Tripura riots and the misuse of UAPA

UAPA, an anti-terror law, is being invoked to curb dissent, and while judges have spoken against its misuse, there is a need to fix its draconian provisions

On Wednesday, Tripura Police issued a notice to Delhi based lawyer Mukesh, informing him that a case has been registered against him under section 13 of the Unlawful Activities Prevention Act (UAPA), apart from other Indian Penal Code (IPC) sections. Another Delhi based lawyer, Ansar Indori, received a similar notice. They were members of a fact-finding team that visited Tripura after it witnessed anti-Muslim violence. Upon their return, along with others, they released a report titled, Humanity under attack in Tripura; #Muslim lives matter. For this, the two find themselves charged under an anti-terror law.

Other than UAPA, the two have also been accused of promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, forgery, criminal intimidation, intentional insult with intent to provoke breach of peace and hatching a criminal conspiracy. If this was not travesty enough, cases were filed against as many as 102 individuals and organisations for their social media posts and statements. Those who stand accused include journalists, human rights advocacy groups and socio-political activists — both domestic and foreign.

Also read: Tripura violence: Journalists among 102 booked under UAPA for 'distorted and objectionable' posts

It is difficult to see how these charges will stand against the accused in any court of law. But more than punishing the real culprits or preventing crimes or unlawful activities, the objective is to stifle dissent and target those exposing human rights violations and other crimes.

Such a course of action serves two ends. It is a message to those trying to document and protest human rights violations to keep their mouth shut or prepare to have cases slapped on them. Second, it is intended to ensure that fighting these cases dissipates the time and energy of these individuals in defending themselves rather than human rights work, especially fighting for the most marginalised of our society.

The use and misuse of the IPC and UAPA's section 13 are well documented by non-governmental and governmental organisations, including courts and human rights bodies. Last month, retired Supreme Court Justice Rohinton Fali Nariman urged the apex court to "strike down" the sedition law and offensive parts of the UAPA to let citizens breathe freely. Justice Nariman pointed out, "There is a chilling effect on free speech. If you are booking persons, including journalists, under these laws which come with large sentences and no anticipatory bail, people would not speak their mind."

Also read: Rahul Gandhi flays use of UAPA in Tripura

According to former Supreme Court Justice Deepak Gupta, the UAPA should not remain in its current form. Justice (retired) Madan Lokur has said that the courts, society and the State should consider the mental trauma afflicted on the families of activists, journalists and civil society members accused of sedition and UAPA. Justice DY Chandrachud of the Supreme Court had noted earlier this year that the UAPA should not be misused for stifling dissent.

Over the years, governments have used various sections of the UAPA to subvert the freedom of speech and association. Once charged under the law, it becomes difficult to avail bail while the trial stretches on for years. However, the conviction rate under the UAPA is abysmally low since often there is hardly any tangible evidence in such cases. In other words, if one is charged under the UAPA, the trial process can become the punishment.

Interestingly, on August 4, the Centre informed Parliament that 1,948 people were arrested under the UAPA in 2019. Of these, only 34 were convicted under the law. According to the data the Union Home Ministry tabled in Parliament in February, only 2.2 per cent of cases registered under the UAPA between the years 2016-2019 ended in convictions by the courts.

The abuse of the law is as rampant as in the case of its earlier incarnation, the Prevention of Terrorism Act (POTA). When the UAPA, initially enacted in 1967, was amended in 2004, it incorporated most provisions of the POTA. It was further amended in 2008, and most recently in 2019. The POTA was repealed because of its widespread use to target political opponents and dissidents by the State. The UAPA in its current form is but an advanced version of the POTA, barring one aspect – the admissibility of a confession before the police as evidence in court.

Also read: Tripura police seeks details of Facebook, Twitter users spreading fake news

After its latest amendments, individuals can also be declared terrorists and their properties seized even before their crime is proven in a court of law. Such provisions have enlarged the scope of its misuse, as we have witnessed in several cases. More problematically, the UAPA weakens the fundamental right to free speech and association.

It is heartening to note that judges have started to speak against the law. They should be lauded, but this by itself will not fix our already broken criminal justice system. Instead, we need judgments based on facts and evidence, not emotions, suspicions, and to satisfy the so-called collective conscience and national security.

In this regard, the judgement by the Delhi High Court in the (UAPA) case granting bail to student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha was a step forward. "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," the court had noted in its order while granting bail to Narwal and Kalita.

But later, during the Delhi Police appeal, the Supreme Court observed that the HC's orders granting bail to three student activists "shall not be treated as a precedent in any other case or relied upon in any court proceeding", which was two steps backwards. Orders or mere observations like these lead to the UAPA invoked without application of mind or to harass, intimidate and stifle the voice of the voiceless.

Fortunately, last month, the Supreme Court passed a significant judgment (Thwaha Fasal vs Union of India). It restored the bail granted to student activists Thwaha Fasal and Allan Shuaib, facing charges under the UAPA and arrested by the Kerala Police for their alleged Maoist links. In its order, the Supreme Court observed that mere support to a terrorist organisation as a member or otherwise is insufficient to attract an offence under the UAPA.

The order is important since, in most cases, people are charged and made to languish in jails based on mere suspicion or police claims. One hopes that the Supreme Court order is followed in letter and spirit, else there is no other way but to strike down the offending parts of the UAPA, as suggested by Justice Nariman.

(The writer is a multilingual journalist and researcher)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.