Priyamvada Rana | Caravan Daily
On the pretext of the crackdown on “terrorism”, the BJP Government has convincingly managed to pass UAPA (Amendment) Bill a legit law in the country. The new law empowers the Centre to designate any individual as a terrorist without a judicial trial. The law explains the government’s resolve to punish “urban Naxals”, “urban Maoists” and various other sections that the ruling regime deems as a threat to national security. The recent amendments have brought in a considerable change in the distribution of powers, prosecution of cases and its related investigation.
Under UAPA 1967 (before the proposed amendment), the Central Government could designate ‘organisations’ as terrorists under Section 35 of the Act. On the contrary front, an individual could be designated as terrorist only if they are found (on basis of adequate evidence) committing an offence relating to their membership to a terrorist organisation. Mere membership or designating without proof was not the basis of arrest under previous UAPA. This has changed now.
With the amendment in the UAPA, the state can “unilaterally categorise” individuals as terrorists without sufficient proof of their involvement in offence. A petition submitted in SC mentions how “it is necessary to draw a clear line of distinction between unilateral categorisation of an organisation as a terrorist organisation and unilateral categorisation of an individual as a terrorist because the latter carries with itself far more prolonged consequences and repercussions for a person’s liberty and to live freely with dignity.”
Such designations bring disrepute to the individual and further violate “Article 14, 19 and 21 of the Constitution of India” that grant freedom of expression, liberty and equal status.
“The Centre has framed a very loose definition of terrorism. This law is essentially designed to punish ‘thought crime’, criminalise ideas, views, and questions that one is asking the government,” says activist and secretary of the All India Progressive Women’s Association, Kavita Krishnan. She mentions about previous court judgments regarding UAPA cases where “courts have ordered that merely being a member of a banned organisation does not prove role in a terrorist act or make one liable to be tagged as a terrorist”.
For instance in 2015, Konnath Muralidharan, who was arrested by the Maharashtra ATS on the allegation that he was a member of CPI(M), a banned organisation under UAPA, was granted bail by the apex court as his arrest was based just on possession of “Maoist literature”, a forged PAN card and a few SIM Cards. The court observed that these proofs were “not sufficient to presume that the accused had indulged in a terrorist act”.
Cut to present amendment, “the Centre has annulled the burden of proving the individual’s involvement in offence or membership to a banned organisation. All these have become non-issues which were earlier the parameters. Now the State can simply designate anyone’s ideas as terrorist ideas. It can be used to curb dissent too as the definition of crime has become so vague”, says the activist.
“The law sanctions the State to keep alleged convicts under indefinite house arrest without a trial with no provision of bail. They can freeze their bank accounts, seize documents like passports, confiscate property and eventually all the restrictions imposed would lead to civil death of the person. This unwarranted use of power by the Executive is completely unconstitutional”
Changes in Prosecution amid high Acquittal Rate
In the present amendment, a major and conspicuous change is reversing the onus of proving guilt.
“Under criminal law, the prosecution has the burden of proving the guilt of the accused. When this burden is reversed with onus shifting on the alleged accused to prove his/her innocence, (as in UAPA) then it goes against the tenets of criminal law” says National Law University Professor Kunal Ambasta.
Mr. Ambasta stresses on creating a mechanism by the state where ordinary laws are subverted and stringent amendments are made to ease designation as an unlawful individual or a terrorist.
“Sometimes, the prosecution has to prove some basic facts such as the presence of the accused in the vicinity of an attack for the court to place the burden on the accused, which is provided under the law. To place the burden of proving that a person is not a terrorist after such a designation that the UAPA Amendment allows, is equivalent to placing judicial function at the feet of the Executive. There is no due process there.”
If unable to defend, an innocent shall be a convict for an indefinite period of time with no provision of anticipatory bail and absence of “Sunset Clause” or “Periodic Review”. The Act allows police to remand the accused for over 30 days as opposed to 14 days under IPC. It allows the prosecution to file charge sheet in 180 days as against usual mandate of 90 days.
“Such changes have changed the whole maxim that an ‘individual, unless proven guilty, is innocent in the eyes of law’ as here the state is already seeing the individual as a criminal” says Mr. Anil Chowdhary, head of INSAF (Indian Social Action Forum) an umbrella platform of 700 NGO’s and people’s movements.
Expressing the struggle that the alleged convicts have to go through in order to free themselves of the charges, Mr. Chowdhary recalls Bhima Koregaon conflict case where many advocates, activists, professors were arrested in 22018 for their alleged involvement in “Naxal” activities. “They were labelled as ‘Top Urban Maoists’ by the state and a potential threat to peace. Civil rights advocates like Sudha Bhardwaj are in jail for the past one year. Since this Bill has become a draconian law now, chances of acquittal and justice being served shall reach new lows.”
Under anti-terror laws such as UAPA “the accused is deprived of their freedom for long years while the trial progresses slowly. There are many examples of terror accused being finally acquitted after having spent decades in prison as undertrials,” says Mr. Ambasta.
The recent example of this is the acquittal of three Kashmiris who, after 23 long years of incarceration, were proven not guilty in 1996 Samleti blast case. The prosecution failed to establish any link between them and the main accused. But if charged under present UAPA, the accused have to prove innocence in order to extricate themselves of the “terrorist” tag which calls for a long legal battle.
The NCRB data of years 2014-16 shows as high as 75% of cases ending in acquittal which were booked under UAPA. This implicitly reveals how sufferance for alleged convicts prolongs for many years and shall continue more after these amendments.
Vague Terms & ‘Criminalising Thought’
The amendment was made to weed out a class that the Centre calls “urban Naxals” or “urban Maoists” who are in possession of “Maoist Literature” in order to bolster their “zero tolerance” policy towards terrorism.
Reflecting upon the arbitrariness of such terms and their usage in vilifying people, a senior advocate of the Supreme Court and founder of Human Rights Law Network, Mr. Colin Gonsalves says, “Urban Naxals are basically people who read revolutionary literature. They propagate values for a change. What the state is trying to do is curb revolutionary ideas. Ideas are never terrorism; it is the people who try to crush ideas are the real terrorists. And of all terrorism, the most dangerous manifests in the form of ‘state’ terrorism.”
We have laws in our country like TADA and POTA that had provisions for arresting people when found with purported radical literature. For instance,” under TADA, farmers who were in possession of Kisan Sabha Literature were convicted as terrorists in Jehanabad, Bihar. One can find activists like Aruna Roy and Arundhati being targeted by state forces for their peaceful resistance as urban Naxals which is totally against an individual’s freedom,” says Ms. Krishnan.
More Powers to NIA in Investigation
The amended law empowers NIA to carry out investigations and raids and eventual arrests anywhere in the country without mandatory permission of the state government. It can seize/attach the property of suspects when the case is being probed.
“One also has to see the UAPA amendment along with the amendment to the NIA Act which gives this Central government agency wide-ranging powers to infringe on the areas under the jurisdiction of state police forces,” says Mr. Ambasta.
The amended NIA law gives powers to the agency to investigate crimes “relating to Indians and interests of India” where “interest” factor is just as much undefined as the definition of “terrorist” under the amended UAPA. This makes such laws prone to further misuse when exercised together in correlation, as collectively perceived by lawyers and activists of human rights.
Questioning the intent of the Centre in bringing such amendments Mr. Ambasta says, “The ordinary penal laws and procedure are fully capable of dealing with terror offences, which are also offences under the IPC. In such a situation, the government must explain why it has chosen to bring in these laws”.
Lawyer Gonsalves emphasises the path that shapes today’s ‘New India’ by expressing how “there exist two ways – fascism and democracy – in present times where it is the fascist path that is harming national security and peace that democracy harbingers. This Law does not display obsession with national security rather it is an obsession with crushing individuals who see that India should foster its democratic ideals.”