India Today - - INSIDE - By Jawa­har Raja

On Au­gust 26, the Pune po­lice ar­rested five per­sons—Arun Fer­reira, Sudha Bharad­waj, Gau­tam Navlakha, Var­avara Rao and Ver­non Gon­salves—os­ten­si­bly in the course of a probe into in­ci­dents at a pub­lic meet­ing on De­cem­ber 31, 2017.

The com­plaint that the po­lice claimed to be act­ing on had named per­sons other than these five, and al­leged that those oth­ers were guilty of ‘cre­at­ing dishar­mony be­tween com­mu­ni­ties’. None of the five per­sons ar­rested was present at the said pub­lic meet­ing. None of them was named in the com­plaint. All of them are pub­lic per­sons with long his­to­ries of pub­licly hold­ing govern­ments to ac­count for their ac­tions.

Sig­nif­i­cantly, by the time of the ar­rests, the po­lice claimed that they were in­ves­ti­gat­ing not just the of­fence of ‘cre­at­ing dishar­mony be­tween com­mu­ni­ties’, but also those re­lated to ‘ter­ror­ism’ un­der the Un­law­ful Ac­tiv­i­ties Prevention Act, 1967 (UAPA). This meant that if the five ar­restees were taken into cus­tody, they faced the pos­si­bil­ity of long years in jail.

One of them, Fer­reira, had been picked up in 2007 by the Nag­pur po­lice, tor­tured, and then ar­rested un­der the UAPA. On that oc­ca­sion, they had pre­sented him to the me­dia, with a black hood over his head, as the “chief of com­mu­ni­ca­tions and pro­pa­ganda” of a Maoist party. Fer­reira spent the next four-and-a-half years in jail. Dur­ing that pe­riod, the po­lice im­pli­cated him in 11 other cases. He was fi­nally re­leased af­ter be­ing ac­quit­ted in 10 of those and get­ting bail in the 11th one. Fer­reira was lucky to be re­leased within four-anda-half years, as most oth­ers ac­cused un­der the UAPA spend far longer time in jail be­fore be­ing ac­quit­ted. And be­ing ac­quit­ted af­ter 10, 12 or 14 years in jail un­der the UAPA—like un­der the POTA and TADA be­fore it—is the norm, not the ex­cep­tion. For in­stance, of the 76,036 peo­ple ar­rested un­der TADA, only 400 were con­victed. The point of

these laws is not to pun­ish the ter­ror­ist but to keep the dis­senter in jail for as long as the trial lasts.

Much of the credit for get­ting Fer­reira out goes to ad­vo­cate Suren­dra Gadling. Af­ter his re­lease, Fer­reira com­pleted his de­gree in law and has since been de­fend­ing those who, like him, have been falsely ac­cused by the po­lice. When the po­lice came for him this time around, they had al­ready ar­rested Gadling.

The UAPA is un­con­sti­tu­tional for sev­eral rea­sons. Let me re­count a few. First, it casts such a wide net of of­fences that it makes all kinds of le­git­i­mate, con­sti­tu­tion­ally pro­tected ac­tiv­ity an of­fence: the po­lice can choose who they want to pros­e­cute, when and for what rea­son. Sec­ond, it al­lows for per­sons to be held in cus­tody for six months be­fore they get to know the ex­act case against them. In com­par­i­son, per­sons ac­cused of mur­der are en­ti­tled to bail if the po­lice do not re­veal the en­tirety of their case within three months.

Third, the bail is so strin­gent as to be al­most un­avail­able—this is an af­front to the dig­nity and the pre­sump­tion of in­no­cence up­held by our Con­sti­tu­tion. The bail pro­vi­sions con­tained in the UAPA were also in the Prevention of Money Laun­der­ing Act, 2002. Those pro­vi­sions were struck down by the Supreme Court in 2017. The SC said that the pro­vi­sions were “dras­tic” and “turned on its head the pre­sump­tion of in­no­cence, which is fun­da­men­tal to a per­son ac­cused of any of­fence”. Fourth, it re­verses the pre­sump­tion of in­no­cence and pre­sumes guilt—a guar­an­tee of false im­pris­on­ment and false con­vic­tions.

Fifth, it sup­presses the rights to Free­dom of Speech and Free­dom of As­so­ci­a­tion guar­an­teed by Ar­ti­cle 19 of the Con­sti­tu­tion. Un­der the UAPA, an or­gan­i­sa­tion is a ter­ror­ist or­gan­i­sa­tion be­cause the Cen­tre says so. As early as 1952, the SC (in State of Madras ver­sus

V. G. Row) struck down pro­vi­sions of a pre-Con­sti­tu­tion law—the Crim­i­nal Law Amend­ment Act, 1908—as a vi­o­la­tion of the Con­sti­tu­tion be­cause that law did not pro­vide for a full-fledged ‘ju­di­cial scru­tiny’ of the gov­ern­ment’s de­ci­sion to ban as­so­ci­a­tions of per­sons. The SC did this even though the act pro­vided that the gov­ern­ment’s de­ci­sion would be scru­ti­nised by an ad­vi­sory board. Full-fledged ju­di­cial scru­tiny of the gov­ern­ment’s de­ci­sion does not ex­ist in the UAPA.

The UAPA is an un­demo­cratic law that al­lows govern­ments to use the cover of ‘ter­ror­ism’ to sti­fle dis­sent. It must go.

Un­der the UAPA, a group is a ter­ror­ist or­gan­i­sa­tion be­cause the Cen­tre says so

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