In the 2019 film Just Mercy, newbie lawyer Bryan Stevenson defends a man “Johny D” McMillian convicted for murder entirely on the basis of a coerced police testimony given by a convicted felon as part of a plea deal of sorts. By the time Johny D is acquitted, he had spent 6 years on death row and suffered the punishment of the process.
Thin evidence and punishment of the process are concepts also familiar to many booked under the Unlawful Activities Prevention Act, 1967. The UAPA, much like the sedition law, has a controversial record of overzealous use. Originally only meant to regulate “unlawful activities” of associations, it has slowly evolved to be an omnipotent tool for an insecure government threatened by anything it cannot micromanage.
In February, the NIA filed an FIR against 11 activists — all proponent of Dalit rights — under various sections of the UAPA and IPC in the Elgar Parishad case, handed over to it by the Pune police. The transfer took place after the Centre realized the newly-formed Maharashtra government could drop charges framed by the state police. Most activists, lawyers and academicians arrested in mid-2018 as part of two nationwide raids have been in custody or in-and-out of it since then. Seemingly selective in its sensitivity, the Supreme Court last week asked the Dalit rights activist and lawyer, Sudha Bhardwaj’s counsel why she was seeking bail on medical grounds when she has “such a good case on merits”.
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Meanwhile, the Delhi Police Special Cell has filed a massive 17,000 page chargesheet against 15 people under the Unlawful Activities Prevention Act and other provisions to investigate the alleged “larger conspiracy” behind the Delhi Riots. Disclosure statements (which are not admissible), call detail records and Whatsapp transcripts have been attached as proof. And earlier this month, United Against Hate (UAH) activist Umar Khalid was arrested as a “conspirator” after an 11 hour interrogation. On the whole, reports suggest, 18 people have been arrested under FIR 59/2020, which alleges the ‘conspiracy’.
Unlawful Activities Prevention Act functions under a veil of vague and expansive provisions. For instance, the definition for ‘unlawful activity’ includes, among other things, questioning or disrupting the sovereignty and integrity of India, and causing or intending to cause disaffection against India.
The proceedings under it can be held in camera “if the court so desires” and anticipatory bail is not recognized. For regular bail, the test for the court is to see whether the charges are prima facie true, based on the case diary and police report submitted. In most cases, the court considers these documents to be the truest version of events and the bail plea is denied. The Supreme Court in Zahoor Watali case effectively introduced non-application of mind as a principle of UAPA bail jurisprudence when it held that the court is “merely expected to record a finding on the basis of broad probabilities..” In any case, the court has discretion over custody during the investigation for up to 180 days.
Authoritarian governments are always on a lookout for new ways to use already draconian laws. The 2019 amendment, which allows the Centre to declare an individual as a ‘terrorist’ without trial, is a case in point.
Verbal assurances about avoiding misuse do not matter if those in power don’t want them to matter. Exaggerated perceptions of threat to sovereignty and integrity are, in reality, exaggerated apprehensions about the next election. These perceptions serve no cause, other than that of majoritarian politics.
The “conspiracy” narrative of Delhi Riots advanced by the police and a pliant media is in all probability a tacit adoption of reports by NGOs Group of Intellectuals and Academicians (GIA) and Call For Justice (CFJ). The GIA report has blamed “radicalisation” by “a far left-Urban Naxal network operating in universities in Delhi”, while the CFJ has said “anti-national and Islamist groups” conspired to attack the Hindu community. Both reports were submitted to the home ministry.
This editorial titled ‘One Law Fits All: On The Use of Unlawful Activities Prevention Act‘ has been written by Tushar Kohli and Khushi Singh and represent the collective view of the Editorial Team