India Today - - UPFRONT - By Colin Gon­salves Colin Gon­salves is a des­ig­nated Se­nior Ad­vo­cate of the Supreme Court and founder of the Hu­man Rights Law Net­work

On Au­gust 2, Par­lia­ment passed the Un­law­ful Ac­tiv­i­ties (Pre­ven­tion) Amend­ment Bill, (UAPA) 2019. The amend­ment in­tro­duces, in an ear­lier in­car­na­tion of the law—the UAPA 1967—a small but ven­omous change, al­low­ing for the no­ti­fi­ca­tion of in­di­vid­u­als as ‘ter­ror­ists’; un­der the ear­lier UAPA, only or­gan­i­sa­tions, not in­di­vid­u­als, could be so no­ti­fied. Un­like gen­eral crim­i­nal law, the UAPA al­lows the State to keep a per­son in cus­tody for six months with­out a chargeshee­t, and the pro­vi­sions for bail make it near im­pos­si­ble for an ac­cused per­son to ac­tu­ally se­cure bail. UAPA pros­e­cu­tions in the coun­try are based on ten­u­ous ev­i­dence or none at all and of­ten re­sult in ac­quit­tals only af­ter 10 or so years of rot­ting in jail. A study of these cases shows that the pur­pose of pros­e­cu­tion is not con­vic­tion but to keep po­lit­i­cal op­po­nents, against whom there is no ev­i­dence, in jail for as long as pos­si­ble. Even though the trial may end in ac­quit­tal, from a polic­ing point of view, the pur­pose of the State is served by keep­ing in­tel­lec­tual ad­ver­saries in­car­cer­ated for in­def­i­nite pe­ri­ods, with­out the le­gal obli­ga­tion to show rea­son­able cause.

The amend­ments are un­con­sti­tu­tional for the sim­ple rea­son that they al­low the State to no­tify a per­son as a ter­ror­ist with­out a pro­ce­dure es­tab­lished by law. For a law to be con­sti­tu­tional, it must not be ar­bi­trary; ad­verse con­se­quences can only be im­posed on a per­son through a law­ful pro­ce­dure. Not to give a per­son no­tice of what s/he is be­ing charged with, and with­out giv­ing the per­son a chance to prove that s/he is not a ter­ror­ist, is patently un­con­sti­tu­tional, and will not stand up to ju­di­cial scru­tiny in In­dian courts. The fact that there is a post-stig­ma­tis­ing pro­ce­dure for be­ing taken off the list has been held in law to be no rem­edy at all.

What is cru­cial, how­ever, is the gov­ern­ment’s stated in­ten­tion of how this amend­ment is pro­posed to be used. This is where the ter­ror of the State comes in. It is

to be used, in the words of the gov­ern­ment, to clamp down on “pro­pa­ganda” and “ur­ban Maoists”, which gen­er­ally means pos­ses­sion of rev­o­lu­tion­ary lit­er­a­ture. If the pros­e­cu­tions of the past one year are any­thing to go by, those who made car­toons against gov­ern­ment of­fi­cials, jour­nal­ists like Kishore Chan­dra Wangkhem, who used swear words against his chief min­is­ter, and jour­nal­ists on whose com­put­ers the works of, say, Mao Tse-tung are found will all be pros­e­cuted as ter­ror­ists with­out ever throw­ing a bomb or fir­ing a gun.

It’s time for civil so­ci­ety to chal­lenge such pros­e­cu­tions in the High Courts and the Supreme Court to put an end to such ter­ror­ist ac­tiv­i­ties per­pe­trated by the State. Start­ing from the Con­sti­tu­tion Bench de­ci­sion in Kedar Nath Singh, 1962 to Bal­want Singh’s case from Pun­jab (1995), only an overt act at­tracts the charge of ter­ror­ism. The right to free (po­lit­i­cal) speech is prac­ti­cally ab­so­lute. In the Bal­want Singh case, a young man came out on the streets of Chandi­garh and made a speech ask­ing peo­ple to take up arms and fight for Khal­is­tan. He was pros­e­cuted and con­victed. When the case came up in the Supreme Court, the State was asked whether the ac­cused had, hav­ing made such a speech, taken any fur­ther steps to re­alise his pas­sion for Khal­is­tan. The an­swer was neg­a­tive and he was ac­quit­ted. In a sim­i­lar case from Sri­na­gar, a young man ex­horted the pub­lic to take up arms against the State and fight for Azad Kash­mir, but did noth­ing more; that case too ended in an ac­quit­tal.

The sweep­ing and in­dis­crim­i­nate use of crim­i­nal law against per­sons who com­mit no crimes ex­cept ar­tic­u­lat­ing a pas­sion­ate po­lit­i­cal op­po­si­tion to the State is a mod­ern form of state ter­ror­ism. Those in po­si­tions of power who speak against ter­ror­ism are of­ten them­selves ter­ror­ists. ■

The UAPA amend­ments are un­con­sti­tu­tional for the sim­ple rea­son that they al­low the State to no­tify a per­son as a ter­ror­ist with­out a pro­ce­dure es­tab­lished by law

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