Section 15, UAPA: ‘Terrorist act’
Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country-
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause—
- death of, or injuries to, any person or persons; or
- loss of, or damage to, or destruction of, property; or
- disruption of any supplies or services essential to the life of the community in India or in any foreign country;
commits a terrorist act.
Some of those who protested the Citizenship Amendment Act (CAA) by organising street protests have been charged under Unlawful Activities (Prevention) Act (UAPA). The prosecution case speaks of a “multi-layered, multi-organisational and deep-rooted conspiracy”, which apparently involved protest organisers acting in tandem to occupy public roads, and in the process inconvenience the public, and in some cases even threaten to disrupt supplies.
The prosecution frequently makes references to a public speech by a protestor calling for a ‘chakka jam’ and then uses it to build the case that there was a conspiracy to organise similar protest-blocks across the country. “The entire conspiracy beginning from December 2019 of intentionally blocking roads to cause inconvenience and causing disrupting of the supplies of services, essential to the life of community of India.”
On the other hand, it has been argued that blockage of streets during protests does not cause disruption to essential services as envisaged in the UAPA. It may cause ‘inconvenience’ but that can be covered as a petty offence, or even a traffic malfeasance. ‘Inconvenience’ during a public protest is certainly not a terrorist act, since it seeks to engage with the political establishment rather than terrorise it.
In an order refusing bail to Natasha Narwal, a Delhi court, however, found that an act “creating terror in any section of the people, by making them feel surrounded and resulting in violence” is also a terrorist act. Even if “only one side of the road was blocked, it would still be a complete blockage preventing ingress and egress for the people who are surrounded and for whom panic and terror is created. Hence the provisions of UAPA have been rightly invoked in the present case”.
A criminal trial is a self-contained universe; else we might have thrown up comparisons with other roadblocks, or with the many other kinds of terror that we experience. In a criminal matter, you may only judge the ‘accused’ present before you. Otherwise, there was always the example of the relentless road works/blockages at Central Vista, for instance, and the panic caused to workmen who are obliged to continue working on a construction site during the course of a raging pandemic,
Sarkar, or government (etymology): hukumat, aaqa, maalik, sardar (from the Feroze-ul-lughat, definitive Urdu Dictionary)
The last two weeks of April 2021 have seen an ‘oxygen famine’ in Delhi, as in other parts of India. People died for want of essential oxygen. I can also vouch for the fact that in the last fortnight, I have personally experienced both acute despair and panic at the thought of having been blocked off from essential oxygen supplies.
There were reports that states were blocking the transport of essential oxygen across their borders as insurance against their own depleting supplies. Finally, the courts intervened in an attempt to monitor the supply chains and to ensure a continuous supply of oxygen.
In all of this, Dr. Mahavir Narwal, senior scientist and father to Natasha Narwal who has been in judicial custody for allegedly being involved in the ‘terrorist act’ of causing protest-blocks, which in turn may have slowed down peoples’ daily supplies, took ill. There was the customary scramble for an oxygen cylinder before he found a hospital bed. He passed away at a Rohtak hospital on May 9, 2021.
Inconvenience caused to the sarkar is never comparable to inconvenience caused by the sarkar.
The UAPA defines ‘terrorist gangs’ and ‘terrorist organisations’ that perform ‘terrorist acts’. It gives the government itself the powers to designate any organisation as a ‘terrorist organisations’, while ‘terrorist gangs’ are more loosely described in the Act as ‘associations, whether systematic or otherwise, which are concerned with, or involved in, terrorist acts’.
Although, the Act, as well as the court in Narwal’s case, considers ‘terrorist’ any act that is likely to strike terror in any section of the people, I have never known of any sarkar (or any rogue part thereof) that has been accused of being a ‘terrorist gang’ in a court of law, at least not while still in power.
In the logic of the UAPA, terrorist acts are not those that are perpetrated by the sarkar on its people – some or all of them. It only proscribes acts that are perpetrated by individuals (or organisations) of whatever political persuasion, and for whichever disparate reason, and which create panic in the sarkar and willy-nilly among its supporters.
Any serious lawyer would laugh at this sorry attempt to compare the collapse of oxygen supplies to a ‘terrorist act’ under S. 15(a)(iii) of the UAPA, such as the one under which Natasha Narwal and several others will be tried. The UAPA is a closed statute. The supply of oxygen, which is presently being governed by standing orders under the National Disaster Management Act, 2005 (DMA) is quite another legal regime. The Act defines ‘disaster management’ as a continuous and integral process of planning, organising, coordinating and implementing measures for capacity-building towards preparedness to deal with disaster, as also prompt response and mitigation of further risk. However, it does not provide for any criminal liability even in cases where there is a proven lack of preparedness.
I will say, however, that it’s often not arguments in law but those based on political and social justice that herald any change in status quo.
Shahrukh Alam is a lawyer practising in New Delhi.