There is barely a piece of law in India that has generated such heat and controversy as generated by the Unlawful Activities Prevention Act, 1967, popularly known as UAPA. Frequent use of UAPA, more particularly against the dissenting voices or those who are asking uncomfortable questions to the power that be, has compelled many to term this draconian piece of legislation as an antithesis to liberty, which our apex court has termed as the ‘arc of the covenant’.

There is an increasing trend of using UAPA since the advent of BJP to power in 2014. This disturbing trend is clearly reflected in data released by government agencies. The National Crime Records Bureau (NCRB) data show that during 2015 a total of 897 cases under UAPA were registered across the country and subsequent years show a constant increase in these numbers, which is as follows: 2016-922; 2017-901; 2018-1182; 2019-1126 (Times of India, March 10, 2021).

Intellectuals, activists, student leaders who are the critics of the policies of the state are languishing in jails for years on being arrested under various provisions of this Act. The more intriguing fact is that the conviction rate of persons charged under this law is very low. After remaining in jails for years the accused persons came out acquitted. Stringent provisions of granting bail as provided in provision to section 43(D) (5) of the UAPA are the prime reason behind creating such situations.

UAPA in its original form was enacted by the Indian Parliament in the year 1967 basically to deal with the situation created by the secessionist demand of the DMK party for a separate “Tamil Elam”.  At the time of its enactment, it was not an “anti-terror” piece of law and till 2004 UAPA was like any other normal penal law.

However, 2004 marked a difference with the insertion of chapter IV in the parent Act to punish a terrorist act. The amended act made the terrorist act a penal offense apart from giving a specific definition to the “terrorist act”. These amendments were apparently brought to deal with the havoc created by cross-border international terrorism. Thereafter, in 2008 and 2019 major amendments were made making this Act more stringent.

The statement, object and reasons of the Act as inserted in the year 2008 make clear the purpose of amending the original Act. This was to give effect to the United Nations Security Council’s resolutions on combating cross-border terrorism.

Although, there is no universally accepted definition of terrorism or terrorist act, however, UN Security Council resolution no.1566 adopted in the year 2004 condemned terrorist acts as criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to a donor to abstain from doing any act, which constitutes offenses within the scope of and as defined in the international conventions and protocols relating to terrorism, and under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature”.

Thus, from the language of the aforesaid resolution, it becomes crystal clear that the UN while asking the member states to combat the terrorist activities envisaged a completely different kind of activities as against what has been happening in present-day India.

There can be no doubt that this stringent Act, mainly being amended to meet extraordinary situations created by terrorist acts in general and cross-border terrorism in particular, should always be invoked sparingly. The stringent nature of this legislation can be understood from the provision relating to the grant of bail. Section 43(D) (5) puts an additional burden on the court while deciding a bail application filed by an accused.

The data shows that in ninety percent of the cases courts refused to grant bail even after the accused having languished in jail for a substantial period of time. Thus, the general principle followed in granting of bail i.e. “bail is the rule, jail is an exception” is not applicable in cases where UAPA is slapped.

We must understand that the concept of bail in criminal offences is directly relatable to Article 21 of the Constitution of India, which guarantees the right to personal liberty as a fundamental right. Now when legislation sought to impose fetters on the personal liberty of a citizen, its use cannot be in a casual manner as has been happening in India, where we are witnessing people being put behind bars just for opposing government policies. This is against the constitutional spirit and morality.

The question about not getting bail and the accused languishing in jail has been raised time and again in the context of UAPA. Why this is happening? Apart from Act itself making it difficult, the manner in which the Apex Court of the country interpreted the provisions of the Act has also raised the bar a notch above.

In Jaroor Ahmed Watali vs NIA, the Apex court clearly laid down that at the stage of consideration of bails, courts are not permitted to look into the admissibility or reliability of the documents produced by the prosecution. Now, such a proposition goes against the fundamental principles of criminal jurisprudence. As a result of such a proposition, it has become more difficult for the courts to grant bail to an accused.

Let us take the cases of Bhima Koregaon accused and Akhil Gogoi to understand this. In Bhima Koregaon case the basis of the arrest of the accused persons was an email that discloses Maoist conspiracy. Now, none of the accused can question the admissibility and reliability of such documents, although recently it has been confirmed by a US-based expert agency that these emails were planted by outsiders by using some kind of spy software.

These emails, in themselves, will not be enough to hold the accused persons guilty, but till the competent court passes a verdict after a long and tardy trial they will have to be behind bars.

Similar is the case with Akhil Gogoi investigating agency is trying to implicate him with Maoist activities on the basis of purported statements of two unidentified ‘protected witnesses’.

Now, such statements without any other corroborating materials have no value in the eye of the law, but the courts will have to accept it as true till the trial finally ends. This kind of interpretation of the law is giving the state and its agencies a kind of leverage which they have been using to suppress the voices of dissent, making the law itself a threat to democratic values.

However, there is a silver lining. Very recently the Apex Court while taking up a Kerala case observed that long detention of an accused is a ground for grant of bail and fetters put by section 45(D)(5) of the UAPA and judgment passed in Watali’s case will not come in the way of a constitutional court in granting bail. Hope with the change of guard in the top court of the country there will be a change in the way courts look into such aberration of law.

SANTANU BORTHAKUR

Santanu Borthakur is a renowned advocate based in Guwahati. He can be reached at santanuborthakur@icloud.com

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