As the police increasingly seek a draconian UAPA, are the courts pushing back?

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On Saturday, the Tripura government reserved 102 social media accounts under the Illegal Activities (Prevention) Act 1967 as well as various sections of India’s penal code dealing with offenses such as promoting enmity between different groups for grounds of religion and criminal association. These social networks had published articles on the recent community violence in Tripura.

Prior to that, on Wednesday, a team of lawyers investigating the violence in the state had also been convicted under similar provisions of the law.

In recent years, there has been an increase in the number of cases against government critics under the UAPA, a harsh law that was passed to combat terrorist activities and actions such as incitement to secession or disruption of the sovereignty and territorial integrity of India. .

Recently, however, there have been more cases where the courts have rejected this abuse of the anti-terrorism law.

A person engaged within the framework of the UAPA for having tweeted about the communal riots in Tripura.

How is UAPA (mis) used?

The UAPA is ostensibly a law to help fight terrorism. But it has been used against a variety of other activities. On October 26, the Jammu and Kashmir Police booked students and staff at two UAPA medical schools. They reportedly cheered Pakistan when they won a T20 World Cup match against India.

In another case, Assam police convicted a person under the UAPA for allegedly posting a Facebook post saying the Taliban in Afghanistan are not terrorists.

There are several other cases of people being booked under the UAPA for actions that do not appear to be related to terrorism. These include the smuggling of gold, the sale of a SIM card without verification and the “misuse” of social media to spread rumors.

The strict provisions of the UAPA make bail extremely difficult. As a result, those arrested often spend years behind bars awaiting trial in court. In the Bhima Koregaon case, activists and academics accused of inciting violence have now been in prison for three years without even the trial having started. This despite the fact that independent researchers have warned that there are strong signs that the evidence against the defendants may have been placed on their computers using electronic malware.

Increase in UAPA cases

Since 2015, there has been an increase in the number of UAPA cases. In 2015, there were 897 cases. This number rose to 1,226 cases in 2019. The number of arrests has also increased significantly. In 2019, 1,948 people were arrested in application of the law, against 1,128 in 2015, an increase of 72%.

Number of cases registered under the UAPA and number of arrests made from 2015 to 2019.

The abuse of this legislation is obvious: only 2.2% of UAPA cases registered between 2016 and 2019 resulted in convictions. Indictment sheets were filed in only 17% of cases. Even former Supreme Court justices have raised concerns about the abuse of the UAPA and called for guidelines to be developed to combat it.

Why do the police like UAPA?

Police use UAPA because its strict anti-terrorism provisions make bail difficult and reduce the burden of prosecution.

Police could ask 180 days to file an indictment for UAPA cases, compared to 90 days for cases filed under the Code of Criminal Procedure, which is typically used for criminal cases.

UAPA Section 43D (5) denies bail for certain offenses if there are reasonable grounds to believe the charges appear prima facie true.

In addition, section 49 of the Act protects any authorized agent “for anything done in good faith” in the prosecution of a case. This has been criticized for “paving the way for state excesses”.

How do the courts view the UAPA?

The court wore several hats when interpreting the UAPA. In some cases, he has made the provisions of the UAPA even stricter, thereby favoring the executive, while in some cases he has fought back abuse of the law and granted reparations to the accused.

In 2019, in Watali, the Supreme Court ruled that in order to grant a bond, it only had to see if the charges were founded on the face of it and it did not have to weigh the elements produced by the charge. The ruling tightens the already strict law by prohibiting courts from analyzing prosecution evidence and saying that courts need only see if there are “reasonable grounds to believe that the accusation against that person is prima facie true ”.

However, there was some recoil on the part of the courts following this judgment for two reasons: first, when the accused’s right to a speedy trial was impaired, and second, when the prima facie case against the accused. does not confirm the charges.

Right to a speedy trial

In 2021, the Supreme Court ruled that regardless of UAPA Article 43D (5), which makes it difficult to obtain a bond, the courts can grant a bond if the right to a speedy trial, guaranteed. by Article 21 of the Constitution, is hampered. In the current case, the accused had been in prison for more than five years but 276 witnesses had not yet been interviewed.

This opened up a new line of reasoning for granting bail, which was also subsequently applied by the High Courts.

In October, the Delhi High Court, while granting bail to a defendant in the 2008 Delhi serial explosions case, relied on the Supreme Court case. He said that since the accused had spent over 12 years in pre-trial detention and 60 prosecution witnesses remained to be questioned, the accused’s right to a speedy trial was impeded and he should be released on bail.

The Supreme Court. Credit: Adnan Abidi / Reuters

On the background

The courts have also examined the facts of the case to see if a prima facie case has been established under a law intended to combat terrorism.

In 2020, for example, the Delhi High Court granted bail to a seller indicted under the UAPA in the Delhi violence case, who was indicted under the UAPA because the only evidence against him was that he had sold a SIM card without properly verifying the identity. client. The court said the report “does not disclose the commission of offenses under the UAPA, 1967, except for plain witness statements”.

In April, the Gauhati High Court tried in the case of Akhil Gogoi, a member of the Legislative Assembly of Assam who was arrested for protesting against the citizenship amendment law, for the simple act of committing an act of civil disobedience does not constitute terrorist activity under the UAPA. There must be an intention to commit terrorist activity.

The anti-terrorism law to protest?

Earlier this year in June, the Delhi High Court, while giving bail to leaders of protests against the law amending the citizenship law Asif Tanha, Natasha Narwal and Devangana Kalita in a case accusing them of inciting violence in Delhi in 2020, in three different ordinances made important principles on the interpretation of UAPA. She considered that common law offenses cannot be covered by the UAPA.

Since the defendants had only staged protests, which were neither banned nor banned, no prima facie case under the UAPA had been established against them, he said.

It also ruled that the charges against the accused must be specific. In this case, he said, there was “absolutely nothing in the indictment in question” by way of “specific or particular allegation” to show violations under the UAPA.

He said the prosecution must demonstrate a prima facie case that a terrorist act has been committed rather than relying on “inferences and conclusions”.

Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha on their release from prison on June 17, 2021. Credit: Rebel Politik Visuals, @rebel_politik.

In August, the Bombay High Court ruled to grant bail in a UAPA case both on the merits and on the fact that the accused had been in prison for a long time. He also ruled that people cannot be prosecuted under the UAPA for simply having a discussion or simply for possessing a document.

Even the High Court of Punjab and Haryana has ruled that mere claims that an individual is involved in terrorist activity are not sufficient to justify UAPA charges.

In October, Gauhati’s High Court, while granting bail to an UAPA defendant, ruled that simply posting on Facebook that the Taliban are not terrorists would not be sufficient to constitute a criminal offense. ‘UAPA. There must be other incriminating elements.

No vague claims

In the same month, the Supreme Court granted bail to two UAPA defendants who were accused of having suspected links with the banned political organization, the Communist Party of India (Maoist). He read the provisions of the UAPA strictly to consider that the prima facie case raised by the prosecution must show that the accused was not merely associated with or supported a prohibited organization, but committed an act to promote the activities of the prosecution. this organization. The court emphasized that the prosecution must demonstrate specific overt acts rather than relying on vague allegations.

On November 3, in a gold smuggling case, the prosecution attempted to argue for UAPA and oppose bail. However, the Supreme Court ruled that prima facie gold smuggling does not constitute terrorist activity under the UAPA and granted bail to the accused.

Court pulling the rope back

While there have been a few attempts by the judiciary to curb the misuse of the UAPA, these are just a few of the many UAPA cases. Even where a court may have taken a position that defends civil rights, others may stick to an uncompromising position.

For example, days after the Delhi High Court granted bail in June to the leaders of the Citizenship Amendment Act protests accused in the Delhi Riots Plot case, the Supreme Court ruled that the ordinance should not be seen as a precedent. This ensured that other defendants in fragile UAPA cases could not benefit from the order.

The High Court had been described as “perhaps the first instance of a tribunal to denounce the alleged abuse of UAPA against individuals”. Legal experts argued that the suspension by the Supreme Court could be illegal.

Read also :

“For anything and everything”: UAPA cases increase in Kashmir

Why the Supreme Court’s order in Delhi riots cases undermines Delhi High Court

Granting bail to activists, Delhi HC exposes UAPA abuses – but inherent flaws in law remain



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