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The Role of UAPA in Curbing Free Speech and Crushing Dissent

Shaantaanu Nair*

 

Abstract

This article outlines the brief history of terrorism laws in India and criticizes how the country has rolled out, yet another amendment which is being used by the government to the suppress minorities and the dissenting opinion. The article also focuses on the rights of the accused under Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as UAPA, 1967). It further sheds light on the manner in which the law is being misused by virtue of its vague nature, excessive power to policemen, and several other shortfalls. Finally, we will be focussing on reforms, and the scope for improvement.


Keywords:

Terrorism laws, UAPA, 2019 Amendment, Free Speech


Introduction

The right to dissent is an essential component of every functioning democracy. Our forefathers were well aware of this and considered it when they framed the longest constitution in the world. By the time the drafting of the constitution was finished, the right to dissent could be expressed through the following 3 clauses under Article 19 of the Constitution


· Article 19(1)(a): Freedom of speech and expression

· Article 19(1)(b): Freedom to assemble peacefully and without arms

· Article 19(1)(c): Freedom to form associations or unions


In fact, the Preamble itself states in bold letters, that all the citizens of India are granted ‘liberty of thought, expression, belief, faith and worship'. The very essence of our democracy, the Constitution has multiple in-built safeguards to ensure that the citizens are allowed to express their dissenting opinion through speeches and assemblies. Dissent and disagreement should be encouraged, rather than frowned upon. Developed countries have had their share of riots, because the citizens refused to comply with government orders which had an ulterior motive of oppressing them, like the recent violent protests in France against the Police Security Bill. [2]


Disagreement leads to discussions, debates and dialogues, which allow the lawmakers to right their wrongs and make the necessary changes. Criminalising this, would lead to the formation of an authoritarian regime. Unfortunately, this has taken over multiple countries globally, which leads to the creation of laws that may incriminate one, simply if one speaks against the policies formulated by the government of the said country. As the saying by the ‘Butcher of Uganda’, Idi Amin goes “[t]here is freedom of speech, but I cannot guarantee freedom after speech”.


It would not be improbable to claim that the Press Freedom Index is a good indicator of the right to dissent in any said country. This can be said because of any country who want to gag their citizen and suppress any criticism control the media as their first resort. It is, therefore, no surprise that European countries dominate the list, whereas countries like China and North Korea tend to be at the bottom of it. From a rank of 80 in the year 2002, India has gradually fallen down the rungs, with its position being 139 as of the most recent survey in 2019.[3] Furthermore, it may be not wrong to say that the country as a whole has been becoming extremely intolerant and hostile.

History of sedition laws in India

In the year 1963, after much deliberation by various committees set up by the National Integration Council, the 16th Constitutional Amendment was enacted whereby the government was empowered to place reasonable restrictions on the 3 clauses under article 19 we mentioned earlier. However, these restrictions had to be in the interest of the sovereignty and integrity of the country. Thereafter, the first statute created to combat terrorism directly was the Terrorist and Disruptive Activities (Prevention) Act (TADA). This came into effect in the year 1985 in light of the Punjab insurgency. These laws were highly controversial as the police officers were given extreme power. Accused could be detained for up to 60 days and could be prevented from approaching the judicial magistrate.[4] Section 19 of the Act prevented the accused from appealing anywhere except the Supreme court (Which could take years to come into fruition). Needless to say, the power was misused, leading to the filling of several thousand frivolous cases. By 1994, 76000 people were arrested under the Act, out of which, less than 2% of them were declared guilty. [5]


Eventually, the TADA was replaced by the Prevention of Terrorism Act, 2002 (POTA), which once again, had similar issues. More prominently, POTA was used by people in power against marginalised communities and to target political opponents. It allowed for security agencies to hold suspects for up to 180 days without filing any charges.[6] Finally, even after the repealing of TADA, multiple individuals arrested under it continued to be held in custody. Finally, POTA too was done away with, and UAPA rose to prominence. While UAPA did have several substantial changes and addressed some of the shortfalls of previous sedition laws, a large part of it was borrowed directly from the repealed acts, namely Chapter IV, V and VI. These dealt with ‘punishment for terrorist activities, ‘forfeiture of proceeds from terrorism’, and ‘terrorist organizations’ respectively. UAPA was initially an anti-secessionist law, and it was only after the UAPA Amendment Act, 2004, that its prominence in the field of terrorism increased.


It is, therefore, evident that our country has a poor history with terrorism laws, as these usually end up being, either unreliable or misused by the authorities. UAPA is no different, and it has been coming under immense scrutiny over the past few years, especially after the 2019 amendment.


Application of UAPA in 2018 Bhina Koregaon Violence

Perhaps the most infamous use of the Act would be the 2018 Violence in Bhima Koregaon, where Ambedkarite Dalits clashed with Marathas, resulting in the death of one person and injuries of several others. At the time, two groups were blamed for the violence. One is the right-wing Hindutva leaders for starting the riots. And the other being the leftist groups with Maoist links who are said to have instigated the violence with their incendiary speeches. Consequently, two first information report's were filed against both parties. However, the police officials decided to pursue only the latter[7]. Over the next few months, raids were conducted all across the country and several notable personalities who happened to be activists and intellectuals were arrested and charged with inciting the riots. They were said to be members of the banned CPI(Maoist). However, the evidence provided by the authorities is highly questionable. Things like ‘Possession of Maoist literature’ are not convincing indicators of membership, especially when we consider these people were academicians and learners. They could have been using the said literature for research or writing. In fact, due to the lack of legal recourse available to those booked under this draconian law, several continue to stay locked up, without their trial even beginning.


UAPA was heavily used to suppress the Delhi riots too, which took place due to the passage of the Citizenship Amendment Bill. However, these were after the 2019 Amendment which introduced a whole new set of vague and dangerous rules. We shall now look at these.


2019 Amendment of the UAPA

Under the Unlawful Activities (Prevention) Amendment Act, 2019, Section 35 was tweaked, giving the authorities power to notify an individual as a ‘Terrorist’. Prior to this, only organizations could be deemed as terrorist organizations. This was, however, not without a cause, as very often, organizations used to exploit this loophole. As soon as their name appeared in the schedule, they would dissolve the organization, and create a new organization under a different name, while retaining all of the previous members. Since this completely defeated the purpose of the act, the 2019 amendment was necessary. Those booked under this act have no recourse, and in cases where they are wrongly booked, may continue to stay locked up for months without a hearing.


Another factor to be considered with regard to the 2019 amendment is that the government blatantly ignores the precedents set by the court of law throughout the years. In the case of Arup Bhuyan v State of Assam, it was observed “mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”.


Misuse of the Act

There are also signs that the Act is being used to suppress minorities. Muslims and tribal groups especially account for a huge portion of arrests made[8]. UAPA itself was framed in an extremely vague form which gave the authorities a wide scope under which they could make arrests. Laws have such detrimental effect on the accused's life, and such a harsh punishment should always be rigidly defined. An example would be Section 2(o)(2) of the act which states any person is said to commit an unlawful activity if he “disclaims, questions disrupts or is intended to disrupt the sovereignty and territorial integrity of India”.


Is mere questioning as to the territory harmful to the citizens? The entire Act is riddled with vague and questionable statements which can be interpreted as per the convenience of the authorities.

UAPA also provides the policemen with extreme amounts of power. They could perform searches and make arrests without a warrant, based on personal knowledge due to the virtue of it being a cognizable offence under Section 14 of the Act. Due to the lack of legal recourse available, anyone could be put away in prison, as long as the police officer in charge, presented the facts in a manner that drew suspicion.


Some of the provisions of UAPA go against the spirit of federalism by giving undue powers to central authorities. The national counter-terrorism centre was established by the government in the year 2012 to combat secessionist and harmful activities in our country. Under the provisions of UAPA, they are allowed to seize property and make arrests, of any individual without the permission of the respective state government[9]. Once in police custody, the accused is not granted access to court and can be kept under custody for a period of 180 days. Finally, the burden of proof is on the accused, meaning they have to prove their innocence, rather than the authorities proving their guilt[10]. Combining all of these, the burden on any individual charged with the act is too high, and often times, they end up in prison for years without any remedy.


For instance, Varavara Rao, a revolutionary poet and activist who constantly raised awareness by giving lectures on minorities. As of 2021, it has been 3 years since his arrest in relation to the Bhima Koregaon violence. Still, in jail, he continues to suffer from ailments relating to his old age while being denied bail[11]. Similarly, Stan Swami, a tribal rights activist who was involved in the same case, was being denied even a straw to help ingest food, despite being a Parkinson’s patient[12]. The actions taken by the government to deal with activists accused of the Bhima Koregaon violence has left an ugly stain on the modern history of our country.


Conclusion

In a country like ours, where secessionists and criminals have been terrorizing the citizens for decades, sedition laws play an extremely important role in maintaining peace and stability. The current ruling party cannot be blamed for all its shortfalls, as irrespective of the party in power, the misuse of sedition laws run rampant. While the 2019 amendment of the UAPA did strengthen the ability of the forces to combat terrorists, it did not provide sufficient safeguards for those who might be wrongly arrested. Due to this lack of redressal, several continue being imprisoned without getting a court hearing. One possible solution could be to set up special courts, similar to fast-track courts set up by the Ministry of Law and Justice to ensure speedy trial. The longer an individual remains imprisoned, the further hate against them in society worsens, especially in crimes like sedition.


[1] Unlawful Activities (Prevention) Act [2]“France Police Security Bill: Protests Turn Violent Again.” BBC News, BBC, 5 Dec. 2020, www.bbc.com/news/world-europe-55201993. [3]Mathur, Swati. “India Slips Two Places on Global Press Freedom Index; Javadekar Says Media Has 'Absolute Freedom': India News - Times of India.” The Times of India, TOI, 4 May 2020, timesofindia.indiatimes.com/india/india-slips-two-places-on-global-press-freedom-index-javadekar-says-media-has-absolute-freedom/articleshow/75524827.cms. [4] Desai, Mihir. “The Dangers of UAPA Were Sown in Earlier Preventive Detention Laws in India.” The Leaflet, 30 Nov. 2020, www.theleaflet.in/the-dangers-of-uapa-were-sown-in-earlier-preventive-detention-laws-in-India/#. [6] Ibid. [7] Mandhani, Apoorva. “2 Years, 3 Charge Sheets & 16 Arrests - Why Bhima Koregaon Accused Are Still in Jail.” ThePrint, 31 Oct. 2020, theprint.in/india/2-years-3-charge-sheets-16-arrests-why-bhima-koregaon-accused-are-still-in-jail/533945/. [8]Nair, Ravi. “UAPA: Religious Minorities and Rights Activists Are the Main Target.” National Herald, 4 Sept. 2020, www.nationalheraldindia.com/opinion/uapa-religious-minorities-and-rights-activists-are-the-main-target. [9]Nair, Ravi. “UAPA: Descent from Rule of Law to Barbarism.” TheLeaflet, 5 Sept. 2020, www.theleaflet.in/uapa-descent-from-rule-of-law-to-barbarism/#. [10] Ibid. [11]Desk, NH Web. “Varvara Rao, a Poet in Prison: Why Is the Govt Scared of Him?” National Herald, 8 Aug. 2020, www.nationalheraldindia.com/india/varvara-rao-a-poet-in-prison-why-is-the-govt-scared-of-him. [12]Shah, Charul. “Bhima-Koregaon Case: Father Stan Swamy Files Plea for Woollens, Sipper, Straw.” Hindustan Times, 26 Nov. 2020, www.hindustantimes.com/mumbai-news/bhima-koregaon-case-father-stan-swamy-files-plea-for-woollens-sipper-straw/story-hYCuIiumPEDaQWJCK4GC1O.html.


 

[*] Shaantaanu Nair is an undergraduate student from Jindal Global Law School, India. Preferred Citation – Shaantaanu Nair, “The Role of UAPA in Curbing Free Speech and Crushing Dissent", Syin & Sern Law Review, Published on 13th May 2021.

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