Fear Cuts Deeper than Swords: The Unlawful Activities (Prevention) Act v. the Indian Constitution
The Indian Judiciary is believed to be a “custodian of the Indian Constitution”[i] and the “supreme protector of human rights”[ii]. However, a closer look at the Shaheen Bagh protest site and the farmer’s rally tells another “toolkit”[iii] tale. Constitutionally speaking, a sit-in peaceful protest led by Muslim women, in response to the passage of the allegedly unconstitutional Citizenship (Amendment) Act, 2019 (“CAA”), mirrored the reflections of the stories of young imprisoned activists including Safoora Zargar,[iv] Natasha Narwal and Devangna Kalita[v]. Interestingly, a rather “draconian law”[vi] called the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) was slapped on them. A lex-specialis, which interestingly was not invoked in the Disha Ravi case[vii] wherein a Bangaluru Based climate activist Ms. Disha A. Ravi, aged all of 21 years was taken into custody by the Special Cell of the Delhi Police for editing and sharing a toolkit – a Google Cloud document (which tried to explain the farmer’s protest strategy against the Indian Government on Delhi borders over the farm laws passed by Indian Parliament in 2020), with global teen anti-climate change campaigner Ms. Greta Thunberg.[viii] Though some Khalistani hashtags were purportedly found in the deleted portions of the second modified toolkit that was uploaded.[ix] Interestingly, Disha’s leaked WhatsApp chats[x] document her fears of being held under the UAPA for purportedly circulating and sharing the toolkit, with the stark intent of mobilizing farm protestors via standard operating procedures designed by its alleged authors. However, for reasons best known to the investigating authorities, provisions of the draconian UAPA seem to have fallen between the cracks of the Disha Ravi FIR lodged.
So, what does UAPA do? Well, the law in its current form does no more than threaten constitutional rights while favoring restrictions. Firstly, definitions of the word “terrorist”, “unlawful activity”, “likely to threaten” and “likely to strike terror” in Sections 13, 16 and 17 read with 4th Schedule of the Unlawful Activities (Prevention) Amendment Act, 2019 (“UAPA, 2019”) are nebulous, expansive and open to abuse by the Investigating Authorities (Special Cell). As per the Indian Ministry of Home Affairs, as many as 1948[xi] persons were arrested in 1226 cases registered across the country in the year 2019.[xii] In other words, there was a 72 % rise in the number of the UAPA cases being registered in 2019 by the Indian police. This when contrasted with the number of convictions by the Courts from 2016 – 2019 fell to an abysmal low of 2.2% only.[xiii] Massive powers are given into the hands of the State to play in and assess who a terrorist is (harboring “disaffection” and not just “dissent” as per the Kedar Nath test of Sedition under Section 124A of the Indian Penal Code, 1860) sans any concrete guidelines/criteria laid down by the Parliament or the Hon’ble Courts. Is dissent much more challenging to express, paradoxically, even in a copious democracy like India?
Secondly, reverse burden of proof (tacit presumption of guilt hung in the neck of the accused like an albatross) makes matters worse. The practical detention time lines, long pace of trials in India coupled with a bare perusal of the statutory bar of Section 43D of the UAPA provisions for an individual to be detained for at-least 180 days, that too without the filing of a chargesheet by the investigating authorities. In cases falling under Chapter IV and V of the UAPA, the accused does not get bail if there are reasonable grounds to believe that the accusations against him are prima facie true. Such a water-tight blanket ban on the constitutional right of an individual to seek bail ensures the accused has no access to the chargesheet, First Information Report (FIR) or any investigative material collated by the investigating authorities. One may note that even in normal police investigations, let alone Special Cell ones, as per Section 207 of the Criminal Procedure Code, 1973 it is mandatory that a complete and legible copy of the charge sheet be shared with the accused so as to enable him to seek regular bail in a court of law.
Thirdly, the UAPA, 2019 widens the power of the Executive (“State”) by enabling it to designate individuals as “terrorists” without following any cogent newly designed process, alongside providing the accused no plausibly effective means of redress, let alone even a regular bail hearing (which is a rarity) post arrest. The police authorities statutorily have 180 days to file a chargesheet under the UAPA,[xiv] ensuring that they exhaust it all. Such arbitrary provisions must be declared unconstitutional for they are starkly violative of Articles 14, 15 and 21 of the Indian Constitution, insofar as they seek to recognize individuals as “terrorists”, imposing an exceptionally high barrier to seek, let alone grant of bail. Even post being branded a terrorist, the lack of an appellate procedure to challenge placement in the 4th Schedule,[xv] yet again makes a mockery of the so called Wednesbury Principles[xvi] of “reasonableness”, “fairness”, “due process of law” and “procedure established by law”.
Though the Hon’ble Apex Court is seized of a Public Interest Litigation impugning the UAPA, filed by an NGO called Association for Protection of Civil Rights in 2019[xvii], the matter still remains sub-judice. While adjudicating Safoora Zargar’s Bail application, the Hon’ble Delhi High Court too respectfully let go of a golden opportunity to lay down necessary prescriptive guidelines elucidating how and when peaceful protests (be it against the CAA or farmer’s laws) could amount to causing “disaffection against India” within the meaning of Section 2(o)(iii) of UAPA.[xviii] On the contrary, Hon’ble Justice Rajiv Shakhder thought it best to grant regular bail to Safoora Zargar on humanitarian grounds, since she was heavily pregnant, suffering from polycystic ovarian disorder, having remained in judicial custody for over five months during the COVID-19 crisis situation.[xix]
Maybe it is time to reevaluate this Indian anti-terror law and uphold fundamental rights while striking down the unconstitutional provisions enshrined in the UAPA. A strict interpretation of penal statutes dictates that “legality” be structurally protected, both substantively and procedurally. And we say this only because we truly believe that fear cuts deeper than swords.
* The authors acknowledge the assistance of Advocate Rohan Bhambri, Mr. Rajat Tanwar and Ms. Charu Sharma.
[i] Refer powers of Judicial Review of the Hon’ble Supreme Court of India enshrined in Articles 32 and 13 of the Indian Constitution; L. Chandra Kumar v. Union of India, (1997) 3 S.C.C. 261.
[ii] K.S. Puttaswamy (Retd.) & Anr. v. Union of India, (2019) 1 SCC 1, ¶ 324, https://www.scconline.com/blog/post/2019/02/07/2019-scc-vol-1-january-2019-part-1/.
[iii] Disha A. Ravi v. State, Bail Application No. 420/2021, ¶ 2 on Page 12, https://images.assettype.com/barandbench/2021-02/05c1a67e-051b-49c3-a0a1-cd1bc1e24da0/Disha_Ravi_bail_jud gment.pdf.
[iv] Safoora Zargar v. State 2020 SCC OnLine Del 664.
[v] Devangana Kalita v. State of NCT of Delhi, decided vide Bail Application No. 2038/2020 on 1st September, 2020 by the Hon’ble Delhi High Court at New Delhi.
[vi] Jhuma Sen, First, they came for the lawyers (April 10, 2021, 05:33 PM), http://dspace.jgu.edu.in:8080/jspui/bitstream/10739/2947/1/First%20They%20Came%20For%20the%20Lawyers.pdf .
[vii] Supra, note 3.
[viii] India Today Web Desk, Disha Ravi Case: What is a toolkit that has brought activists under the lens?, INDIA TODAY (April 10, 2021, 09:01 PM), https://www.indiatoday.in/india/story/disha-ravi-case-what-is-a-toolkit-that-has-brought-activists-under-the-lens-1769523-2021-02-15.
[ix] Deepak Nagpal, A Zoom meeting, a deleted WhatsApp group and ISI K2 desk connection – Delhi Police unravel ‘toolkit’ mystery (April 12, 2021, 04:33 PM), https://www.timesnownews.com/india/article/nikita-disha-shantanu-created-farmers-protest-toolkit-all-3-linked-to-pro-khalistan-pjf-delhi-police/720516.
[x] Disha A. Ravi v. State (NCT of Delhi) & Ors., 2021 SCC OnLine Del 822.
[xi] National Crime Record Bureau, Crime in India 2019 Statistics Volume III, Table 19A.7, Ministry of Home Affairs Government of India (April 10, 2021, 10:11 PM), https://ncrb.gov.in/sites/default/files/CII2019-Volume-3.pdf.
[xii] National Crime Record Bureau, Crime in India 2019 Statistics Volume III, Table 17A.3, Ministry of Home Affairs Government of India (April 10, 2021, 10:11 PM), https://ncrb.gov.in/sites/default/files/CII2019-Volume-3.pdf.
[xiii] Ghazala Ahmad, Only 2.2% of Cases Registered under UAPA from 2016-2019 Ended in Conviction: Government Tells Rajya Sabha, The Cognate (April 10, 2021, 05:33 PM), https://thecognate.com/only-2-2-of-cases-registered-under-uapa-from-2016-2019-ended-in-conviction-government-tells-rajya-sabha/.
[xiv] The Unlawful Activities (Prevention) Act, 1967 § 43D (2) (b).
[xv] Constitutionality and UAPA Amendment, available at https://www.scobserver.in/court-case/association-for-protection-of-civil-rights-v-union-of-india/constitutionality-of-uapa-amendment-act-petitions-explained.
[xvi] Tarun Krishnakumar, The Wednesbury Principles: Formulation, Evolution and Demise?, 1.1 CLAQ 3, 6 (2013).
[xvii] Sajjal Awasthi v. Union of India bearing W.P.(C) No.1076/2019 and Association for protection of Civil Rights v. Union of India bearing W.P.(C) 1096/2019, both Public Interest Litigations are sub-judice before the Hon’ble Supreme Court of India; Legal Correspondent, UAPA Amendment: respond to pleas, apex court tells govt | news report, The Hindu, September 06, 2019, https://www.thehindu.com/news/national/uapa-amendment-supreme-court-asks-govt-to-respond-to-pleas/article29349629.ece.
[xviii] The Unlawful Activities (Prevention) Act, 1967 § 2(o) (iii).
[xix] Safoora Zargar v. State, 2020 SCC OnLine Del 664, ¶ 2, 5.
This article has been authored by Ms. Shriya Maini, Advocate-on-Record practicing in the Supreme Court of India and the Delhi High Court, and Mr. Vishesh Wadhwa, an independent legal practitioner based out of Delhi. They were assisted by Ms. Krati Gupta, a second-year student at RGNUL, Punjab.* This blog is part of RSRR’s Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.