Excerpts: US State Dept Report Records Increasing Use of UAPA by Indian Government

The report cites the conditions in which the incarcerations of a pregnant Safoora Zargar, and ageing activists Varavara Rao, Sudha Bharadwaj and Stan Swamy progressed.

The US state department released the 2020 human rights report last week, accompanied by renewed rhetoric of putting emphasis on human rights at the heart of American diplomacy.

From the India chapter, here are excerpts from the report on the use of the Unlawful Activities Prevention Act (UAPA) from its section on ‘Arrest Procedures and Treatment of Detainees’.

“The law also permits authorities to hold a detainee in judicial custody without charge for up to 180 days (including the 30 days in police custody). The Unlawful Activities Prevention Act (UAPA), which gives authorities the ability to detain persons for up to 180 days without charge in cases related to insurgency or terrorism, makes no bail provisions for foreign nationals, and allows courts to deny bail in the case of detained citizens. The UAPA presumes the accused to be guilty if the prosecution can produce evidence of the possession of firearms or explosives or the presence of fingerprints at a crime scene, regardless of whether authorities demonstrate criminal intent. State governments also reportedly held persons without bail for extended periods before filing formal charges under the UAPA. The 2018 PSI report released in January revealed that 5,102 UAPA cases were pending investigation and trial.

“In August 2019 parliament passed an amendment to the UAPA that allows the government to designate individuals as terrorists and provides new authorities to the National Investigation Agency (NIA) to seize properties acquired from proceeds of terrorism. According to the Center for Law and Policy Research, the number of cases filed under the UAPA rose from 976 cases in 2014 to 1,182 cases in 2018. States and union territories with insurgent activity, including Manipur and Jammu and Kashmir, also saw an increase in the application of the UAPA. On April 10, authorities arrested pregnant student leader Safoora Zargar under the UAPA for allegedly conspiring to incite the Delhi riots. The Delhi High Court released her on June 23 after the central government did not object to her release. On September 13, former Jawaharlal Nehru University (JNU) student leader Umar Khalid was arrested under the UAPA for making a speech during anti-CAA protests.

Illustration: The Wire

“In January the NIA assumed responsibility for the Maharashtra police investigation into the 2017 arrest of five human rights activists. On October 8, the NIA arrested 83-year-old Jesuit priest and human rights activist Stan Swamy in relation to this investigation; authorities denied his request for bail on October 23. On August 17, the NIA opposed the bail plea of Sudha Bharadwaj, another activist involved in this investigation, who appealed her detention on health concerns during the COVID-19 pandemic. Varavara Rao, an 80-year-old human rights activist under arrest, tested positive for COVID-19 in June and was hospitalized. His family and supporters continued to petition for his release. [Rao has since been granted bail on medical grounds]. Swamy, Bharadwaj, and Rao were three of the five human rights activists Maharashtra police arrested in 2018 for the Elgaar Parishad-Koregaon Bhima events, involving an alleged plot to overthrow the government and assassinate the prime minister. All five asserted wrongful arrest and detention and claimed the arrests were intended to muzzle voices of dissent. At year’s end the five activists remained in detention. 


Trial Procedures 

The law provides for the right to a fair and public trial, except in proceedings that involve official secrets or state security. Defendants enjoy the presumption of innocence, except as described under UAPA conditions, and may choose their counsel. The constitution specifies the state should provide free legal counsel to defendants who cannot afford it to ensure that opportunities for securing justice are not denied to any citizen, but circumstances often limited access to competent counsel. An overburdened justice system resulted in lengthy delays in court cases, with disposition sometimes taking more than a decade. 

There were reported cases in which police denied suspects the right to meet with legal counsel as well as cases in which police unlawfully monitored suspects’ conversations and violated their confidentiality rights. 

While defendants have the right to confront accusers and present their own witnesses and evidence, defendants sometimes did not exercise this right due to lack of proper legal representation. Defendants have the right not to testify or confess guilt. Courts must announce sentences publicly, and there are effective channels for appeal at most levels of the judicial system.