THREE MONTHS after bomb explosions killed over 60 people in Jaipur in May 2008, police swooped down on a Muslim neighbourhood in Kota city, 240 km south of the state capital. Several men were picked up or threatened into surrendering. Police told the frightened men that they were only wanted for questioning and won’t be charged. But days of illegal detention and torture later, they were indeed charged: with spreading communal venom against Hindu deities; speaking against national unity, integrity and secularism; involving Muslim youth in anti-national activities; and carrying on activities of the outlawed Students Islamic Movement of India (SIMI). Neither the FIR nor the chargesheet spoke of specific terror acts. Nonetheless, in the court, the prosecution made elliptical allusions to the Jaipur blasts, and to serial blasts in Ahmedabad that killed 56 two months later. Before long, the news media had named them as key suspects.
The men were eventually acquitted, but after spending nearly five years in prison. Thirty-eight of the 43 prosecution witnesses said the police had forced them to sign blank pages. The ‘jihadi’ literature the police had allegedly seized from the men was found to have been published before SIMI was banned in 2001. The case fell as the prosecution had not taken the Centre’s sanction as required to invoke parts of the Unlawful Activities Prevention Act (UAPA).
This story is representative of the way UAPA cases are prosecuted. Elusive charges are matched by infirm evidence. Media trials link the accused to terror acts they are not formally charged with. Bail pleas are repeatedly rejected. The prosecution hopes no one will notice the missing Central sanction. Only, not all accused are as lucky. A court in Ujjain, Madhya Pradesh, ruled that a lack of credible independent witnesses need not deter the war on terror as national security outweighs the commitment to the rule of law and justice.
Some argue that the innocent are framed because biased, ignorant and illintentioned policemen misuse the law. It is implied that the UAPA could possibly be employed in good ways. But look closely at the heart of UAPA. It runs on the twin arteries of an accused’s membership in an unlawful organisation and his involvement in conspiracies to further the activities of that organisation. Now, it is notoriously difficult to pin down nebulous charges of conspiracy as well as membership to an organisation that no longer legally exists. Not surprisingly, police in Khandwa district of Madhya Pradesh ‘seized’ membership forms of SIMI, duly filled in by the accused, conveniently lying around their homes. Seized literature constitutes the bulk of evidence of conspiracy. Last year, a judge in Allahabad in Uttar Pradesh ruled that ‘Maoist literature’ allegedly seized from journalist-activist Seema Azad and her husband, Vishwavijay, was sufficient to jail them for life. In 2010, a court in Chhattisgarh convicted activist Binayak Sen based on a recovery from his house of magazines and pamphlets, all of which were otherwise freely available.
Each amendment to UAPA, first enacted in 1967, has brought into its ambit an ever-growing circle of acts and actors, strengthening its subjective basis by turning suspicion into evidence. When Prevention of Terrorism Ordinance was promulgated in 2001, S Jaipal Reddy, then in Opposition and now a Union minister, laid out four grounds of objection: “First, it is destructive of the basic democratic liberties; second, it has been empirically demonstrated in our own country that this is a remedy worse than the malady; third, it has been prompted by malignant political motives; and fourth, it jettisons the basic established principles of criminal jurisprudence without a necessary protective shield.”
But an attack by gunmen on Parliament in December 2001 weathered such resistance. In 2002, the ordinance was legislated into law. The killings of 165 people by Pakistani gunmen in Mumbai in 2008 drummed up support to make the law even tougher. Short of admitting confession as evidence — which LK Advani wanted — the UAPA as amended in 2008 looked remarkably similar to the Terrorist and Disruptive Activities (Prevention) Act (TADA). (P Chidambaram had piloted that law, too, as Minister of State for Home in 1987.) Punjab Police’s partiality towards TADA’s provisions during the 1980s and 1990s, or Maharashtra Police’s quick recourse to Maharashtra Control of Organised Crime Act (MCOCA) of 1999 over ordinary criminal law, is well documented. Yet, the ‘improved’ UAPA extended the period of remand from 90 to 180 days and rendered the bail provisions extremely stringent. Appealing to pass the amended Bill without a referral to a Standing Committee, Chidambaram assured that Parliament could “revisit the Bills and make the improvements in course of time… If any improvements have to be done, we can always come back and look at the Bill when we meet again in February.” That amendment made funding terrorism and holding terror camps into offences. Soon, these charges began surfacing in FIRs with the sketchiest details.
LAST MONTH, Parliament returned to the law, but only to add more muscle, explicitly labelling economic offences as terror acts. Its Section 15 now declares production and distribution of “high-quality counterfeit currency” a terrorist offence. Until now, it was a financial offence under Sections 489B, 489C, 489D of the Indian Penal Code. But what firmly entrenches UAPA into the slippery territory of conspiracy, intentions and ‘knowledge’, and away from specific, tangible and verifiable acts, is the introduction of a new section that criminalises fund raising “from a legitimate or illegitimate source… knowing that such funds are likely to be used… by a terrorist organisation”… “notwithstanding whether such funds were actually used or not used” for a terrorist act. That monies could be used for terrorist acts will be difficult to prove in court, but will effectively render even legal transactions suspect: a movement raising funds for campaigns or a madrassa for renovation; even parents receiving remittances from children overseas.
The new amendments also bring offences by companies, societies and trusts into the ambit of terrorist acts, calling for punishment no less than seven years and up to life if found guilty, in addition to fines running into crores of rupees. It is not as if income tax raids are unknown as weapons to deal with political opponents. The charge of terrorism will now scale up persecution to another level. Recall the raids on the industrial group of the Rahejas after Outlook magazine, which they own, published unflattering stories about then prime minister Atal Bihari Vajpayee’s family; or the hounding of TEHELKA after its exposé on graft in defence deals in 2001. We must be blind to think that granting sweeping powers to the police will not multiply its tyranny. That an amendment moved by a Left MP to exclude trade unions from UAPA was defeated in the Rajya Sabha signals that the law would be an instrument to crush political dissent.
The most Orwellian character of the new UAPA is the expansive definition of person as “an association of persons or a body of individuals, whether incorporated or not”. Going beyond entities recognised in law, the amended Act grants police the right to first identify an association, and then attribute terrorist criminality to it. Thus, a group of students that meets to discuss a film on weekends could be deemed an unlawful association!
Asked about the dangers of giving sweeping powers to the police, the Union home ministry said an innocent person “can produce evidence to show that he is not associated”. It gave a bland assurance in Parliament that the law would not target particular communities, ignoring the history of its use. No study has ever shown that tough laws deter terrorism. Instead, we have ample evidence of such laws grossly violating citizens’ rights: illegal detentions, torture, false cases, long periods of incarceration — a wholesale recipe for ‘disaffection’.
In the decade it existed, 76,036 individuals were arrested for crimes under TADA. Only 1.5 percent were convicted. When POTA was repealed in 2004, only 13 of the 1,031 persons arrested under it had been convicted. A national audit of UAPA trials and convictions is yet to be undertaken, but we do know that the investigating agencies dress up their conviction rates by including convictions under Arms Act or Explosive Substances Act under their terror conviction records (as they did in response to Jamia Teachers’ Solidarity Association’s report, ‘Framed, Damned, Acquitted’). Abuse is wired into the very DNA of UAPA. We can only repeal it, not humanise it.