Guest post by ANUJ BHUWANIA
Recently the clamour for a draconian terror bill came to fruition with rare alacrity. The Unlawful Activities (Prevention) Amendment (UAPA) Bill was introduced and passed within two days by both houses of Parliament – quite a contrast to, say, the Women’s Reservation Bill, gathering dust now for more than a decade. Coming from a government that repealed POTA soon after it assumed power, the Bill unimaginatively mimics POTA almost entirely, revealing that little has been learnt from the recent history of TADA and POTA and the problems leading to their removal. While such statutes giving extraordinary powers to the police are introduced to cater to ‘exceptional’ situations, they can easily be deployed in ‘ordinary cases’ and indeed routinely are. The bleeding of one category into the other is inevitable, when the police alone decide which is which.
‘Anti-terror laws’ like TADA, POTA and the new UAPA amendments are a combination of substantive and procedural provisions. While the substantive provisions typically define ‘terrorist’ acts in sweeping terms and provide severe sentences for them, it is the procedural provisions and their departures from the basic norms of criminal procedure that are really damaging. The police have enormous incentive to indiscriminately slap such laws on any detenu they choose, knowing the procedural advantages that accrue. By the time the courts find that the case cannot be classed as a terrorist act after all, the investigation under this anomalous procedure is treated as fait accompli, and the evidence thus accumulated is still deemed admissible. The courts have indulged such police behaviour by repeatedly refusing to apply the legal doctrine of “fruit of the poisonous tree” that should in principle taint such illegally obtained evidence.
Perhaps the most insidious procedural change under this law is that bail is made virtually impossible. Ordinarily, all detenus have a right to bail if no chargesheet is filed within 90 days. This is harsh enough, as can be gauged by comparing the law in the UK, where a Bill extending pre-charge detention of terrorist suspects from 28 days to 42 days was rejected by the House of Lords earlier this year. The new Bill in India blithely extends the remand period from 90 to 180 days and police custody from 15 to 30 days. In fact, under this law, detenus can be kept in custody indefinitely, because bail is denied even after 180 days unless the judge is convinced that the detenu is not guilty, proving which is almost impossible at this stage. What this amounts to is ‘preventive detention’ by the back door, without its minimal constitutional safeguards. This hidden intent also explains why the prosecution rate is so low for such statutes—because they are not primarily meant for prosecuting terrorists but for keeping inconvenient people in jail indefinitely. Only about 15% of people arrested under TADA were ever put on trial, and less than 2% convicted. Even Vaiko, charged with POTA, failed to get bail in Jayalalitha’s regime. Such law encourages and routinizes lazy policing, because the police know that the detenu has no chance of bail and can be detained indefinitely.
The new Bill also mimics POTA in making bail explicitly impossible for a foreigner illegally present in India. This is arguably unconstitutional – because Articles 20, 21, 22 which deal with personal liberty, are applicable to all ‘persons’ and not just ‘citizens’ (as with Art.19). Also, proving citizenship in India is not exactly easy for the vast majority who do not possess passports. Inevitably, this will lead to harassment of people who don’t ‘look’ like Indian citizens to our enlightened police and magistracy.
The only significant difference between the new Bill and POTA is confessions to the police are not admissible as evidence. It is important to note here that confessions made to magistrates are admissible, and have high evidentiary value. The procedure for police application to the magistrate for recording such a confession is very simple. Such requests are granted almost immediately and can be made to a duty magistrate after court hours, even at her residence. But the police are opposed to even this minimal safeguard, because they cannot be present when the confession is made and thus cannot hear the detenu’s statement. If confessions made to the police are made admissible, this, along with the enhanced police custody, will relieve them entirely of the task of investigation, as under POTA and TADA where the confessional statement of an accused in custody of a police officer could be the sole basis of conviction.
Even with this proviso, it is disingenuous to pretend that such a law is intended to do anything but give the police – and their political bosses – carte blanche. At least let us have the minimal honesty of not calling the police behaviour that results ‘abuse’, because they would be just be ‘using’ the wide powers granted by this legislation.
(First published in the New Indian Express.)