September 22, 2020
Hello and welcome to All Indians Matter.
The recent arrest of Indian student activist Umar Khalid (pictured above) brings into focus yet again the controversial and draconian Unlawful Activities (Prevention) Act, 1967, better known as UAPA.
What exactly is the UAPA? What was it enacted for and how is it being used today? Why is it such a threat to our freedom? I’ll attempt to answer that in this podcast.
The UAPA was an anti-terrorism law whose main objective was to give the government sweeping powers to deal with activities directed against the integrity and sovereignty of India.
The Constitution enshrines certain freedoms but the law sought to create a route around it. The National Integration Council appointed a Committee on National Integration and Regionalisation to look into putting what were termed reasonable restrictions on freedoms. Based on the committee’s recommendations, the Constitution (Sixteenth Amendment) Act, 1963, was enacted to impose these so-called reasonable restrictions. The UAPA was the enabling legislation of the 1963 Act.
While it claims to protect citizens, the UAPA in fact violates the International Covenant on Civil and Political Rights of which India is a part.
It does this by giving the government the power to impose restrictions on the freedom of speech, the right to assemble peacefully and without arms and the right to form associations or unions.
This last amendment was enacted after the equally dreaded Prevention Of Terrorism Act, or POTA, was withdrawn. However, in the Amendment Act in 2004, most of POTA’s provisions were re-incorporated and further strengthened after the 2008 terror attacks in Mumbai.
But the most worrying – in fact, terrifying – change happened in July 2019 when the UAPA was expanded, allowing the government to designate any individual a terrorist and hold him or her without trial.
The list of most of those arrested under UAPA resembles nothing like a terror roll call. Instead, the law has been used to arrest a range of people who challenged the government democratically on issues ranging from labour to the Citizenship Amendment Act, or CAA.
Among them are trade unionist and civil rights activist Sudha Bharadwaj, poet Varavara Rao, human rights activist Gautam Navlakha, award-winning journalist Masrat Zahra, scholar and civil rights activist Anand Teltumbde, the pregnant student activist Safoora Zargar who later got bail, and another student activist Sharjeel Imam.
The Indian government has used the indiscriminate power the law gives it to designate these people as terrorists. The law is contrary to the principle of ‘innocent until proven guilty’ and has no objective criterion for the categorisation of an individual as a terrorist.
Public interest litigations filed against UAPA have said it curtails the right to dissent and does not provide any opportunity to the individual to present his or her innocence before arrest.
While suppressing dissent, the UAPA criminalises even ideas and political protests. It can simply bypass fundamental rights. Those arrested under UAPA can be incarcerated for up to 180 days without even a chargesheet being filed, leave alone guilt being proved. It confers upon the government broad, undefined discretionary powers and authorises the creation of special courts that can hear secret witnesses and have hearings closed to the public.
There isn’t even a definition of terrorist literature or theory. This means that any book or publication that remotely touches upon communism can be labelled as Naxal literature and you can be arrested for it.
In fact, the law even allows for searches, seizures and arrests based on the “personal knowledge” of police officers without written validation from a judicial authority. The police are empowered to enter your house on the mere suspicion of you being part of an “unlawful association”.
Using these provisions, the Jharkhand police even tried to charge thousands of Adivasis with sedition because of their involvement in the Pathalgadi movement – which merely talks about the rights the Constitution gives them.
The government has consistently applied the sedition charge to silence dissent under laws that are vaguely worded while justifying it as a way to deal with terrorists. Essentially, anyone who opposes or criticises the government can be charged under the UAPA.
Many thought leaders, journalists and students who opposed the CAA are being investigated with intent to prosecute under UAPA even as those who attacked the Jawaharlal Nehru University in January 2020 roam free. These attackers were affiliated to the student wing of the ruling Bharatiya Janata Party and have been identified.
Let’s take a look at the conviction rate under UAPA. Data available from the National Crime Records Bureau Report, 2018, suggests that the conviction rate under UAPA was only 14.5% in 2015 and as high as 49.3% in 2017. The number of people arrested in 2018 was 1,421 with only 35 convicted – that’s less that 30%. Even among those, several may well be acquitted after appeal.
No wonder the United Nations Special Rapporteurs, on May 6, 2020, wrote to the Indian government raising concerns about UAPA. The letter points to the non-compliance to international standards on counter-terrorism legislation and expresses concern over violations of human rights. It forcefully questions the designation of individuals as terrorists and cites discrimination against religious and other minorities, human rights activists and political dissidents.
At no other time have our most basic freedoms been under such threat. Citing dubious national interests, the government has wielded UAPA as a weapon against freedom itself. A law that should never have come into existence is now a convenient tool to silence all opposition to the government’s divisive policies and its mismanagement of virtually every aspect – from the economy to international relations and defence.
Thank you for listening. Please visit www.allindiansmatter.in for more columns, videos and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Catch you again soon.