UAPA undermines personal liberty
Our worst fears, when the Unlawful Activities (Prevention) Amendment Bill was approved by Parliament in August 2019, have come true. Since then, many of our citizens, including journalists, students and academics, are being prosecuted as terrorists only with the intent to silence them. The home minister assured us in the Rajya Sabha, on August 2, 2019, that “Nobody’s human rights will be infringed in this Bill. If a person does terrorist activities, plans to commit terrorist acts, aids in terrorism or is linked to any terrorist organisation, then he will be declared as a terrorist…” In response, we, while opposing the Bill, expressed our concern that this law is likely to be used against our own citizens, for reasons unrelated to any terrorist act, who then will languish in jail, only to be acquitted later. We, however, expressed our support to the government’s fight against terrorism.
Regrettably, the definition of a “terrorist act” under the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA) substantially differs from the definition promoted by the United Nations (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. In 2006, the Special Rapporteur said that to call an offence a “terrorist act”, three elements must be cumulatively present — the means used must be deadly; the intent behind the act must be to cause fear amongst the population or to compel a government or international organisation to do or refrain from doing something; and the aim must be to further an ideological goal.
UAPA, on the other hand, offers an overbroad and ambiguous definition of a “terrorist act” which includes the death of, or injuries to, any person, damage to any property, an attempt to overawe any public functionary by means of criminal force, and any act to compel the government or any person to do or abstain from doing any act etc. It also includes any act that is “likely to threaten” or “likely to strike terror in people”, giving unbridled power to the government to brand any ordinary citizen or activist a terrorist without the actual commission of these acts.
In fact, UN Security Council resolution 1456 of January 2003 states that States must ensure that any measure taken to combat terrorism must comply with all their obligations under international law, in particular, international human rights, refugee and humanitarian law. But this resolution remains conspicuously absent from the preamble of UAPA. International laws and conventions must not be cherry-picked by the government to suit their objectives.
Since the notification of the amended UAPA, people are being prosecuted without any evidence of any alleged “deadly means used”, or attempted to be used, or, for that matter, in preparation thereof. Even taking the broad definition of a terrorist act into account, most prosecutions are based on inferences drawn from speeches made, or alleged conspiracies based on alleged statements obtained and often coerced. Statements made to a police officer though in law are not admissible but are relied upon before trial.
According to National Crime Records Bureau data, of the 1226 cases under UAPA filed in 2019, a jump of 33% from 2016, chargesheets were filed only in 9% of the cases and the conviction rate in 2019 was a mere 29.2%. This data gives an indication of how a prosecution launched on the basis of an allegation that an individual is a terrorist can destroy innocent lives.
Besides, bail is rarely granted. Under UAPA, a person shall not be released on bail if the court, on perusal of the case diary or the chargesheet, is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true.
After summoning the accused, it is unthinkable that the court will ever hold that the chargesheet does not disclose a prima facile case. Consequently, denial of bail is the norm.
The fact that chargesheets are filed in only 9% of the cases is evidence of the fact that in 91% of the cases, persons are arrested and denied bail for a maximum of six months, within which the chargesheet is to be filed. Even if the charges are dropped, in the public eye, the individuals concerned will have lost their reputation and their options to seek and avail opportunities in life for a dignified existence. The opportunities for gainful employment would also be limited. This violates their right to life and personal liberty. Their prosecution itself jeopardises the prospects of their livelihoods even in the absence of a chargesheet or their conviction.
While we profess to support the cause of liberty and freedom of expression in international fora, our actions at home betray the lip service we pay in our pretence to protect these fundamental rights. Right to protest is one such right. However, the manner of protest may be legitimate in the eyes of some and illegitimate in the eyes of the government. The government’s perception cannot legitimise prosecution under UAPA. The constitutional contours on the basis of which persons are prosecuted under UAPA are clear, but our government acts in utter disregard of well-established norms.
As penal statutes visit citizens with dire consequences, they must be strictly construed. Personal liberty is at the heart of our constitutional freedoms. It is time for the courts to see through the design of a government refusing to value what the constitution obligates it to value.
Kapil Sibal is a former union minister and is currently a Rajya Sabha MP, a senior Congress leader, and senior advocate
The views expressed are personal