Timeline of Bhima Koregaon Case
What is the UAPA?
India’s draconian ‘Unlawful Activities Prevention Act’ (UAPA) is a piece of security legislation that allows the government to arrest citizens for crimes they might possibly commit in the future. UAPA facilitates the government’s bypassing of various constitutionally guaranteed civil liberties, and fundamental rights and freedoms that protect citizens from abuses of state power.
The draconian ‘Unlawful Activities Prevention Act’ (UAPA) is India’s foremost “anti-terror” law. Enacted in 1967, it was amended in 2004 to incorporate elements of the Prevention of Terrorism Act (POTA) which was repealed in response to widespread public opposition. Further amendments were made in 2008, 2012, and 2019 to make the UAPA even more repressive. The law allows the government to arrest citizens for crimes they might possibly commit in the future. Those arrested under the UAPA can be incarcerated for up to 180 days without charges being filed.
The UAPA prescribes seven years imprisonment for “advocating, abetting, advising or inciting the commission of any unlawful activity.” Unlawful activity is defined vaguely in the law as any action, whether by an individual or an association, which “disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India” or “causes or is intended to cause disaffection against India.”
UAPA criminalizes the holding of particular opinions, or even the mere possession of literature that might possibly cause “disaffection” with the state. UAPA also criminalizes various forms of non-violent political activity, including political protest. UAPA’s definition of “terrorist activity” is so broad as to be vague and includes activities that are legitimate and essential to the work of human rights defenders. The UAPA thus repackages the holding of ideas as crime.
Until 2019, the police needed to establish that those arrested in UAPA cases were members of banned organizations to secure a conviction in a court of law. But an amendment made in July that year has enabled the government to designate any individual as a “terrorist,” bypassing the need to establish membership or association with banned groups.
The UAPA allows the government to bypass constitutionally guaranteed civil liberties and fundamental rights that protect citizens from abuses of state power, such as the presumption of innocence, provision of bail or anticipatory bail, protection from warrantless search, seizure and arrest of individuals, time limits on detention by the police, requirements that the state must file a charge sheet within a specified time, etc. Accounts by those incarcerated under UAPA reveal that neglect, mistreatment, and torture are common, including the use of solitary confinement even during pre-trial police custody.
UAPA authorizes the creation of special courts with the ability to use secret witnesses and to hold closed-door hearings. A Supreme Court judgement in April 2019 further tightened UAPA by making it impossible to apply for bail on grounds of the inadmissibility of the evidence. It ruled that the courts could not examine what is admissible and what isn’t at the stage of granting bail. That can only be done at the stage of trial. Thus the quality of the evidence is of no consequence until the trial itself, and anyone arrested under the UAPA can be held indefinitely until the trial. This explains how the state has kept the BK16 in jail for so long.
International human rights organizations such as Amnesty International have argued that UAPA violates international human rights treaties and have raised alarm bells over its “sweeping definitions of ‘membership’ of organizations,” specifically referring to the 2012 amendment to UAPA’s Section 2 which criminalizes the right to form associations by expanding the definition of person to include “an association of persons or body of individuals, whether incorporated or not.” Human Rights Watch has issued multiple reports about the politically motivated use of UAPA and its use to crack down on dissent.
According to data provided by the Ministry of Home Affairs (MHA) in the Lok Sabha (lower house of Parliament), there has been a 72% increase in the number of arrests made under the draconian Unlawful Activities (Prevention) Act (UAPA) in 2019 in relation to those made in 2015. The MHA revealed that as many as 1,948 persons were arrested under the UAPA in 1,226 cases that were registered across the country in 2019. Between the years 2015 and 2018, 897, 922, 901 and 1,182 cases were registered and 1,128, 999, 1,554 and 1,421 people were arrested, Union minister of state for home G. Kishan Reddy said in a written reply. In a letter addressed to the Indian government on December 22, 2020 a team of Special Rapporteurs of the United Nations criticized the misuse of the law against human rights defenders and journalists in Kashmir. The letter said the government action was “aimed at discrediting their work.”
An earlier reply by the government in the Lok Sabha had revealed that only 2.2% of cases registered under the UAPA between 2016 and 2019 resulted in convictions.
Why is the UAPA Problematic?
- UAPA criminalizes the holding of particular opinions, or even the mere possession of literature that might possibly cause others (one’s friends/ members of a group/ one’s students/ one’s readers/ one’s community) to have thoughts that are in disagreement with the state, i.e. cause “disaffection” with the state. In other words, crimes are no longer understood as acts of commission or omission but as thoughts that might influence others’ thoughts. UAPA also criminalizes various forms of non-violent political activity, including political protest. UAPA’s definition of “terrorist activity” is so broad as to be vague and concerns activities that are legitimate and essential for any people’s rights activist. UAPA is thus an assault on citizens’ rights to expression, assembly and association which are guaranteed under Article 19 of the Indian constitution. It is also important to note that freedom of expression is not an individual right but a collective right of groups, unions and political parties to disseminate their views and mobilize people. UAPA specifically targets this right.
- UAPA can and has been used to bypass fundamental legal rights and procedures such as the presumption of innocence, provision of bail or anticipatory bail, protection from warrantless search, seizure and arrest of individuals, time limits on detention by the police, requirements that the state must file a charge sheet, etc. (those arrested under the auspices of the UAPA can be incarcerated upto to 180 days without a chargesheet being filed). UAPA thus directly violates Article 21 of the Indian Constitution which guarantees an individual’s right to life and liberty.
- UAPA confers broad discretionary powers on the government and authorizes the creation of special courts with the ability to use secret witnesses and to hold closed-door hearings. UAPA was amended in 2008 and 2012 making it more repressive and regressive, and remains India’s foremost “anti-terror” law. It has inspired other state-level laws such as the Jammu and Kashmir Public Safety Act, 1978; Andhra Pradesh Public Security Act, 1992; Maharashtra Control of Organised Crime Act, 1999; and the Chhattisgarh Special Public Security Act, 2005. These local laws are sometimes even more draconian than the UAPA and are used by the state prosecution agencies in addition to the UAPA. The CSPSA, for example, prohibits the media from reporting on any activities that can be seen as ‘unlawful’ activities, which in effect bans the public’s knowledge of the government’s decisions and its ability to debate them.
Accounts by those incarcerated under UAPA reveal that neglect, mistreatment and torture are common, including the use of solitary confinement even during pre-trial police custody. In one of the more recent examples of such ill-treatment, Prof. G.N. Saibaba, a professor of English from Delhi University who is 90% disabled and is confined to a wheelchair is being held in cells without ramps or toilets although they are legally mandated for disabled inmates. Dr. Saibaba suffers from poor cardiac health and chronic back pain but has been denied medical care. In another example, Dr. Binayak Sen, a physician who worked for over 30 years with underserved indigenous and poor populations in the rural districts of Chhattisgarh was detained for two years without a trial under the UAPA. Dr. Sen was granted bail in 2011 after an international campaign protested his incarceration, but is yet to go through a trial as of November 2018. In practice, UAPA is used to squelch the expression of dissent through the intimidation, harassment and persecution of dissenters. It threatens the very existence of public debate and the freedom of the press and raises fundamental questions about citizens’ constitutional right to dissent in a democracy, and the state’s obligation to respond to such challenges.
Those arrested under the UAPA are writers, poets, teachers, lawyers, activists, trade unionists, physicians, and ordinary citizens, targeted for defending the rights of India’s beleaguered minority communities, such as Muslims, Dalits and Adivasis (India’s indigenous communities), and for voicing public concern about state repression, including extra-judicial killings. In effect, UAPA operates by criminalizing the very performance of civil liberties activities.
Civil liberties and Democratic rights organizations in India such as the People’s Union of Civil Liberties (PUCL), People’s Union of Democratic Rights (PUDR), etc. have documented the excesses of UAPA and have called for repealing the law.
International human rights organizations such as Amnesty International have argued that UAPA violates international human rights treaties and have raised alarm bells over its “sweeping definitions of ‘membership’ of organizations”, specifically referring to the 2012 amendment to UAPA’s Section 2 which criminalises the right to form associations by expanding the definition of person to include “an association of persons or body of individuals, whether incorporated or not”. Human Rights Watch has issued multiple reports about the politically motivated use of UAPA and its use to crackdown on dissent.
- “India’s Unforgivable Laws” Economic and Political Weekly
- Fifty Years of Unreasonable Restrictions Under the Unlawful Activities Act The Wire magazine, March 2017.
- Colonial Continuities: Human Rights, Terrorism, and Security Laws in India – A Report by members of the Committee on International Human Rights of the Association of the Bar of the City of New York.
- WATCH: Lawyer Rebecca John Breaks Down How The UAPA Can Criminalise Peaceful Dissent
- Misuse of the Unlawful Activities (Prevention) Act The Economic and Political Weekly, March 2017.
- Saibaba conviction: How a draconian law has turned mere thought into crime Scroll.in
- Through the lens of National Security – Report by the People’s Union of Democratic Rights, 2008.
- The Terror of Law: UAPA and the Myth of National Security – Report by Coordination of Democratic Rights Organization, April 2012.
- Back to the Future: India’s new Counterterrorism Laws Report by Human Rights Watch, 2008.
- https://www.thequint.com/explainers/uapa-provisions-terrorist-organisation-membership-activists – examines various aspects of UAPA
- https://www.indiatoday.in/magazine/up-front/story/20180917-why-the-uapa-must-go-1333213-2018-09-07 – “The point of these extraordinary laws is not to punish the terrorist, the seditionist, the goonda; it is to keep the whistleblower, the dissenter, the inconvenient in jail for as long as the trial lasts.”
- https://www.youtube.com/watch?v=yX9qFbxuwd4 – we could focus on detention and delay of bail; go to specific parts of the 8 minute interview.
- Terrorized by Law,Indian Express: https://indianexpress.com/article/opinion/columns/unlawful-activities-prevention-act-arrests-sedition-supreme-court-5361305/“The Unlawful Activities Prevention Act 1967, was enacted by Parliament in 1967, as sections 123 and 124 of the Indian Penal Code were thought to be inadequate to control organised crime and acts of terrorism. Oddly enough, these provisions were considered adequate by the British colonial government to quell anti-state forces! Today several human rights activists, communist thinkers, poets and Dalit voices are being detained under this Act. Even the reading of a translation by Bertolt Brecht, the famous German playwright, is being called an act of inciting sedition.”