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Former Civil Servants Say UAPA’s ‘Flaws and Loopholes’ Allow Abuse, Call For Replacement

The Constitutional Conduct Group said that the "harsh amendments" that the anti-terror law has gone through in recent years has made it "draconian, repressive, and amenable to gross misuse".

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New Delhi: Over 100 former civil servants have endorsed an open letter by the Constitutional Conduct Group (CCG) which calls for the draconian Unlawful Activities (Prevention) Act (UAPA) to be amended, saying as it stands today, the law has “many flaws and loopholes making it amenable to large scale abuse and misuse by some politicians and overzealous policemen”.

In a statement, CCG said that the law violates constitutional guarantees and though it has been in existence in India’s statute books for over five decades, “the harsh amendments it has gone through in recent years has made it draconian, repressive, and amenable to gross misuse at the hands of ruling politicians and the police”.

The arrests of students Devangana Kalita and Natasha Narwal, the statement says, are examples of misuse. It also mentions the arrest of activists, lawyers and academics in the Elgar Parishad case as the “most shocking of the arrests under the UAPA”.

The statement notes that both UPA and NDA governments are responsible for the “extreme stringency” of the law, but also highlights the fact that since 2015, arrests under UAPA have shot up considerably.

CCG said that at a recent seminar, several retired Supreme Court judges had agreed that UAPA should not remain in the statute book in its present form. “We believe, like them, that such a draconian law has no place in a civilised society, particularly in a country claiming to be the world’s largest democracy,” the statement says.

Recollecting Prime Minister Narendra Modi’s statement at the G7 summit that “democracy and freedom” are part of the Indian ethos, the statement says if the prime minister is true to his word, “his government should heed the call of legal luminaries and the ordinary public, appreciate that the UAPA in its present form poses a serious threat to the freedom of our citizens and to democracy”. The Union government should consult legal experts and take into account the views of parliament, after which fresh legislation should replace UAPA. This new law, while addressing concerns regarding terrorism, should also safeguard the right to liberty of those exercising their fundamental right of free expression, as guaranteed by Article 19 of the constitution.

Among the signatories are Vappala Balachandran, A.S. Dulat, N.C. Saxena, Harsh Mander, Shivshankar Menon, Julio Ribeiro, Aruna Roy. The full list of signatories and the complete statement have been reproduced below.

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CCG OPEN LETTER TO CITIZENS OF INDIA

GOVERNMENT OF INDIA MUST REPLACE THE UAPA WITH LEGISLATION THAT FIGHTS TERRORISM WHILE SAFEGUARDING PERSONAL LIBERTIES   

August 16, 2021

Dear Citizens of India,

We are a group of retired officers of the All India and Central Services who have worked with the Central and State Governments in the course of our careers. As members of the Constitutional Conduct Group, we believe in impartiality, neutrality and commitment to the Indian Constitution and in safeguarding its values.

We are writing this in the matter of the Unlawful Activities (Prevention) Act (UAPA) that violates the Constitutional guarantees of citizens’ fundamental rights. Though this law has been in existence in India’s statute books for over five decades, the harsh amendments it has gone through in recent years has made it draconian, repressive, and amenable to gross misuse at the hands of ruling politicians and the police. Typical of such misuse are the cases of the three anti-CAA student protestors – Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha – who were arrested under UAPA without any valid grounds but were recently granted bail by the Delhi High Court in a detailed and unprecedented order.

On 9 March 2021, the Union Minister of State for Home, Shri G. Kishan Reddy, in a written reply to the Lok Sabha, admitted to the uncommon overuse of the UAPA. He confirmed that 1948 persons were arrested under the UAPA in 1226 cases across the country in 2019, which showed a 72% increase as compared to 2015.  The following figures will show the increase in cases and arrests between 2015 and 2019:

2015: 897 cases with 1128 arrests

2016: 922 cases with 999 arrests

2017: 901 cases with 1554 arrests

2018: 1182 cases with 1421 arrests

2019: 1226 cases with 1948 arrests

2019 saw the highest number of arrests in the country, particularly in the states of Uttar Pradesh (498) Manipur (386), Tamil Nadu (308), Jammu & Kashmir (227) and Jharkhand (202).

Despite the large number of arrests under the UAPA, the number of prosecutions and convictions shows a steep decline. The Government of India has admitted that a mere 2.2% of the cases registered between 2016 and 2019 resulted in conviction. We may conclude that the vast majority of the arrests under UAPA were made on specious grounds just to spread fear and muzzle dissent.

The UAPA has a chequered history. This legislation, first passed in 1967 on the recommendations of the National Integration Council to combat communalism, casteism, regionalism and linguistic chauvinism and to deal with associations engaged in secessionist activities, has changed colour over time and has now become a statute that has created new categories of offences and punishments.

The UAPA was not used extensively prior to the last decade as the Government of India had, meanwhile, enacted preventive detention laws such as the Maintenance of Internal Security Act (MISA-1971), the National Security Act (NSA-1980), the Terrorist And Disruptive Activities (Prevention) Act (TADA-1987)   and The Prevention of Terrorism Act (POTA-2002). But after the 9/11 terror attack on the USA, the UN Security Council passed a resolution asking national governments to enact countrywide anti-terror laws. The Government of India complied by passing the UAPA Amendment Act, 2004, carrying stringent provisions to suppress terrorism.

However, the Government of India seriously departed from the principles of criminal jurisprudence and from the provisions of the Constitution when the UAPA (Amendment) Act, 2008 was codified after the 26/11 Mumbai terror attack. This was done during the tenure of the United Progressive Alliance (UPA) government. Successive UPA and NDA Union governments which have been or are in power are responsible for the extreme stringency of the UAPA. In 2008, the UPA government made bail provisions much more stringent, increased the pre-charge detention period from 90 days to 180 days and, most damagingly, placed the burden of proof on the accused. In 2019, the NDA government further amended the UAPA to allow individuals, not merely organisations, to be designated terrorist. This amendment also gave unfettered and autocratic powers to the executive, in particular the National Investigation Agency (NIA), to enter any State and arrest any person. Though some voices of protest were raised when these amendments were made, most political parties supported the move. For the UPA members or any other party to act outraged now is, therefore, disingenuous.

The most shocking of the arrests under the UAPA have been of persons accused in the Bhima-Koregaon case. Several well regarded activists who have fought throughout their lives for the rights of tribal people and other oppressed groups have been arrested as terrorists and, even today, languish in jail. . The names of those arrested are well known – Sudha Bhardwaj, Rona Wilson, Gautam Navlakha, Anand Teltumbde, Arun Ferreira and Varavara Rao, to name a few.  And, of course, Father Stan Swamy – an 84 year old Jesuit priest – suffering from Parkinson’s and other ailments, who was not granted bail despite repeated requests and eventually died while in custody.

Former judge of the Patna High Court, Justice Anjana Prakash, is on record stating that 66% of the total number of persons booked under the UAPA were for conspiracy without any allegations of accompanying acts of violence. She also revealed that out of the total number of 386 cases being investigated by the NIA, 74 cases were for non-UAPA offences while 312 pertained to UAPA offences. She added that NIA has not been able to submit charge-sheets in 56% of these cases, meaning that the accused in these cases still remain in custody. These figures definitely point to an unhealthy practice of “governance by fear” which has no legitimate place in a democracy.

The law, as it stands today, has many flaws and loopholes making it amenable to large scale abuse and misuse by some politicians and overzealous policemen. Things have come to such a pass that at a recent webinar on “Democracy, Dissent and Draconian Laws”, organised by the Campaign for Judicial Accountability and Reforms, four former Supreme Court judges – Justices Aftab Alam, Madan B Lokur, Gopala Gowda and Deepak Gupta – came down heavily on UAPA and sedition laws and the way they are being misused to suppress democratic dissent and curb fundamental rights. Justices Gopala Gowda and Deepak Gupta were of the view that since Section 43D(5) of the UAPA takes away the power of courts to grant bail and order a judicial review, the law is unconstitutional. All the former Supreme Court judges agreed that the UAPA should not remain in the statute book in its present form. We believe, like them, that such a draconian law has no place in a civilised society, particularly in a country claiming to be the world’s largest democracy.

Participating in a session at the G-7 Summit in Cornwall, United Kingdom, held between 11 and 13 June 2021, Prime Minister Narendra Modi spoke of democracy and freedom being part of the Indian ethos. If the Prime Minister is true to his word, his government should heed the call of legal luminaries and the ordinary public, appreciate that the UAPA in its present form poses a serious threat to the freedom of our citizens and to democracy and, after consulting legal experts and taking into account the views of Parliament, enact fresh legislation to replace the UAPA which, while addressing concerns regarding terrorism, safeguards the right to liberty of those exercising their fundamental right of free expression as guaranteed by Article 19 of the Constitution of India.

SATYAMEVA JAYATE

(108 signatories, as below)

Anita Agnihotri IAS (Retd.) Former Secretary, Department of Social Justice Empowerment, GoI
Salahuddin Ahmad IAS (Retd.) Former Chief Secretary, Govt. of Rajasthan
S.P. Ambrose IAS (Retd.) Former Additional Secretary, Ministry of Shipping & Transport, GoI
Anand Arni RAS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
G. Balachandhran IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
Vappala Balachandran IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
Gopalan Balagopal IAS (Retd.) Former Special Secretary, Govt. of West Bengal
Chandrashekhar Balakrishnan IAS (Retd.) Former Secretary, Coal, GoI
Rana Banerji RAS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
T.K. Banerji IAS (Retd.) Former Member, Union Public Service Commission
Sharad Behar IAS (Retd.) Former Chief Secretary, Govt. of Madhya Pradesh
Aurobindo Behera IAS (Retd.) Former Member, Board of Revenue, Govt. of Odisha
K.V. Bhagirath IFS (Retd.) Former Secretary General, Indian Ocean Rim Association, Mauritius
Ravi Budhiraja IAS (Retd.) Former Chairman, Jawaharlal Nehru Port Trust, GoI
Sundar Burra IAS (Retd.) Former Secretary, Govt. of Maharashtra
R. Chandramohan IAS (Retd.) Former Principal Secretary, Transport and Urban Development, Govt. of NCT of Delhi
Rachel Chatterjee IAS (Retd.) Former Special Chief Secretary, Agriculture, Govt. of Andhra Pradesh
Kalyani Chaudhuri IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
Gurjit Singh Cheema IAS (Retd.) Former Financial Commissioner (Revenue), Govt. of Punjab
F.T.R. Colaso IPS (Retd.) Former Director General of Police, Govt. of  Karnataka & former Director General of Police, Govt. of Jammu & Kashmir
Anna Dani IAS (Retd.) Former Additional Chief Secretary, Govt. of Maharashtra
Vibha Puri Das IAS (Retd.) Former Secretary, Ministry of Tribal Affairs, GoI
P.R. Dasgupta IAS (Retd.) Former Chairman, Food Corporation of India, GoI
Pradeep K. Deb IAS (Retd.) Former Secretary, Deptt. Of Sports, GoI
Nitin Desai Former Chief Economic Adviser, Ministry of Finance, GoI
Keshav Desiraju IAS (Retd.) Former Health Secretary, GoI
M.G. Devasahayam IAS (Retd.) Former Secretary, Govt. of Haryana
Sushil Dubey IFS (Retd.) Former Ambassador to Sweden
A.S. Dulat IPS (Retd.) Former OSD on Kashmir, Prime Minister’s Office, GoI
K.P. Fabian IFS (Retd.) Former Ambassador to Italy
Prabhu Ghate IAS (Retd.) Former Addl. Director General, Department of Tourism, GoI
Arif Ghauri IRS (Retd.) Former Governance Adviser, DFID, Govt. of the United Kingdom (on deputation)
Gourisankar Ghosh IAS (Retd.) Former Mission Director, National Drinking Water Mission, GoI
Suresh K. Goel IFS (Retd.) Former Director General, Indian Council of Cultural Relations, GoI
S.K. Guha IAS (Retd.) Former Joint Secretary, Department of Women & Child Development, GoI
H.S. Gujral IFoS (Retd.) Former Principal Chief Conservator of Forests, Govt. of Punjab
Meena Gupta IAS (Retd.) Former Secretary, Ministry of Environment & Forests, GoI
Deepa Hari IRS (Resigned)
Siraj Hussain IAS (Retd.) Former Secretary, Department of Agriculture, GoI
Kamal Jaswal IAS (Retd.) Former Secretary, Department of Information Technology, GoI
Najeeb Jung IAS (Retd.) Former Lieutenant Governor, Delhi
Arun Kumar IAS (Retd.) Former Chairman, National Pharmaceutical Pricing Authority, GoI
Brijesh Kumar IAS (Retd.) Former Secretary, Department of Information Technology, GoI
Ish Kumar IPS (Retd.) Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission
Sudhir Kumar IAS (Retd.) Former Member, Central Administrative Tribunal
Subodh Lal IPoS (Resigned) Former Deputy Director General, Ministry of Communications, GoI
B.B. Mahajan IAS (Retd.) Former Secretary, Deptt. of Food, GoI
Harsh Mander IAS (Retd.) Govt. of Madhya Pradesh
Amitabh Mathur IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
Aditi Mehta IAS (Retd.) Former Additional Chief Secretary, Govt. of Rajasthan
Shivshankar Menon IFS (Retd.) Former Foreign Secretary and Former National Security Adviser
Malay Mishra IFS (Retd.) Former Ambassador to Hungary
Sunil Mitra IAS (Retd.) Former Secretary, Ministry of Finance, GoI
Noor Mohammad IAS (Retd.) Former Secretary, National Disaster Management Authority, Govt. of India
Avinash Mohananey IPS (Retd.) Former Director General of Police, Govt. of Sikkim
Satya Narayan Mohanty IAS (Retd.) Former Secretary General, National Human Rights Commission
Jugal Mohapatra IAS (Retd.) Former Secretary, Department of Rural Development, GoI
Deb Mukharji IFS (Retd.) Former High Commissioner to Bangladesh and former Ambassador to Nepal
Shiv Shankar Mukherjee IFS (Retd.) Former High Commissioner to the United Kingdom
Gautam Mukhopadhaya IFS (Retd.) Former Ambassador to Myanmar
Pranab S. Mukhopadhyay IAS (Retd.) Former Director, Institute of Port Management, GoI
Nagalsamy IA&AS (Retd.) Former Principal Accountant General, Tamil Nadu & Kerala
T.K.A. Nair IAS (Retd.) Former Adviser to Prime Minister of India
P.A. Nazareth IFS (Retd.) Former Ambassador to Egypt and Mexico
P. Joy Oommen IAS (Retd.) Former Chief Secretary, Govt. of Chhattisgarh
Amitabha Pande IAS (Retd.) Former Secretary, Inter-State Council, GoI
Niranjan Pant IA&AS (Retd.) Former Deputy Comptroller and Auditor General, GoI
Maxwell Pereira IPS (Retd.) Former Joint Commissioner of Police, Delhi
Alok Perti IAS (Retd.) Former Secretary, Ministry of Coal, GoI
R. Poornalingam IAS (Retd.) Former Secretary, Ministry of Textiles, GoI
Rajesh Prasad IFS (Retd.) Former Ambassador to the Netherlands
Sharda Prasad IAS (Retd.) Former Director General (Employment and Training), Ministry of Labour and Employment, GoI
Rajdeep Puri IRS (Resigned) Former Joint Commissioner of Income Tax, GoI
T.R. Raghunandan IAS (Retd.) Former Joint Secretary, Ministry of Panchayati Raj, GoI
N.K. Raghupathy IAS (Retd.) Former Chairman, Staff Selection Commission, GoI
V.P. Raja IAS (Retd.) Former Chairman, Maharashtra Electricity Regulatory Commission
C. Babu Rajeev IAS (Retd.) Former Secretary, GoI
K. Sujatha Rao IAS (Retd.) Former Health Secretary, GoI
M.Y. Rao IAS (Retd.)
Vijaya Latha Reddy IFS (Retd.) Former Deputy National Security Adviser, GoI
Julio Ribeiro IPS (Retd.) Former Adviser to Governor of Punjab & former Ambassador to Romania
Aruna Roy IAS (Resigned)
A.K. Samanta IPS (Retd.) Former Director General of Police (Intelligence), Govt. of West Bengal
Deepak Sanan IAS (Retd.) Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
G. Sankaran IC&CES (Retd.) Former President, Customs, Excise and Gold (Control) Appellate Tribunal
Shyam Saran IFS (Retd.) Former Foreign Secretary and Former Chairman, National Security Advisory Board
N.C. Saxena IAS (Retd.) Former Secretary, Planning Commission, GoI
A. Selvaraj IRS (Retd.) Former Chief Commissioner, Income Tax, Chennai, GoI
Aftab Seth IFS (Retd.) Former Ambassador to Japan
Ashok Kumar Sharma IFoS (Retd.) Former MD, State Forest Development Corporation, Govt. of Gujarat
Ashok Kumar Sharma IFS (Retd.) Former Ambassador to Finland and Estonia
Navrekha Sharma IFS (Retd.) Former Ambassador to Indonesia
Raju Sharma IAS (Retd.) Former Member, Board of Revenue, Govt. of Uttar Pradesh
K.S. Sidhu IAS (Retd.) Former Principal Secretary, Govt. of Maharashtra
Ajai Vikram Singh IAS (Retd.) Former Defence Secretary, GoI
Ramesh Inder Singh IAS (Retd.) Former Chief Secretary, Govt. of Punjab and former Chief Information Commissioner, Punjab
Satyavir Singh IRS (Retd.) Former Chief Commissioner of Income Tax, GoI
Sujatha Singh IFS (Retd.) Former Foreign Secretary, GoI
Tara Ajai Singh IAS (Retd.) Former Additional Chief Secretary, Govt. of Karnataka
Tirlochan Singh IAS (Retd.) Former Secretary, National Commission for Minorities, GoI
Narendra Sisodia IAS (Retd.) Former Secretary, Ministry of Finance, GoI
Anup Thakur IAS (Retd.) Former Member, National Consumer Disputes Redressal Commission
Thanksy Thekkekera IAS (Retd.) Former Additional Chief Secretary, Minorities Development, Govt. of Maharashtra
P.S.S. Thomas IAS (Retd.) Former Secretary General, National Human Rights Commission
Hindal Tyabji IAS (Retd.) Former Chief Secretary rank, Govt. of Jammu & Kashmir
Ashok Vajpeyi IAS (Retd.) Former Chairman, Lalit Kala Akademi
Ramani Venkatesan IAS (Retd.) Former Director General, YASHADA, Govt. of Maharashtra
Rudi Warjri IFS (Retd.) Former Ambassador to Colombia, Ecuador and Costa Rica