“The autocrat, the despot, has always wished, whenever he was bankrupt of any other argument, just to shut up those who did not agree with him.”- K.T Shah in Constituent Assembly
It is trying times for Indian Muslims, may be, it always has been. While in the last few weeks we were defending against the demonization of Tablighi Jamaat, this week we have the nightmare of UAPA. The UAPA has once again came into headlines, and as always, is being used to persecute the minorities and human rights activists in India. Jamia students Meeran Haider and Safoora Zargar, JNU student leader Umar Khalid, Kashmir based journalists Masrat Zahra, Peerzada Ashiq and Gowhar Geelani and the AAP leader Tahir Hussain are the latest to be hunt down by UAPA. The right wing has become explicitly Islamophobic in its actions as the country witnessed an anti-fascist movement recently, which was initially spurred by the protests against the discriminatory Citizenship Amendment Act in 2019.
Unlawful Activities (Prevention) Act, 1967 (UAPA) with its amendments has been a major tool of the government to criminalise dissent and target ideological opponents. While it surpasses judicial scrutiny and general procedure of arrest and bailment, the provisions which makes this a stringent and draconian law should be of concern. In this write up, I have tried to figure out the major problematic provisions of the UAPA, how it violates basic human rights and how it is used as a tool by the government to create a ‘regime of thought crimes’, as Ghautam Bhatia says.
UAPA was brought in 1967 as a legislation to put a few restrictions to Fundamental Rights under Article 19 relating to Freedom of Speech in view of National Security, Sovereignty and Integrity. In itself a stringent law, however, the law has been amended several times, making it more draconian and vesting in the state disproportionate and unfettered power to persecute opposing voices. The last amendment brought in 2019, by the NDA government being the most repressive.
UAPA subordinates international and constitutional laws
Like the repealed TADA and POTA , UAPA also grounds for huge human rights violations and subordinates the constitutional laws as well as stands against India’s obligation under International human rights law. Through these laws, under the provision for national security, the state is trying to onslaught the rights and liberties of people and to deal with criticism in a colonial strategy. During the pre-independence era, the British used the term ‘unlawful activities’ to criminalise the Indian National movement.
Although the state claims that the UAPA adheres to international effort to counter terrorism, the provisions completely violate the discourse of International human rights laws which protects against torture, cruel and inhuman treatment in custody. The definition of ‘terrorist act’ under UAPA is very ambiguous and differs from the definition by United Nations Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. Further, India being a party of the International Covenant On Civil and Political Rights(ICCPR) should adhere in providing fair trial as well as uphold the presumption of innocence of the accused. However, UAPA blatantly violates all these provisions and reverses the burden of proof on the accused, on ground of presumption of guilt. It further allows police a period of 180 days for investigation as well as to detain for 6 months, without any evidence, including police custody up to 30 days. However, International Law prescribes preventive detention only as a last resort.
Coming to the Rights under the Indian Constitution, the right to fairly criticize the government or hold protests against government policies comes under the ambit of Freedom of Speech and Expression, which is protected under Article 19 which in itself is a Fundamental Right. However, these special laws fall under the ‘reasonable restrictions.’ Under the myth of safeguarding sovereignty and integrity, these special laws, thus favour the state in placing ‘national security’ as they call it, over Rule of Law and allow the state propaganda to reign unchecked.
The vague definitions give state absolute discretionary powers
It is the vague definitions under the UAPA that primarily allows the state to unleash its political vendetta and delegitimize the critics of the government. The terms ‘Unlawful Activity’, ‘terrorist acts’, ‘disaffection against India’ etc are defined ambiguous and vague enough to place state in an arbitrary position to decide what falls under these and what doesn’t. Moreover, under its ambit could be included intentional and unintentional acts as well as acts not yet committed. Thus, the state decides who is a terrorist/ anti- national / urban- Naxal. In this way, as we see in the recent case of the Delhi pogrom and the current arrests, Muslims are persecuted even when they are the victims and evidences points out to Pro- Hindu groups.
Dissenting voices and activists are tortured and held in custody with almost no evidence against them or even without charges for long periods and then finally acquitted. That too, subject to torture and inhuman treatment. This is the scenario of all the anti-terror legislations in India including UAPA and NIA as well as its predecessors, TADA and POTA.
Moreover, there is neither a provision for anticipatory bail nor is bail easily available as there is presumption of guilt as opposed to presumption of innocence in normal procedure. Thus, burden of proof lies in the accused to prove that there is prima facie no offence , which becomes a difficult task owing to a wide ambit of the vague terms used in the Act.
Unfortunately, unlike TADA and POTA, UAPA doesn’t have a sunset provision which allows review in a specific time. Moreover, there is no provision holding officials accountable for malicious prosecution. Further on, the 2019 amendment took away the power of the state authority to grant permission or not for seizure of property, giving absolute power to the centre and thus misbalancing the federal structure.
A matter of concern is that, like every other anti-terror legislation, this affects the weakest of the society, in the Indian context, the minorities including Muslims. Possessing the least social capital and political space, the youth, scholars and institutions of the minorities are specifically targeted and suppressed using these laws. While anti- Muslim pogroms enjoy absolute impunity for adhering to achieve the majority nationalism, these laws are used to impeach and push critics into deeper vulnerability.
In the context of Hindu majoritarianism and islamophobia, it is pretty evident that the govt has used the UAPA to specifically hunt the dissenting voices of the Muslim community. The common factors about all those recently booked under UAPA are that they are young Muslim activists who are standing in staunch opposition against the repressive state.
From where I began, indeed it’s a tough time for Indian Muslims. In a country where ‘Desh Ki Gaddaron ko’ by a minister of State is retorted with ‘Goli maaron Salon Ko’, while “We won’t respond to violence with violence, we won’t respond to hatred with hatred, we will respond with love, If they thrash us with lathis, we keep holding the tricolour” by Umar Khalid is treated with UAPA, there are reasons for the Muslims to fear as it is identity that differentiates both. It’s a hard time for us focusing, from Kashmir to the unjust Babri Masjid Verdict, then to CAA and Delhi Pogrom, to targeting Tablighi Jamat to UAPA, we stand, still and strong, resisting. Indeed, Dissent is the highest form of patriotism. Viva Revolution!
