India: Why the UAPA must go

India Today, September 7, 2018

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 an investigation 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 ’terrorism’ offences 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, Arun 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 only after he was acquitted in 10 of those cases and had got bail in the eleventh. Ferreira was lucky to be released within four-and a-half years, as most others accused under the UAPA spend far longer 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 extraordinary laws is not to punish the terrorist, the seditionist, the goonda; it is to keep the whistleblower, the dissenter, the inconvenient in jail for as long as the trial lasts.

Much of the credit for getting Arun Ferreira released 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. This is just as well because 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 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, bail is so stringent as to be almost unavailable, this is an affront to the ’dignity’ and the ’presumption of innocence’ that our Constitution entitles all of us to. 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. While doing so, the SC observed 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 wrongful 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. 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 is unconstitutional. It must go.

The author is a Delhi-based advocate