only last month, he was acquitted by a local court after the police had no evidence to support the charges. But life had already changed a lot for Baba — he lost his father during his decade-long struggle to prove his innocence, leaving him nursing a life-long regret. “I could not attend the last rites of my father, who died of cancer,” Baba said, having been denied bail to attend his father’s funeral.
In another case in Maharashtra, Mohd Ilyas and Mohd Irfan were released after nine years in jail last month, as a court said the police did not have any evidence to prove that they were Lashkar-e-Taiba terrorists.
Official statistics on UAPA tells the whole story — police managed just a 29 per cent conviction rate in 2019 and 95 per cent of cases that reached courts in that year are still pending. Despite this poor track record, an increasing number of cases are being registered each year — 901 in 2017, 1,182 in 2018 and 1,226 in 2019. Of the 2,361 cases that went to trial in 2019, only 113 saw completion of which just 33 cases saw conviction.
In the recent past, activists, academicians, students and journalists have all been jailed under the “draconian UAPA”; some were jailed for protesting against the Citizenship Amendment Act and during the Delhi riots, while some others were imprisoned in the Bhima Koregaon case.
If suspected terrorists were charged with UAPA earlier, over the years the law has become a tool for the State to terrorise activists and dissenters. Anti-CAA protester and transparency activist Akhil Gogoi spent 18 months in jail on charges of having links with Maoists before being cleared by the courts. He accused the BJP-led governments in Assam and at the Centre of using the National Investigation Agency (NIA) to keep him in jail to contain anti-CAA protests, so that it has no impact on the Assam Assembly elections.
Gogoi, who launched the Krishak Mukti Sangram Samiti and won an election from jail said, “The best option for them was to book me under a draconian black law, brand me Maoist and keep me inside jail. That is exactly what they did.”
Presumed guilty
“UAPA presumes a person is guilty until proven innocent, contrary to the spirit of the Constitution. The provisions make it almost impossible to get bail,” former Karnataka Public Prosecutor and human rights lawyer B T Venkatesh told DH. “That there is no proper disclosure of evidence makes it more challenging,” he says.
Take the case of 84-year-old Jesuit priest Father Stan Swamy. Charged under the UAPA, he died in a hospital on July 5, fighting for his bail. His crime, his supporters and admirers say, was to stand up for the rights of tribal communities in Jharkhand. Curiously, NIA never sought his custody for questioning after his arrest in the Bhima Koregaon case on October 8 last year.
Swamy's co-accused, revolutionary poet Varavara Rao, was luckier. After a prolonged legal fight, he managed to get bail for medical treatment, while other co-accused like Sudha Bharadwaj, Surendra Gadling, Shoma Sen, Rona Wilson and Anand Teltumbde are yet to get bail. All were working for the underprivileged, highlighting human rights issues and questioning the government.
As academicians and activists were booked under UAPA, the Bhima Koregaon case sent shivers in the civil society. “There was some fear. Nonetheless, organisations continue to keep working,” People Union of Civil Liberties Karnataka president Y J Rajendra told DH.
In Uttar Pradesh's Mathura Jail, Malayali journalist Siddique Kappan is fighting his incarceration under UAPA. He was arrested on October 5 last year, while on his way to Hathras to cover the developments involving a young rape-murder victim. Police accused Kappan and three others of being Popular Front of India (PFI) activists who were headed to create trouble.
After he contracted Covid-19 and suffered from various ailments, the 41-year-old journalist was “chained” to a hospital bed, his wife Raihanath told DH. “He worked in Thejas daily of PFI till 2018. That does not make him part of PFI. Travelling with one does not make him a Popular Front activist. Also, it is not a banned organisation. So there is a sinister design. One should also not forget that this sends a message to the media to keep away from controversies. This is to scare journalists. Who will now go to such places?” Raihanath asked.
Misused law
Rajendra says laws like UAPA only abuse the provisions under the IPC. Citing the UAPA cases in the 2020 Bengaluru riots, he said, “These cases were communally motivated, with the intention of targeting the minority community. These laws are meant to create fear psychosis.”
Under the UAPA, authorities never see the end of the proverbial long rope, with activists highlighting several instances of the courts granting the NIA more time to file a chargesheet and subsequently denying bail to the accused.
Anis Ali Khan, one of the counsels for the accused in the Bengaluru riots case in which over a dozen people were arrested under UAPA, told DH, “When it comes to UAPA, one of the first responsibilities of a lawyer is to mentally prepare both the accused and their families for a prolonged jail period and court battle.”
With relaxed timeline for the State to file chargesheets and more stringent bail conditions, the UAPA offers greater scope for misuse compared to the Indian Penal Code.
Even an acquittal won't be helpful for many. “People see the accused as a "terrorist" even before their conviction, as they believe the investigation by police and other agencies to be true,” says Gulzar Azmi, Secretary of Legal Aid Department of the Jamiat Ulama-e-Maharashtra.
Not just that: Whenever there is a terror-related case, even people acquitted under the law face unnecessary harassment. Rasik Rahim, who was acquitted in the Panayikulam (Kerala) SIMI Camp case, says, "Once my house was surrounded by police when a blast took place in Kochi,” adding that UAPA accused face trouble as jail authorities would not act immediately even on medical problems.
The Delhi High Court order that granted bail to three student-activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha in Delhi riots case raised several questions on the UAPA, though the Supreme Court later said the HC's comments would not be considered precedent.
Precedent or not, the HC order rebukes the government invoking the UAPA at the drop of a hat, “We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.”
(With inputs from Shruthi H M Sastry in Bengaluru, Zulfikar Majid in Srinagar, Mrityunjay Bose in Mumbai, Sumir Karmakar in Guwahati and Arjun Raghunath in Thiruvananthapuram)