It's Time for the Government To Redeem Itself and Repeal the UAPA

The UAPA over the years has degenerated into a lethal weapon to quell dissent, and has been used by successive governments to legitimise sinister motives.

Whether the Unlawful Activities (Prevention) Act (UAPA) fits in with India’s constitutional framework, the international covenants it has signed, its adversarial system of trial, and whether the Supreme Court correctly decided the legality of the law’s bail pre-conditions – which are so irksome and a source of abuse – are questions that need urgent answers. Though the statute was brought in with an objective contrary to what we see today, the UAPA over the years has degenerated into a lethal weapon to quell dissent, and has been used by successive governments to legitimise sinister motives under the clichéd “procedure established by law”.

In 1961, then prime minister Jawaharlal Nehru convened a National Integration Conference to find ways to combat communalism, casteism, regionalism, linguistic chauvinism etc. A National Integration Council was set up to recommend on matters of national integration. Thereafter, the Unlawful Activities (Prevention) Bill was introduced in 1966. It was purported to deal with associations engaged in secessionist activities directed against the integrity and sovereignty of the nation. It provided for the setting up a high-powered tribunal with a sitting or retired high court judge as the chairman and two others who qualified to be high court judges. It was to identify and then outlaw such associations which were indulging in unlawful activities as stated above. Any person who continued unlawful activities and associated himself with the outlawed association was to be tried by the tribunal in terms of Code of Criminal Procedure (CrPC) and could be punished with a sentence of three, seven or ten years. Thus, in nature and substance, the initial law was more akin to a Commissions of Inquiry as a fact-finding body.

However, this Bill lapsed and a fresh Bill was introduced, which was finally passed in 1967, retaining the same provisions while slightly modifying the objects. It was almost never used because the government had in the meanwhile been promulgating some other preventive laws or the other like MISA 197, NSA 1980, TADA 1987, MCOCA 1999, POTA 2002 etc. As we all know, in 2001, after the 9/11 terrorist act took place in the US, it changed not just the world order but also how we, as human beings, looked at each other. Every Asian and Muslim became a potential suspect. The UN took notice of the attack on the US, the Security Council spearheaded and passed Resolution No. 1373/2001, pertaining to threats to international peace and security caused by terrorist acts. Chapter VII of the Charter of the UN, expressing its concern at the increase of acts of terrorism, decided that all States should prevent and suppress the financing of terrorist acts; criminalise the wilful provision or collection, by any means, and directly or indirectly freeze the accounts and prohibit any financial assistance to terrorists. It called upon a better exchange of information between countries and to conform to the protocols of earlier resolutions.

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In answer, in 2004, India passed the UAPA Amendment Act, 2004. It interestedly noted that provisions of POTA were being misused in the past two years. However, since the government was firm in its resolve to combat terrorism and in view of commitments given in the UN in terms of Resolution 1373, it considered it necessary to criminalise various facets of terrorism by appropriate amendments in the UAPA. It then substituted the earlier miscellaneous Chapter IV with ‘Punishment for terrorist activities’, and added Chapter V and VI to include forfeiture of proceeds of terrorism and terrorist organisations respectively. Thus, terrorist acts, its funding, its seizure and and freeze became an important ingredients of the Act. It also provided for harsher punishment which could go up to death or life imprisonment. In effect, it merged the definitions of ‘terrorist’ contained in TADA, which had lapsed in 1995, and POTA, which was being repealed for reasons of misuse.

Because of these amendments UAPA, moved away from being a preventive law and inched towards substantive law creating new offences and punishments. However, it did not depart from the principles of criminal jurisprudence nor the Constitutional provisions. Interestingly this despite the fact that TADA and POTA had not adhered to such principles.

However, one did not have to wait for long. In 2008, the UAPA Amendment Act, 2008 was passed. It inserted a preamble citing the UN Resolution including Resolution No. 1373/2001 which was the reason for including terrorist activities in our domestic law mentioned above. However, it mentioned a number of other resolutions. On examination, I found that almost all the resolutions pertained to the Middle East. Resolution No. 1267/199 related to Afghanistan and Taliban, 1333/2000 also to Afghanistan, 1363/2001 related to sanctions on Afghanistan, 1390 sanctions against Osama bin Laden, 1455/2003 sanctions against Taliban, Al-Qaeda, Osama bin Laden, 1526/2004 further reaffirms the earlier resolutions. 1566 is also about reaffirming the earlier resolutions to counter-terrorism and to implement resolution 1373. 1617/2005 states to take measures previous against Al-Qaeda, Laden, Taliban 1735/2006 review of ISI, Al-Qaeda and associated individual groups, 1822/2008 for extending monitoring team overseeing sanctions against Laden, Al-Qaeda and the Taliban Taliban and maintenance of the consolidated list of persons to whom sanctions were to apply. And all states were to apply a combination of sanctions against those mentioned in 1267/1333/1390.

On the basis of these resolutions, our procedural law was radically changed. Firstly, vide Section 43E, the court was to presume – unless the contrary was shown – that the accused had committed the offence. In criminal matters, the law is that the prosecution has to prove its case beyond all reasonable doubt, whereas the burden or onus is much lighter on the defence. The defence has only to create a reasonable doubt in the mind of the court. Nothing more. Here, by saying unless the contrary is shown, it means that the defence is pitted against the prosecution and an equal burden is cast upon him.

Thus Article 20 (3) of constitution of India states, “No person accused of an offence shall be compelled to be a witness against himself”, which effectively means that an accused has a right to remain silent. Article 11 of UDHR says that “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial, at which he has had all the guarantees necessary for his defence”. Article 14(2) of ICCPR is on similar lines. Our Evidence Act also casts a burden on the prosecution to prove its case.

This provision has been transported from TADA and POTA. The legitimate questions under the circumstances are,

i) If once the prosecution has successively proved its case, will the accused have no right to a defence?

ii) If the prosecution proves its case, will the trial end at that stage with a sure shot conviction on the mandate of presumption since the word is ‘shall’ and not ‘may’. Also, will the defence of an accused be rendered nugatory?

Besides, how could the resolutions be read in our domestic law, disregarding our constitution, UDHR and ICCPR is something I am not able to comprehend when the protocol that the basic principles of protection of human rights in international covenants have to find their way in domestic laws is missing.

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Secondly, Section 43D(5) imposes twin restriction on bail, one of which is “if the Courts… is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”.

As I mentioned earlier, vide amendments in 2004 there had been any collateral damage to our criminal justice system where UAPA was concerned. Through TADA and POTA, our system had earlier taken a beating. Unfortunately, in 2008, by citing UN Resolutions which had absolutely no relevance to our procedural system, the restrictions made a lateral entry. I wonder if any debate happened on this issue before the amendments. If at all anyone bothered, he must have been comforted by the TADA judgment of the constitutional bench in Kartar Singh Vs State of Punjab which was decided in 1994.

It would do us some good to look at it. In the said case, an argument had been advanced that the twin conditions infringed the underlying principles contained in Articles 21 and 14, and was diametrically contrary to the salutary principle of criminal justice that every person is presumed innocent till he is proved to be guilty. Unfortunately, the Supreme Court merely answered that they were not violative of Articles 21 or 14, but left the principle of presumption of innocence unanswered.

However, I feel gratified that the Supreme Court has somewhat redeemed itself by setting aside the twin conditions in PMLA in Nikesh Tarachand Shah Vs Union of India wherein it noted

“we must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crimes. Absent any such compelling state interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a state interest in tackling crimes of an extremely heinous nature.”

To the latter part, I will come later, but to appreciate further the destruction of our domestic criminal justice delivery system we may to look to our scheme of procedural law and see how blatantly the amendments have affected the bulwark of separation of powers and the carefully designed hierarchy of Courts.

As we know, our constitution mandates a complete separation of powers, and defines a robust structure for the judiciary by providing for a Supreme Court, and high courts in each state, and a Subordinate Judiciary controlled by the respective high courts.

We also know that the CrPC regulates our trial practices. Before Independence, naturally the Code of 1868 did not conceive of separation of powers and the powers of executive and judiciary were jointly exercised. But in 1974, when the newer version of the Code came in, on recommendations of the Law Commission it was fine tuned to be in line with our Constitutional provisions. Successive Law Commissions, comprising of competent, erudite, experienced and refined persons, conducted an in-depth study of scheme of the Code – each provision and each word – and held widespread consultations with the state governments, the various Bar Associations and judges after which made appropriate and extensive recommendations.

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Just to touch on the issue of bail, Section 496 of the old Code defined the powers of the court to grant bail in non-bailable offences when an accused is brought before it. Notably, Section 497 stated that the accused was not to be released on bail in a non-bailable if there appeared reasonable ground for believing that he was guilty of an offence punishable with death or life.

It did not specify as to which court such restrictions would apply. Notably, the 41st Law Commission Report, while recommending changes in the Code in respect to bail, recorded the following broad principles:

1. Bail is a matter of right in bailable offences
2. Bail is a matter of discretion in non-bailable offences
3. Magistrate was not to grant bail if the offence is punishable with death or life imprisonment
4. Sessions courts and high courts have wider discretion

Keeping these principles in mind Sections 437/439 were drafted. Thus, presently a magistrate is not permitted to grant bail to an accused in a non bailable offences except on humane conditions but no such restriction is imposed upon the superior courts i.e. the sessions judge and high courts acting under the provisions of 439. By doing so, it achieved two-fold objectives. First, it gave wider discretionary powers to superior courts. Second, it maintained the basic structure of the hierarchy of the courts in line with the constitutional mandate.

In this background, when we examine Section 43D of the UAPA, we find that it places restrictions on bail upon the ‘court’ without specifying which court. Thus, it is believed that it applies uniformly to all courts, irrespective of its position in the hierarchy. Thus today, ironically the Supreme Court, high courts and designated courts have all the same amount of discretion and a magistrate or designated Court could well be interchangeable with a high court and the Supreme Court. The deprivation of wider discretion to higher courts by the legislature and executive was unfortunately accepted by the judiciary on the grounds that the legislature had the power to legislate in national interest.

My quarrel is not with the power of the legislature or national interest, but with the encroachment upon the powers of the judiciary, the exhibition of trust deficit that judges were not worthy of exercising their discretion correctly. I would think by grabbing the powers of the judiciary, the legislature seeks to project it as the sole repository of national interest – which it is not.

Alas, this would not have happened had the constitutional bench noticed the encroachment in Kartar Singh case instead of condoning it. The constitutional bench should have rightfully concerned itself with the possibility of unchecked executive misuse. By not doing so, it has left people, trapped in a web of lies, to their own fates. By doing so, the judiciary shrugged off its prime responsibility of acting as a check to the excesses of the government and left the common man to suffer the arbitrariness of the executive.

Don’t we know that countless people have been shamelessly put behind bars under UAPA for giving innocuous public statements and kept behind the bars for as long as 11 years on nebulous charges of conspiracy all in the name of ‘compelling State interest’. Some figures of a recent study are important. Reportedly, of a total number of persons booked under UAPA, 66% are for conspiracy, without any accompanying act of violence. The study also reveals that out of the total number of 386 cases that the National Investigation Agency is controlling, only 74 are non-UAPA whereas rest 312 pertain to UAPA and in 56% cases chargesheet has not been submitted for one-two years. I would think these figures definitely point to an unhealthy trend of witch-hunting, which has no legitimate place in a democracy.

In fact, this concern of blatant misuse of the ‘procedure established by law’ is also reflected in a recent speech of ambassador Richard Mills, Deputy Permanent Representative, US Mission to the United Nations on January 12, 2021, delivered at the UN Security Council Open Debate on the 20th Anniversary of Resolution 1373:

“As colleagues have mentioned, history has also shown us over and over again that measures to prevent and counter terrorism that come at the expense of human rights and the rule of law are counter-productive. That is why the United States will continue to object to certain countries’ actions to engage in mass detention of religious minorities and members of other minorities, engage in repressive surveillance and mass data collection, and to use coercive population control like forced sterilisation and abortion. Governments, including governments sadly represented in this Council, must not use counter- terrorism as a pretext for stifling freedom of religion or belief and other human rights and fundamental freedoms.”

Thus, I would think, guided by the UN Security Council, it is time for the government to redeem itself and repeal the UAPA in national interest.

Anjana Prakash is a former judge of the Patna high court and practices in the Supreme Court.

This article was first published on LiveLaw. Read it here