UAPA’s inherently flawed architecture and the role of courts
The recent judgment of the Delhi High Court (HC), granting bail to three activists in the 2020 Delhi riots case, and the death of Stan Swamy, have turned the spotlight back on India’s anti-terrorism statute, the Unlawful Activities (Prevention) Act (UAPA).
Commentators have pointed out how UAPA’s stringent requirements for the grant of bail, coupled with how criminal trials take years, even decades, to complete, mean that individuals spend long periods in jail without being found guilty of any crime. Indeed, a 2% conviction rate shows how, in an overwhelming number of UAPA cases, it is the process that is the punishment.
However, the Delhi HC’s judgment throws light on another important aspect of UAPA. The HC noted that many of the provisions of the law were broad and vaguely worded, leaving wide scope for even innocent persons to be brought within its ambit. Indeed, a perusal of UAPA shows how its terms — for example, “membership” of unlawful or terrorist organisations — can be stretched to a boundless degree, allowing the State to persecute individuals for being in the wrong place at the wrong time, possessing the wrong kind of literature, or meeting the wrong kind of people, without anything further.
How this plays out in practice is revealed by taking a look at one of the very few cases in which a UAPA case actually ended in a conviction. In 2017, a sessions court at Gadchiroli convicted GN Saibaba and five other individuals under various provisions of UAPA such as membership of terrorist organisations and facilitation of terrorist acts, and sentenced all but one of them to imprisonment for life. At the time of writing, the case is under appeal in the Nagpur HC, although it is yet to be heard on merits.
A perusal of the Gadchiroli case shows how the broad provisions of UAPA are not only weaponised to deny individuals bail at the time of trial, but also to subject them to years of incarceration through conviction, rare though such cases might be. In its bail judgment, the Delhi HC had noted that neither inferences nor hypotheticals were sufficient under UAPA, but individualised, particular, and factual allegations of specific acts were needed to be put forward by the prosecution to justify keeping an individual in jail.
In the Gadchiroli case, the convictions themselves do not rest primarily on individualised, particular, and factual allegations. For example, interviews in which Saibaba had discussed the history of the communist movement, his presence at meetings where government policy was criticised, and offers to mediate between the State and Maoists were all used to argue that he was a member of terrorist organisations.
For many of the accused, the sessions judge cited possession of Naxal literature and participation at meetings as dispositive evidence to prove offences under UAPA. Inferences were also drawn to connect the accused with “code names”, ostensibly used as aliases, without, however, any direct evidence demonstrating that the accused and the “code name” were one and the same person.
By its very design, UAPA encourages not the specific attribution of an illegal act (such as an act of violence or incitement to violence) to an individual, but broad and sweeping findings of criminality, based on inferences and suggestions. The terms of UAPA — such as “front” for a terrorist organisation (without defining what “front” means), “membership” of a terrorist organisation, “inviting” support for a terrorist organisation, or organising a “meeting” in support of a terrorist organisation — facilitate this form of adjudication, whether it is used at the time of denying bail, or at the time of determination of guilt and innocence.
It is for this reason that the Delhi HC bail order that insisted on giving the terms of UAPA a concrete and narrow meaning, and insisting that these provisions required specific and identifiable acts by accused persons, is of such importance. If more courts take this road, UAPA prosecutions such as the Gadchiroli case might reach a different outcome.