Unlawful Activities (Prevention) Act: India
This is a collection of articles archived for the excellence of their content.
Arrests, convictions under UAPA
As many as 96 people were arrested under the sedition law in 2019, though only two were convicted and 29 acquitted in the same period, the home ministry informed the Rajya Sabha, citing the latest NCRB data on Crime in India.
The same NCRB report states that 5,922 people were arrested under Unlawful Activities Prevention Act (UAPA) between 2016 and 2019, though the number of people convicted under the Act during this four-year period was just 132, the ministry said in reply to a different question in the Rajya Sabha.
Asked via a written query in the House if any steps were taken to strengthen the sedition law in view of the courts freeing those arrested under the “weak” law, junior home minister G Kishan Reddy replied that “amendments of laws is an ongoing process”.
In reply to another question on arrests under UAPA, Reddy said 1,948 people were held under the law in 2019, as per NCRB data.
Why UAPA cases fall flat in courts
Just about a third of all cases registered under the Unlawful Activities Prevention Act, 1967, or UAPA, lead to conviction. In most cases, the prosecution fails to prove charges or, as in the latest case against environment advocacy group Fridays for Future, the anti-terrorism law is “mistakenly” invoked.
There has been a rise in the use of UAPA over the past few years. Delhi Police have booked students from Jawaharlal Nehru University and Jamia Millia Islamia against the backdrop of the anti-Citizenship Amendment Act protests, Pinjra Tod activists after the Delhi riots and environment NGO Fridays for Future, which had been campaigning against the draft Environmental Impact Assessment notification, “inadvertently.” Those using VPN in Kashmir were booked under the law, as were those protesting in Assam against the Citizenship Amendment Act.
TOI looks at one state, Punjab, where many such cases have been registered under the Act but few have led to conviction. When TOI looked at 14 UAPA cases between August 2011 and March 2020, a pattern emerged — poor police investigation, weak prosecution and procedural lapses. While the trial drags on, those accused remain incarcerated for years. Bail provisions under the law are stringent and rights activists argue that the provision to designate an individual a terrorist without trial can be misused.
The suicide by Sangrur-based Sikh priest Lovepreet Singh (23) in Mohali on July 23, after he was questioned by the National Investigation Agency (NIA) in a two-year-old UAPA case registered at Amritsar, has again brought to the fore the debate on use and misuse of this law.
Cases registered under UAPA
According to the National Crime Records Bureau report, the conviction rate under UAPA cases was 33.3% in 2016 across the country, 14.5% in 2015 and 27.3% in 2014. The conviction rate in the UAPA cases is not mentioned for the years 2017 and 2018 in the reports. In 2018, Assam recorded the highest number of 308 cases, followed by Manipur (289), Jammu and Kashmir (245), Jharkhand (137) and Uttar Pradesh (107) .
In Punjab, as per the data compiled by Ludhiana-based advocate Jaspal Singh Manjhpur, 94 cases were registered under UAPA against 370 persons in the state between 2009 and June this year. In 47 cases, trial courts either acquitted or discharged the accused. The remaining 47 are either pending in trial courts or have been appealed against in appellate courts. Manjhpur’s data shows at least nine UAPA cases have been registered in Punjab till June this year and 12 in 2019.
Here, there are five judgments that highlight why the law has been contentious.
STATE VS MANJIT SINGH ALIAS JIT
On August 29, 2011, Jalandhar fast track court acquitted Manjit, seven others in a case registered against them under UAPA at Bhogpur police station in Jalandhar on September 28, 2009. “From all this evidence, the prosecution has failed to prove any link of recoveries made from accused or transactions of money with any terrorist act or organisation. Simple statement of DSP Rajinder Singh Sohal that he received secret information is not sufficient to hold the accused having committed or attempted to have committed any such offence,” said the trial court.
STATE VS DALJIT SINGH BITTU
FIR was registered against Daljit Singh Bittu and four others under UAPA at Sarabha Nagar police station in Ludhiana on August 27, 2009. On July 22, 2014, Ludhiana sessions court noticed that the main allegations against the accused were that of receiving aid from foreign countries for unlawful activities and helping families of those involved in terrorist activities. “A legal right is given to accused in the Constitution to defend himself by appointing lawyers of choice. Lawyer fee is not an offence unless it is proven lawyer is also involved in unlawful activities,” court noticed while acquitting the accused.
WHAT EXPERTS SAY?
Supreme Court senior advocate Colin Gonsalves told TOI: “There is a misconception UAPA is inefficient because of low conviction rate. Truth is NIA or police are not interested because they know the evidence they produce will result in acquittal. Police use the law to keep people in jail for five years or more, because bail provision is strict. Unfortunately, judges have not seen through this.” The denial of bail resulting in jail for five years or more is 90%, he said. No Punjab Police officer was ready to come on record. On the conviction rate, Uttar Pradesh former police chief Prakash Singh said , “This means either police investigation is shoddy or prosecution is weak or judiciary takes so much time that these cases fall flat.”
STATE VS KOBAD GANDHY
This case was registered against Kobad Gandhy on January 1, 2010, under UAPA and Indian Penal Code at Sadar Patiala police station. Gandhy was acquitted on October 18, 2016. On January 23, 2010, the prosecution said that a police team near the main gate of Punjabi University at Patiala had received secret information that “Kobad Gandhy, who is the head of the activities of international, national parties” along with others including Manoj alias Raj (Ruhposh), member of CPI Maoist central committee, were involved in unlawful activities against the country. It was alleged that he was delivering a speech in the university to motivate people to join CPI (Maoist). Gandhy was arrested on February 20, 2010. The court observed: “In this case, neither any recovery was affected at the instance of accused. Since the prosecution failed to prove that the accused was pertaining to a militant group or he was having any nexus with enemy countries, there is no evidence on record to show the accused was having any link with terrorist activities or militant group... Supreme Court... has held, that mere membership of a banned organisation cannot incriminate a person...”
STATE VS NARINDER PAL SINGH
The case was registered under UAPA and Arms Act on Sept 15, 2013, at Purana Shalla police station in Gurdaspur against Gurpreet Singh and 11 others. The trial court on March 7, 2020, acquitted the accused. Prosecution submitted that on September 15, 2012, cops had been tipped off that Gurpreet and his associates had formed a gang for committing terrorist acts in Punjab and it was controlled by Harminder Singh and Harmeet Singh in Pakistan. As per police, this gang was planning to assassinate Yog Raj Sharma, state president of Shiv Sena who lived in Pathankot. The trial court observed: “So many disclosures were recorded to show that he (Gurpreet Singh) had kept concealed and got recovered the ammunition from different parts of the country between November 7 and 9, 2014. It is highly impossible for anyone to move such distances cities in three days. It shows prosecution only wants to implicate him by hook or crook.” STATE VS MAKHAN SINGH ALIAS GILL
Ludhiana police had on November 5, 2009, registered a case against Hoshiarpur resident Makhan Singh alias Gill at Machhiwara police station under UAPA, Arms Act and Explosive Substances Act. Makhan was acquitted by the Ludhiana trial court on March 24, 2015. He was accused of retaining explosive materials unlawfully and raising funds for terrorist acts along with possessing an AK-47 rifle with 20 live cartridges. The court was told that Makhan had confessed before the police that he brought the arms and ammunition from Pakistan, hid them in Ganganagar, Rajasthan, and could get them recovered. “Whereas, thereafter no recovery was effected from Ganganagar... this can not be termed as a confessional statement,” observed the court. Sanction under UAPA was to be accorded within seven working days of receipt of evidence by the IO, but it was granted after nine days. “So, it is no sanction,” court said.
Difficult to obtain
People who are guilty of crimes should face imprisonment, while the innocent should not be put behind bars. But what happens to those who have to wait for the law to decide if they are innocent or guilty? There's a system to ensure that they stick around to face justice, without being jailed as though they are guilty. It’s called bail.
That system also ensures that the accused will not cause further trouble; hamper the trial they’re about to face; or threaten or influence the witnesses in the trial. The court has to see if all these provisions are met and then grant bail, with these conditions in place. Even when the court considers the severity of the alleged offence, it does not automatically bar the possibility of bail.
Unfortunately, things have not been so straightforward for quite some while now. Legislations, especially those dealing with organised crime and economic offences, have started including severe restrictions on granting bail. Today the harshest restrictions have been applied in legislations dealing with terrorism. With the enforcement of these stringent legislations, we’ve also seen a rise in the misuse of them. As noted by the Supreme Court in 1994, when courts were inclined to grant bail in cases registered under ordinary criminal law, the investigating officers would invoke the anti-terror legislations like TADA, even though it was not applicable at all, just to circumvent the authority of the court to grant bail.
The other development that has been taking place alongside this is that investigations and trials are taking a longer time to conclude. People who did not get bail can very well end up spending years without trial. In the public imagination and narrative, arrest and time spent in jail, even without a trial, have become equivalent to conviction, and bail, at times, equivalent to acquittal. Though anyone with more than a passing acquaintance of the criminal law knows that this is far from the truth, this idea of linking pre-trial bail with a likelihood of guilt or innocence has pervaded into the legislation and also judicial thinking. Many legislations now provide that bail should not be granted unless the court has good reasons to think that the accused is innocent.
What seems to be a minor change, one that a layperson may even think reasonable, but makes a world of difference when applied as a legal standard, is when a person accused of a crime applies to a court seeking bail. The court should not only see whether the accused will stick around for the trial and meet the other criteria mentioned above, but also weigh the case of the prosecution and the accused against each other, before either side has presented the full evidence in support of their stories, to see if the accused has a good chance of being acquitted eventually.
The Unlawful Activities Prevention Act, 1967, however, has gone one step further and provided that if the court has reason to believe that if the accusation against the prosecution is prima facie true, bail should then not be granted. The standard here is not in weighing the stories of the prosecution and defence, sans evidence, against each other, but only in considering the prosecution version, and seeing if it sounds true. In the case of Zahoor Ahmed Shah Watali, the Supreme Court in 2019 cancelled the bail of the Kashmiri businessman, accused in a terror funding case, saying NIA has collected ample evidence to show linkages between the Hurriyat leaders of Jammu and Kashmir and terror organisations as also their activities to wage war against India. The court said it will not go deeper into the quality of supporting material relied upon by the prosecution, but only form an opinion on broad probabilities. This made bail in UAPA cases even a more difficult proposition, because on broad probabilities, anything is possible.
In light of this, the bail applications of those accused in the Bhima Koregaon cases were considered. As a result, apart from those who obtained bail for a short period on medical grounds or for some grave personal exigency, the persons accused of offences under UAPA have not got bail.
There is no saying how long the trial in the Bhima Koregaon or other cases under UAPA will go on. The outcome of this whole situation, however, is that persons are jailed only on the basis of an accusation, which is tested only to see if it is a coherent narrative, and not whether it is supported and backed meaningfully by evidence. This will ensure that they end up being in jail for years together, before they stand a chance to prove their innocence. And in that time, some will lose their livelihoods, some will lose their loved ones, some will see their health and family lives deteriorate, and all will lose years from their public lives. The Delhi High Court June 15 order in the case of Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, who were accused in connection with the Delhi riots in 2020, works out a way within this stringent and complex legal framework to grant bail. The court, upon going through the chargesheet, notes that there is “complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence”, which amount to a terrorist act or raising funds, conspiracy or act preparatory for a terrorist act, punishable under UAPA. Having found that UAPA does not apply in the case, the court then reverted back to the original principles for bail, that is, it relied upon the basic standard under normal criminal law, which we discussed right at the beginning of this article. This decision neither negates the stringent legislation nor changes the standard for bail in UAPA cases in any way, but rather, as the Supreme Court did in 1994, decries the misuse of UAPA. What really comes out of this judgement remains to be seen.
The writer is an advocate on record at the Supreme Court of India
‘Civil disturbance can’t be UAPA offence’: HC/ 2021
Stating that someone accused of civil disturbance can’t be booked under the Unlawful Activities (Prevention) Act unless it qualifies to be an act of terror, the Gauhati high court has upheld the bail granted by a special NIA court to jailed activist-turned-politician Akhil Gogoi. The special court had given bail to Gogoi, who was booked under the stringent law for his anti-CAA speeches in 2019 on October 1 last year.
“The dominant intention of the wrongdoer must be to commit a ‘terrorist act’ coming within the ambit of Section 15(1) of the Act… What, therefore, follows is that unlawful act of any other nature, including acts of arson and violence aimed at creating civil disturbance and law and order problems, which may be punishable under the ordinary law, would not come within the purview of Section 15(1) of the Act of 1976 unless it is committed with the requisite intention,” the bench said.
The lower court had granted Gogoi bail after observing that the allegations brought by the agency could not, prima facie, said to be a terrorist act perpetrated with the intention of threatening the unity, integrity and sovereignty of India or to strike terror among the people.
No error in granting bail to Akhil: HC
The NIA subsequently challenged the bail order in the high court.
While even spoken words, including provocative speeches, can be construed as unlawful activity under Section 2(1) (0) of the1967 legislation, “the same must be done with the intention to cause death of, or injuries to any person or persons, or to cause loss of or damage to or destruction of any property aimed at disturbing the unity, integrity, security and sovereignty of the country”, the HC bench said.
The basic allegations levelled by the NIA in its chargesheet are that Gogoi made provocative speeches, inciting the public to resort to violence and draw up a plan to set fire to houses belonging to people from the Bengali community living in the Amrawati Colony at Chabua in Dibrugarh district.
“We are of the considered opinion that the views expressed by the learned Special Court, NIA, leading to granting of bail to the respondent is a possible view in the facts and circumstances of the case. Therefore, we do not find any error in the approach of the learned court below while exercising discretionary jurisdiction and granting bail to the respondent,” the bench said.
Gogoi, who is contesting the Sivasagar assembly seat this election, was taken into preventive custody by police on December 12, 2019 as protests against the Citizenship (Amendment) Bill raged in the state, resulting in violence at several places. The case was transferred to the NIA two days later. He has been in judicial custody since.
The dominant intention of the wrongdoer must be to commit a ‘terrorist act’… What, therefore, follows is that unlawful act of any other nature, including acts of arson and violence aimed at creating civil disturbance and law & order problems, which may be punishable under the ordinary law, would not come within the purview of Section 15(1) of the Act unless committed with the requisite intention —Gauhati HC The basic allegations levelled by the NIA are that Akhil Gogoi made provocative speeches, inciting the public to resort to violence and draw up a plan to set fire to houses belonging to people from the Bengali community.
Mere position of radical literature not an offence
New Delhi : A Delhi court has discharged a 26-year-old Kashmiri youth booked under the Unlawful Activities (Prevention) Act (UAPA), observing that mere possession of jihadi literature having a particular religious philosophy would not amount to an offence unless there was material to show execution of such philosophy to commit terrorist acts.
But the court ordered framing of charges against nine others in the case that pertained to online propagation of Islamic State (IS) ideology.
Discharging Muzamil Hassan Bhat, principal district and sessions judge Dharmesh Sharma said the prosecution could not present any “iota ofevidence” to prima facie establish that the accused had been amember of any terrorist organisation, including the IS.
Nine others booked in the case by the NIA — Mushab Anwar, Rhees Rasheed, Mundadiguttu Sadanananda Marla Deepthi, Mohammad Waqar Lone, Mizha Siddeeque, Shifa Haris, Madesh Shanker, Ammar Abdul Rahiman and Obid Hamid Matta — will facecharges under UAPA and the IPC. The accused are from Kerala, Karnataka and Kashmir.
The court said the accused had been operating social media platforms as a “toolkit” for spreading the IS ideology to “allure, impress and radicalise” others and had been “furthering the provocative, violent and divisive ideology” of the terrorist group.
The accused, highly radicalised themselves, were in connection with IS operatives and were “purposely, actively disseminating information about its philosophy and ideology”, it further said. They were sharing “highly inflammatory, anti-national and secessionist propaganda” on social media platforms, the court noted.
SC, Delhi HC/ both 2021
Two judgements that offer hope
- The Supreme Court decision in Union of India v K A Najeeb in Feb 2021 permits release of accused on bail in case there is an inordinate delay in starting or completion of trial. Although this power is limited to the SC and High Courts, the judgment certainly has the effect of placing limitations on the period of pre-trial incarceration under UAPA, which earlier could be extended indefinitely
- The Delhi high court judgment in the case of Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal bail plea in June 2021 also materially reins in the vague and overbroad definition of “terrorist activity” under Section 15, limiting it only to cases pertaining to the ‘defence of India’, and not those relating to general public disorder. However, the SC has said that the HC judgment cannot be used as precedent.
Seizures under UAPA
Currency seized or recovered under the Unlawful Activities (Prevention) Act, 2014
Amendment to UAPA
Cong finally votes with govt, amended terror law passed
Parliament passed the amended UAPA bill, which provides for proscribing individuals involved in terror crimes as terrorists, after a sharp debate which saw home minister Amit Shah clash with opposition leaders P Chidambaram and Digvijaya Singh.
The Unlawful Activities (Prevention) Amendment bill, 2019, was passed with 147 ‘ayes’ against 42 ‘noes’, with Congress finally voting in favour of the bill notwithstanding its opposition to what it said was a vague provision for proscribing an individual whom the Centre holds to be a terrorist. Other parties who voted with the government included TRS, BJD, TDP and AIADMK.
The parties that voted against the bill included Trinamool, CPM, CPI, DMK, RJD, SP, NCP, PDP and IUML. Their reservations primarily pertained to blacklisting of individual terror suspects and the “anti-federal” provision seeking to empower the National Investigation Agency DG to seize properties linked to terrorism without prior consent of the state police chief. They also cited the low conviction rate in UAPA cases.
Congress voted for the bill after supporting a demand to send the bill to the select committee, which was rejected by the House by 104 to 85 votes.
Shah slammed the “low conviction rate” argument and said it was based on the combined investigation and prosecution record of state governments and the NIA. Of the 278 cases registered by the NIA under UAPA, chargesheets were filed in 204. Of the 54 cases where courts passed judgment, 48 resulted in convictions — a conviction rate of 91%, which Shah said was “the best in the world”.
Earlier, Chidambaram said Congress had amended the UAPA on six occasions and “nobody can point a finger at Congress and say we were soft on terror”. Pointing to the “ambiguous” provision of branding a person as terrorist just because the Centre believes him to be a terrorist, Chidambaram wondered whether it would be used against “eminent” persons accused in the Koregaon-Bhima violence including activists Gautam Navlakha, Shoma Sen and Varavara Rao etc.
Shah assured that designation of an individual as terrorist would be subject to a four-stage scrutiny, even as Chidambaram termed the provision “unconstitutional” and “certain to be struck down by the courts” as it went against personal liberties. The home minister said outfits often circumvented a UAPA ban by rebranding.
Till 2021 June
Three college students – Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha – who spent more than a year in jail after being accused by police of conspiring to create unrest, were granted bail last week after the Delhi high court flagged the "wanton use" of anti-terror law to suppress dissent.
Kalita and Narwal, both students of the prestigious Jawaharlal Nehru University in New Delhi, are members of Pinjra Tod, a women's rights collective that was active in the protest against the citizenship amendment act.
They were arrested on May 23, 2020 and charged with rioting, attempt to murder, criminal conspiracy and using criminal force to deter public servant from discharge of duty and the anti-terror law UAPA. Tanha, a student of Delhi’s Jamia Millia Islamia, was arrested on May 19 last year, accused of being a conspirator and instigator of the Delhi riots. He too was charged under UAPA.
While granting bail, the high court observed: "... in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril."
About the purpose of the terror law it said: "... the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less."
But nothing in the case is surprising – neither the accused spending a year in jail nor the harsh observations of the court. In fact, even acquittal of the three students ultimately is unlikely to be anything extraordinary. That's because less than 2% of those arrested under UAPA across the country in five years till 2019 (the latest for which data is available) have been convicted. Yet, despite the low conviction rate, 2019 saw a 72% jump in arrests under the UAPA over 2015.
The stringent law
Under the UAPA, getting bail is rare and the investigating agency has up to 180 days to file a charge sheet. Under section 43D (5) of the act, an accused can be denied bail if there are reasonable grounds to believe the accusations are prima facie true. The UAPA, enacted in 1967, was first amended in 2004, then 2008 and 2013 and finally in 2019. The 2004 amendment was to ban organisations for terrorist activities. In 2008, the then UPA government, in the aftermath of the Mumbai terror attacks, converted it into India’s chief anti-terror law and introduced measures like detention without trial for 180 days.
In 2019, Lok Sabha passed an amendment to UAPA aimed at additioally enabling the designation of individuals as “terrorists”. It also empowered the director general of the National Investigation Agency (NIA), in cases being investigated by the agency, to order attachment of properties believed to be proceeds of terrorist activities or intended for such use, irrespective of where the property is situated in India.
Earlier, this power was left solely with the DG of the respective state police investigating terrorist activities. Union home minister Amit Shah while debating the amendment had stated that these changes are necessary keeping in mind the difficulty and delay faced in attaching such properties, while conveniently ignoring the federal structure of the nation. With the NIA being tasked with investigating terror cases, the role of state DGs is being made redundant.
The process is the punishment
The stringent provisions essentially invert the general principle of innocent until proven guilty. It was drafted that way keeping in mind the nature and threat of terrorism. But the stringent provisions for bail have also meant that authorities often invoke UAPA against dissidents and activists who were granted bail in other charges filed under the Indian Penal Code.
Legal experts say that the very nomenclature of the act makes it prone to be misused. For instance, ‘unlawful activities’ covers a wide gamut of crimes that may not necessarily be terrorist acts. That’s not the only vague term the act uses — “disaffection against India” is classified as an unlawful activity but there’s no definition in UAPA of what disaffection means.
Even membership of unlawful organisations is deemed an unlawful activity — never mind that UAPA does not define what membership means, which could range from possession of literature like books and pamphlets of the organisation in question to expressing sympathy for the organisation’s members.
Interestingly, in 2011, the Supreme Court had ruled in a case where a person had been convicted under the defunct Terrorist and Disruptive Activities (Prevention) Act (TADA) that “mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence”.
The vague provisions of the law coupled with poor police investigation, weak prosecution and procedural lapses means trial drags on and those accused remain incarcerated for years.
Supreme Court senior advocate Colin Gonsalves had earlier told TOI: “There is a misconception UAPA is inefficient because of low conviction rate. Truth is the NIA or police are not interested because they know the evidence they produce will result in acquittal. Police use the law to keep people in jail for five years or more, because bail provision is strict. Unfortunately, judges have not seen through this." The denial of bail resulting in jail for five years or more is 90%, he said.
Has anyone challenged it?
Yes. There are two petitions filed against UAPA which argue that designating a person as a terrorist before he/she can be found guilty by a court of law is a violation of an individual’s right to equality (Article 14), free speech (Article 19) and life (Article 21) of the Constitution.
Moreover, the petitions argue, since UAPA does not specify the detailed grounds on which a person may be categorised as a terrorist, it is ‘manifestly arbitrary’ — which basically means that a law made without an adequate governing principle is not only excessive but also disproportionate in nature.
The petitions also describe UAPA as against the right to dissent, a fundamental fulcrum of any functioning democracy as it’s an integral part of the right to freedom of speech. This in fact was even highlighted by the Delhi high court when it granted bail to the three student activists, saying that the applicability of UAPA on the trio demonstrated the government’s “anxiety to suppress dissent”.
Still a long way to go
The Supreme Court made it clear that the Delhi HC’s order on granting bail in this particular UAPA case is not to become a precedent for other such cases — one in particular being the Bhima Koregaon violence case involving the Elgar Parishad.
The case pertains to the arrest of five activists — Varavara Rao, Sudha Bharadwaj, Gautam Navlakha, Vernon Gonzalves and Arun Ferreira — who have been incarcerated since 2018 for their alleged role in the violence that occurred on January 1, 2018, the day of the bicentenary celebrations of the Bhima Koregaon battle that was fought between the Dalits who comprised the army of the East India Company and the Peshwas, who lost the battle. The violent clashes between the Dalits and the Marathas in 2018 claimed one life and left several injured.