“Dissent is what rescues democracy from a quiet death behind closed doors.”
-Lewis H. Lapham
Article 19 of the Indian Constitution guarantees the Freedom of Speech and Expression to the citizens of India; the drafters of the constitution recognised the paramount importance of this fundamental right for India to be a healthy democracy.
Yet, in 2019 the world’s largest democracy faces a breach of its fundamental right enshrined in Article 19 as the Unlawful Activities (Prevention) Act has been utilised to book journalists, activists and scholars who have raised their voice against the majoritarian government with utter disregard to the concept of fair trial, which has been penned in Article 22 of the Indian Constitution.
The Unlawful Activities (Prevention) Amendment Act, 2019 received the Presidential assent on 8th August, 2019 – making the same enforceable and adding a weapon onto the government’s arsenal to curb dissent under the garb of preventing terrorism. The UAPA provides unparalleled power to the executive to brand any individual as a ‘terrorist’ and take action against him/her.
The basic judicial notion of “innocent until proven guilty” is entirely absent from the amended legislation as the burden of proof is shifted to the accused terrorist; i.e. the accused is already labelled as a terrorist when brought before the review committee. UAPA not only criminalises the fundamental right to association but also blurs the line between political dissent and criminal activity by criminalising dissident voices and acts of the proactive segment of the society.
The UAPA, in theory, is empowered to criminalise to kinds of activities –
1. Unlawful Activities
2. Terrorist Activities
However, the sheer vagueness in their description allows the government to fit a plethora of activities, which threaten the administration, under the umbrella of these definitions. Section 2(o) which defines unlawful activities pens down that there isn’t a need for physical violence on the part of the accused to make his/her act unlawful.
Section 15, which defines terrorist activities, also flows in a similar vein. The definition provided in the UAPA is a stellar outreach from all conventional description of terrorism as it encompasses “any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India”. The section in essence has the potential to label any protest done by the public as a terrorist activity.
However, the flip side of this harsh legislation is seen when it comes to the treatment of ‘activities’ done by the vote bank of the majoritarian government. The UAPA does not penalise communal violence, i.e., anti-Islam activities that are in clear violation of the secular nature of our nation gets a pass under this law.
Another facet that makes the recent amendment detrimental to our nation is the presence of Section 35. The working of UAPA requires an approval of a tribunal under Section 3 of the UAPA to effect a ban on an individual, however Section 35 does away with the need of such an approval. Therefore Section 35 allows the government to label whomsoever it wishes as a terrorist without any rationale, this helps the ruling class to weed out any form of dissent and thereby secure their leadership. Piling on to the dystopian nature of Section 35 is that fact that a ban on any individual/organisation brought through via Section 35 can be made perpetual – silencing a proactive section of the society.
The Redressal mechanism provided under the UAPA is also subservient to government interest. Any organisation or individual seeking redressal must approach a tribunal headed by a retired High Court Judge, who is appointed by the government itself. The conflict of interest could not have been more apparent; the redressal body can only be viewed as an extended arm of the government. The absence of any sitting justices from the review committee is also a cause for alarm as it weakens the influence of the judiciary to act as ‘check and balance’.
Section 38 of the UAPA states, “A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation.” Under this section any person who helps out organisations branded as terrorist organisations can also be charged under the UAPA, this becomes a paradoxical situation for workers in the medical industry as medical ethics is one that argues for universal treatment.
Section 39 of the UAPA states, “who, with intention to further the activity of a terrorist organisation, addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity.” This section empowers the government to label protesting organisation as ‘terrorists’ curtail all of their meetings.
“It is dangerous to be right in matters on which the established authorities are wrong.”
― Voltaire, The Age of Louis XIV
Voltaire’s quote could not have resonated more with a society than one post the 2019 UAPA amendment. The amendment bestows power upon the government to silence any form of dissent even before it has been disseminated. It has the potential to act as a roadblock to any form of progressive political thought that is not in line with the ideology of the ruling class. The effect of the amendment can be felt in every walk of life, but most notably in the field of journalism.
Journalists such as Masrat Zahra and Peerzada Ashiq have already faced the brunt of the new amendment among countless others. Their crime? Representing a minority segment of the society and voicing their concerns. Such a usage of the UAPA can lead to the absolute destruction of free press. The worst part of the arrest under the UAPA is the blatant disregard to fair trial practices enshrined under Article 22 of the Indian Constitution.
The UAPA makes all offences under it cognisable (Section 14), increases the period of detention without filing of a charge-sheet to 180 days (Section 43D), enhances the restrictions placed on bail (Section 43D), presumes the guilt of the accused (Section 43E), authorises the review committees to hold in-camera proceedings and keep the identity witnesses anonymous (Section 44) and also allows the usage of intercepted communication as evidence (Section 46). Such overwhelming power to the executive makes it a lot harder for an innocent man, who has been trapped in the web of UAPA, to clear out his name.
It is but common knowledge that the repealing of Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA) was merely a facade, the draconian sections of both the Acts have been included in the UAPA via amendments. However, one can find that a very important section has been omitted from the UAPA that was present in POTA, i.e., Section 58 of POTA. Section 58 acted as a safeguard against the malicious usage of POTA by the executive – it provided for a punishment for those government officers who utilised POTA to the detriment of the public. A similar form of safeguard would have helped the citizens of our country to curb the unlawful usage of UAPA. The paramount importance of such a safeguard is fully realised only when one sees the acquittal rates: as per the National Crime Records Bureau (NCRB), 67% of UAPA cases result in the acquittal or discharge of the accused.
Sajal Awasthi, a resident of Delhi, has approached the Apex Court via a PIL urging it to declare the 2019 amendment as unconstitutional. The petition contends that Section 35 of the UAPA Act allows the Central government to label any individual as terrorist and add the person into Schedule 4 of the Act. Therefore, this leads into the accumulation of vast powers to the central government, which is in contrast to the Article 14 of the Constitution.
A second PIL was filed by the Association for Protection of Civil Rights, urging the Hon’ble Supreme Court declare the Unlawful Activities (Prevention) Amendment Act, 2019, ‘unconstitutional’. In addition to the grounds challenged in the first petition, the new PIL also contends that the UAPA is violative of Fundamental Rights as enshrined under Article 19 (Right to Free Speech and Expression) and 21 (Right to Life) of the Indian Constitution.
The present author is of the opinion that safeguards are quintessential to enhance the UAPA and make it in par with the notion of fair trial and basic human rights.
Primarily, the notion of ‘accused presumed as guilty’ that exists under the UAPA must be reversed and replaced with the conventional judicial notion of ‘innocent until proven guilty’. In addition to this, the presence of incumbent judiciary must be made mandatory, i.e. the review committee must be headed by a sitting judge of the High Court or the Supreme Court.
Secondly, Section 43D that permits detention without filing of a charge-sheet up to 180 days must be amended. The duration of this detention must be substantially shortened to a maximum of seven days. Moreover, the UAPA must include a sunset clause – a sunset clause is ‘a statutory provision providing that a particular agency, benefit, or law will expire on a particular date, unless it is reauthorized by the legislature’.
Lastly, the UAPA must include a safeguard against its malicious usage. A section similar to that of Section 58 of POTA must be introduced that penalises the malicious usage of the UAPA. Such a section can also provide for a non-exhaustive list of ‘activities’ which requires a fast-tracked redressal when labelled as a ‘terrorist activity’. The aforementioned list must include activities undertaken by journalist and the government opposition as the present authors finds them of utmost important for a healthy democracy.
The recent usage of the UAPA to target scores of activists, lawyers, journalists and scholars who have protested against the Citizenship Amendment Act (CAA) shows us how a piece of legislation that was designed to curb terrorism is being utilised to curb dissent by the central government. Such a dark side of the UAPA can be used to penalise any form progressive political thought and charge those individuals who are trying to create a positive change in the society – such as the struggle of Shri Binayek Sen, Vice-President of the People’s Union for Civil Liberties (PUCL), against the state-sponsored militia of Salwa Judum.
Even though India, as a nation, needs a strong anti-terror legislation: it also needs to strike a balance between proactive action on terror and draconian laws that can affect its democratic nature for the worse.