Guest post by AVANI CHOKSHI
It seems ludicrous that in a civilised democratic society like India, a citizen may be practically abducted by police, charged with perfunctory offences and incarcerated without bail on mere suspicion for an indefinite period of time. But this is indeed the situation in present-day India, with duly passed legislation sanctioning the inhumane state of affairs.
The validity of unjust or immoral laws has long been debated, with two major schools of thought emerging- the positivist school and the naturalist school. The positivist school does not recognise any correlation between the legal system of a society and notions of what ought to be justice. The positivist framework mandates that the law is that ordained by the valid legislator, whereas the naturalist school of thought envisages some rights to be inherent by virtue of humanity of a person. Thus, an unjust law, as per the school of naturalist thought, would be no law at all; positivistic thought, on the other hand, would posit such law to be valid by virtue only of being ascribed to the law-making process. The Hart- Fuller debate devolved around the law made by Hitler; with Hart contending that laws passed using proper procedure would always be valid and Fuller maintaining that no unjust rule could ever be law. India allows “procedure established by law ” to deprive people of their Fundamental Rights; a state of affairs which reflects positivistic thought in the founders of India. India’s judiciary has slowly moved from this strictly positivist setting to a more naturalistic and liberal interpretation of the term. This shift has placed India closer to the guarantee of “due process of law” in the United States of America.
On May 9th, 2014, an English professor at a Delhi University college, Professor G.N. Saibaba, was blindfolded and pushed into a police vehicle while on his way home from work. He was taken to jail, where he was kept in a solitary cell; further, he was allowed no contact with his family. Despite being a 90% disabled, wheelchair-bound cardiac patient with chronic back pain, he was placed in a cell without the legally required ramps and toilets required for disabled inmates. The reasons behind Professor Saibaba’s clandestine incarceration were some allegedly incriminating materials found by the police in a house raid, along with alleged Naxalite linkages. At the time of the raid, two local barbers were coerced into verifying that those materials were indeed taken from his house. Further, his bail was denied despite cogent grounds under the Code of Criminal Procedure, 1973 – which provides for granting of bail to infirm persons. He had been charged under the Unlawful Activities Prevention Act, 1967, (hereinafter UAPA) the provisions of which facilitate this atrocity. The now well-recognised Binayak Sen is also a significant icon to human rights groups- his detention for two years on circumstantial evidence without trial under the UAPA drew loud cries of protest. Former Chief Justice of Delhi High Court Rajinder Sachar in this context commented the “Unlawful Activities Prevention Act (UAPA) under which he has been convicted is unconstitutional.”
UAPA is India’s foremost anti-terrorism legislation, which has recently been amended twice- in 2008 and 2012. The law has become increasingly repressive, regressive and draconian. This post will discuss the most controversial provisions of each amendment rather than providing a general overview.
After the 2008 bomb blasts in Mumbai, the parliament hastily passed an Amendment after a single day of debate . The 2008 Amendment to the UAPA incorporated a large number of substantive as well as procedural provisions that mirror other anti-terrorism Indian legislations no longer in force due to their draconian natures such as the Prevention of Terrorism Act (POTA) and the Terrorism and Destructive Activities (Prevention) Act (TADA). The safeguards of those statutes, however insignificant, were not incorporated in the Amendment. Further, unlike those laws, however, the UAPA is an ordinary law, and thus binding indefinitely, till repealed.
Several provisions that were assimilated into UAPA were criticised globally as repressive and hugely open to misuse. These provisions enable the State in the enforcement of its whims and fancies, and can, and have led to numerous human rights violations. The urgency with which the Amendment Act was passed did not allow time for public censure by civil rights groups. Further, this Amendment was harshly condemned by various international institutions for failing to comply with international human rights conventions and treaties ratified by India.
This 2008 Amendment defined terrorism in an imprecise and vague manner, including under the ambit of ‘terrorist act’ damage to property and “disruption of supplies or services essential to community”[i]. The covert purpose of this amendment is arguably to enable the State to brand as terrorists even those engaged in peaceful protests such as rail strike. With no restraint on the scope of such a provision, this clearly infringes on the fundamental right of citizens to demonstrate, which has been held to be a component of the fundamental right to speech and expression . Further, the UAPA authorises the government to declare certain organisations unlawful for a period of two years.[ii]While the State must prove its case before a tribunal, the State has the right to withhold evidence from the incriminated organisation on grounds of public welfare.[iii]This effectively disables the functioning of any association towards which there is State antipathy. Several other disturbing provisions were integrated into the act; these included empowering the police to search, seizure and arrest without warrant or court order, the power to detain an accused for 180 days without filing charges against him- including up to 90 days in police custody and provisions regarding in camera hearings and secret witnesses.[iv]
Another provision creates a rebuttable presumption of guilt on the basis of certain evidence.[v] Thus, the onus of proof is on the accused to prove his innocence when weapons believed to have been used in the commission of the offence are seized from her possession. Some human rights activists have noted that the real possibility of planted evidence has passed unremarked. As a common law country, India follows an adversarial justice system, one of the basic tenets of which is a presumption of innocence of the accused. Unlike the civil law inquisitorial system, an adversarial system has a neutral judge giving a reasoned judgment after the presentation of arguments for both sides. Thus, the notion that the prosecutor must prove the case (beyond reasonable doubt in criminal matter) is fundamental to the notion of an adversarial justice system . Further, Indian courts have always strongly endorsed the human rights notion of a presumption of innocence, with the Supreme Court noting that proof cannot ever be displaced by suspicion, not matter how strong.
All of these provisions cumulatively create an atmosphere where it is virtually impossible for an accused to defend or safeguard his rights. Justice Katju, in a 2011 judgment noted that the provisions of the UAPA must be read in consonance with fundamental rights and not in isolation, noting that “If there is a statute which appears to violate it (the constitution) we can either declare it unconstitutional or we can read it down to make it constitutional.” The recent invocations of the UAPA show that this is not being done.
In 2010, India became a member of the Financial Action Task Force (FATF), an international body that combats the financing of terrorism through various counter measures. It was this membership that was used by the government to support its amendment of the already draconian UAPA. The 2012 Amendment, too, added provisions that only further the trend of State inhibition of human and civic rights. It added a provision that holds ‘person’ to include associations of people, whether incorporated or not.[vi] The Standing Committee report noted that apprehensions had risen over whether the Bill would enable investigating officers to threaten and harass innocent people. The rather inane response of the Home Secretary to this was that since some unregistered ‘clubs’ in the North-East procure and hold funds for terrorist groups, and these bodies would be covered by the Amendment.
Concerns have been raised by Human Rights Watch that this amendment would allow the police to charge a person merely on grounds of contact with a suspect. Similarly, any group of friends could be deemed to be in an ‘association’ by the police. The Amendment also increased the maximum ban allowed on proscribed associations from two years to five years.[vii] There is an immense possibility of gross misuse of this clause, especially as the State’s rationale for banning the organisation need not be revealed to them.
Economic offences, too, have been included within the ambit of terrorism.[viii] Thus, an economic offender would be subject to the harsh UAPA law as opposed to the other ordinary laws such as the Indian Penal Code. This has been strongly criticised as redundant and unnecessary. The effect of such amendment is to make economic offences punishable with a sentence of five years to life imprisonment. The rationale behind this addition to the statute was that it had been noted that there had been high quality counterfeiting of Indian currency by “one particular country” to directly fund terrorism as well as to tamper with India’s financial well-being. It was to combat these “sovereign factories” that the provision was included. The possible indirect application of the clause to minor counterfeiters was believed to be efficiently neutralised by the use of the term “high-quality counterfeits” in the Act. In reality, however, it can be seen that UAPA has been invoked in cases of intra-nation counterfeiting , which has been covered by the Indian penal Code, 1860 . Thus, domestic counterfeiters are being convicted under draconian terror laws, showing a decided lack of nexus between the application of the act and its primary objective.
The lack of a single effective and substantive safeguard further enhances the possibility of extreme misuse of this statute by the state- a result that was foreseen by the legislators while drafting this law. The Standing Committee report noted that a need was felt by the members of the committee for some safety measures. In response to these concerns raised, the Home Ministry commented that “where any person, any member of a firm or any member of a company is not associated with it, he can produce evidence for that purpose to show that he is not associated with that. That is the safeguard. He can produce evidence to show that he is not associated.” This argument is intrinsically flawed- it speaks of a safeguard that makes an accused prove her own innocence- thus shifting the burden of proof away from the State and onto the shoulders of each individual accused. This cannot in any way be said to safeguard her rights- rather, it places a heavy burden on the accused .
The UAPA has proven to be a deeply regressive legislation that has, and will continue to be used to promulgate police abuse of civil rights of Indian citizens. There is an immediate need for some sort of checks and balances system that will safeguard the interest of any innocent accused while still enforcing the objectives and rationale behind the formation of such and act. A simple yet effective safeguard might be a periodical review of the Act and sunset clauses . Another possible step towards lesser abuse of the law would be to re-define terrorism with a reduced ambit. A clear nexus must exist between the objectives of the law and the implications of its provisions. Though internationally there has never been consensus of the definition of the term ‘terrorism’, the upcoming Comprehensive Convention on International Terrorism has proposed a more reasonable definition of a terrorist act, including illegal and intentional acts causing death or grave injury to a person, serious damage to property, and damage resulting in major economic loss when the object of the act is either to intimidate a population or to compel a Government to do some act. This definition, while satisfying any duties India might have with respect to its membership in the FATF, also requires a terrorist act to be of sufficiently grave nature to warrant the application of its draconian provision.
At the time of each Amendment, there were assurances that there would and could be no misuse of the law. However, various situations have proven these guarantees untrue. As has been noted in a citizens’ petition against the Amendment ; “In delivering justice, laws cannot rest on assurances.” The lack of checks and balances create a system starkly biased in favour of the State. The State has received arbitrary powers through use of broad and sweeping definitions.
The enactment of each Amendment drew cries of outrage from human rights groups and civil liberty associations in India; these subsided with unresponsive legislators and indifferent citizens. The case of Professor Saibaba demonstrates the active and immediate threat continuously presented by the UAPA even today.
[i] S. 4, Unlawful Activities (Prevention) Amendment Act, 2008.
[ii]S. 3, s. 6 Unlawful Activities (Prevention) Act, 1967.
[iii] S 3(2), Unlawful Activities (Prevention) Act, 1967.
[iv]S12, Unlawful Activities (Prevention) Amendment Act, 2008.
[vi] S. 2(ii), Unlawful Activities (Prevention) Amendment Act, 2012.
[vii]S. 3, Unlawful Activities (Prevention) Amendment Act, 2012.
[viii]S. 4(i), Unlawful Activities (Prevention) Amendment Act, 2012.
Avani Chokshi is a 2nd year student in the West Bengal National University of Juridical Sciences, and is interested in human rights law.