UAPA: WHO IS THE REAL TERRORIST?
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