Thousands Suffer Under UAPA

After the Supreme Court suspended the release of former Delhi University Professor G. N. Saibaba, and five others in a Unlawful Activities (Prevention) Act, questions on the misuse of the act have resurfaced.

On Friday, the Nagpur Bench of Bombay High Court ordered the release of Saibaba and five others that accused them of being members and sympathisers of the banned CPI (Maoist). A day later, on Saturday, the Supreme Court suspended the order.

The HC in its decision on the appeals against the conviction held the trial to be "null and void". It ruled that the same took place in the absence of valid sanction under Section 45(1) of the UAPA.

After the hearing, the apex court in the interim order suspended the High Court ruling, saying that the Nagpur Bench has not decided the case on merits.

"The offences for which the accused were convicted by the learned trial Court are very serious and if ultimately they are tested by the High Court on merits the State succeeds and the judgement and order passed by the learned trial Court is upheld, the offences are very serious against the sovereignty and integrity of the country," the court said.

This means that Saibaba along with others will stay in jail. The anti-terror law has often been described as draconian for its provisions that make it almost impossible for an accused to secure bail.

A recent report by the People's Union for Civil Liberties (PUCL) titled 'UAPA: Criminalising Dissent and State Terror' speaks about the alleged abuse of the legislation during 2009-22, and demanding the law be repealed.

Based on the National Crime Records Bureau's (NCRB) annual reports during 2015-2020, the study said the per case conviction rate under the UAPA was 27.57% compared with 49.67% in Indian Penal Code (IPC) cases. The per-arrestee conviction rate was just 2.8% against 22.19% in IPC cases. During the check period, 5,924 cases were registered and 8,371 persons arrested.

Meanwhile, the report suggests that the average number of cases registered under the UAPA per year by the National Investigation Agency (NIA) during the United Progressive Alliance regime during its second term in power from 2009 till 2014 is 13. In contrast, during the National Democratic Alliance regime, from May 2014 till present, the average number of cases registered per year is 34.

Overall, the maximum number of cases have been registered so far in Delhi (45), followed by Jammu and Kashmir (42), Punjab (29), Kerala (27), Assam (26), Jharkhand (22), Bihar (18), Manipur (18), Maharashtra (16), West Bengal (15), Uttar Pradesh (14), Karnataka (13), Tamil Nadu (13), Andhra Pradesh (12), and Nagaland (7).

The report, which was authored by PUCL General Secretary Dr. V. Suresh, Madhura SB and Lekshmi Sujatha, said that of the 357 UAPA cases handled by the NIA, Section 18 of the Act, which deals with punishment for conspiracy, was invoked in 238 cases. This was followed by resort to Section 20, which deals with punishment for being a member of terrorist gang or organisation, in 187 cases. Section 16, which deals with punishment for a terrorist act, was used in 169 cases. Section 13, which deals with punishment for unlawful activities, was invoked in 112 cases.

Speaking to The Citizen about the report and the misuse of UAPA, Dr. V. Suresh said, "The NIA data clearly shows two things, which are of great concern. One is how the NIA is being used. Apart from the UAPA being weaponised, the NIA is being now weaponised by the Central government. And UAPA is a weapon to put down activists and other groups. So, there are two ways in which it is being operating – NIA as the agency in terms of the constitutional federal setup that we have in India and UAPA as the chosen legal weapon to crush liberties."

He added that UAPA needs to be looked at in the background historical precedents to make sense of the data. "Back in 2009, when it was introduced by the then Manmohan Singh government and backed by Chidambaram, what most of the progressive MPs raised in the Parliament was that this law was giving too much unbridled, uncontrolled, unregulated, unmonitored power to the central agency, which is directly under the MHA.

"There is no judicial oversight that can be made possible of misuse as against the state governments. Chidambaram had then assured everyone and said that this was not an ordinary law, this is a special law and has to be used only for special occasions to put down terrorism and terrorism as against national integrity, national sovereignty, national security etc. and therefore, will not be misused," he said, adding that Chidambaram also assured that the law will be used in the rarest of rare cases.

Based on the total cases registered, Manipur (1,965 cases) stood at the top followed by Jammu & Kashmir (1,163), Assam (923), Jharkhand (501), and Uttar Pradesh (385 cases).

The report said at the heart of "abuse" of UAPA was the issue of bail and conviction rates. "The problem with considering the NCRB figures of number of persons acquitted or convicted is that they probably refer to UAPA cases registered in previous years and not to cases filed in the respective years alone; this is because acquittals and convictions arise only at the end of the criminal trial before the special court...," it stated.

On the validity of the huge number of transfer cases, PUCL's report stated: "It is a moot question as to whether the state governments were consulted or they agreed to these transfers. The validity of these transfers from the state police to the NIA is also suspect since a high number of these transferred cases were not even remotely connected to national security or threat to sovereignty or involved any violence".

Dr. Suresh added that NIA was chosen as all the details were available on their website. "Our report also carries all the FIR numbers of the cases. We have referred to them. We don't know if they're available today after our report was published. Because oftentimes, even as we were doing the study, it took a long time. Even as we were doing the study, a lot of documents went missing. Luckily, we had downloaded some of them. And once we realised there's a pattern behind it," Dr. Suresh said.

Saibaba's case has just been one of the many cases under UAPA due to which getting bail has been difficult.

Referring to what it calls "abuse of the conspiracy provision", the report stated, an analysis of use of Section 18 of UAPA titled Punishment for Conspiracy suggests, an alleged agreement to commit a terrorist crime is enough to prosecute; the "object" of the agreement need not have occurred. "The definition of conspiracy is so wide and elastic, that anyone can be roped in", it states.

An examination of the number of cases under Section 18 UAPA offences reveals that out of total UAPA cases investigated by NIA (357), the cases involving Section 18 charges were 238. Of these 238 cases, the cases where some incident of terrorism occurred were 86 cases (36%), while cases where no specific incident involving weapons or causing physical injury were 152 cases (64%).

The report stated that in 64% of cases involving the Section 18 UAPA charge, the mere allegation of the police that a person is a member of a proscribed terrorist organisation or some recoveries were made from him of an alleged weapon or explosives or drugs or money is sufficient to arrest the person and be imprisoned for many years.

The PUCL's report reveals that the conviction rate of UAPA cases is an abysmal 2.8 per cent, when the number of persons arrested and convicted is taken into account. Such a poor conviction rate is in conformity with the trend of its preceding anti-terror laws such as TADA and the Prevention of Terrorism Act, 2002 that were repealed, as both were characterised by extremely poor conviction rates.

The report infers that close to 97.2 percent of the 8,371 persons arrested between 2015 and 2020 (that is, 8,136 persons) actually got acquitted at the end of trials in the UAPA courts. "Such high acquittal rates, only highlights the fact that most of the prosecutions are devoid of merit and did not warrant initiation of any prosecution in the first place, much less under the UAPA".

Meanwhile, protests were made by various civil organisations to demand the release of Saibaba and other political prisoners.

"More than two thirds of the cases do not involve any incident of terror. Then the logical question is then why do you have to use the UAPA and that is where the intent comes in. When you look at the number of cases, the BJP government has been going out of the way to weaponize UAPA," Dr. Suresh said.

The report, seeking wider media attention to educate people about the dangers of such laws, demands repeal of UAPA and repeal of all other anti-people laws; repeal of the NIA Act and disbanding of NIA; immediate release of all political prisoners, on bail; action against all police officials who have wilfully launched false and fabricated cases against marginalised communities, journalists, academicians, students and others; and reparations for those wrongfully accused and released by courts.

"This study is in the nature of a preliminary exploration of both the macro picture with respect to the data on use and abuse of UAPA as well as aims to provide a micro lens on the lives devastated by the law. By beginning to document the scale of abuse faced by thousands under this law and by formulating a comprehensive database on all UAPA prosecutions across the country, the dangers in the ambiguities of the UAPA law and its draconian provisions become all the more striking.

"The objective is also to stimulate more discussions and encourage more research on the constitutional, moral, ethical and human consequences of the UAPA and the NIA, as we all come together and demand the repeal of the law," the report concluded.