This article is co-authored by Soumya Verma and Anushka Singh, from NLIU, Bhopal and WBNUJS, Kolkata, respectively.
Table of Contents
History of the so-called Draconian Rule, i.e. UAPA
The need for the UAPA (The Unlawful Activities and Prevention Act) was realized by the National Integration Council[i], which appointed a committee on National Integration and Regionalism. The purpose of its crafting was to look into the aspects concerning Sovereignty and Integrity of the country. This is a product of the 16th Constitutional Amendment Act of 1963. The bill passed by both the houses of the parliament and was granted permanent status on December 30, 1967, after obtaining assent from the president.
The UAPA Amendment Act of 2004 added some of the provisions from the scrapped POTA[ii] (Prevention of Terrorism Act 2002). The journey of this law has always been remarked as draconian. It abridged people’s right to freely express their dissent, which is guaranteed under the Indian Constitution[iii]. For instance, at the time of pre-independence, Criminal Law coined the term ‘Unlawful Association’ in 1908 through which it criminalized even a mere association of people during the Indian National Movement[iv]. Post-independence, UAPA continued the regime of strict ruling and curbing citizens’ right to dissent. This became a widespread crisis in the 1960s when even a flinch in favor of the Naxalite community agitated the government, which led t allegations of alleged crimes under the Act.
Scholars and Legal luminaries have always criticized the Act for violating “freedom of speech and expression” under Article 19(1)(a)[v] of the Constitution of India. However, the government has always taken resort under Article 19(2)[vi], which grants the state to impose reasonable restrictions on account of public order, friendly relations with other states, sovereignty, and security.
However, criminalizing someone to put forth his/her’s thought and to publish it, is an absolute example of using unfettered power, which has become the basis of such hue and cry. Likewise, the introduction of UAPA is said to be an obstruction for the proper implementation of fundamental rights guaranteed. As this draconian law somehow manages to infringe the rights, being it the amendment of 2019 or creation of National Counter Terrorism Centre, which is a subsidiary organization under UAPA itself that wields without State Government’s interference. The Central Government enjoys banning the organizations by terming them “Terrorist Organisations” on account of reasonable restriction by simply announcing them as ‘unlawful,’ which UAPA itself empowers. This was given as an official power through Amendments of 2004 and 2008.
Explaining in brief: In 2004 Amendment, section 2(O) was added which defines the unlawful activity as any action taken by an individual or association (whether by committing an act or by words, either spoken or written, or by visible representation or otherwise), (i) which is intended, or supports any claim to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or intends to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or intends to cause disaffection against India.
Constitutionality under Threat
The Union Home Minister introduced the Unlawful Activities (Prevention) Amendment Bill, 2019, to further intensify the objective of the previous amendments to curb any unlawful activity of an organization or an individual. The previous amendment under various regimes worked towards making the Act more and more hostile. However, the current amendment of 2019 has attracted much criticism from citizens of all spheres of life, due to its inhumane and unconstitutional clauses. The critics fear that the new amendment gives unfettered discretion to the government in deciding if a person is a terrorist or not.
The government amended section 35 of UAPA to include an individual to be categorized as a terrorist. This section gives unfettered power to the government to categorize anyone as a terrorist. It violated the basic tenets of fundamental rights laid down in part III of the Constitution of India. A person’s reputation is inseparable from one’s personality and cannot be allowed to be tarnished. However, the present law is in total contravention of the above right. It tags a person as a terrorist without giving him any chance to prove his guilt. Moreover, the Act does not specify the difference in the categorization of an organization as a terrorist and that of an individual as a terrorist. The latter carries with itself far more prolonged consequences and repercussions for a person’s liberty and to live freely with dignity.
A PIL was filed by Sajal Awasthi, challenging the vires concerning the UAPA Amendment Act of 2019. The PIL stated that the law does not provide any sort of reliable safeguards against the high possibility of misuse of such a discretionary power being conferred upon the authorities. The nature of determination under Section 35, for an individual, warrants judicial application of mind rather than being exercised by the authorities. The PIL also pleaded to cut down on the powers of the authorities to terminate any person as a “terrorist.”
The mandate of Article 14 of the Constitution prohibits the conferment of unguided and unrestricted power on any authority. Hon’ble Supreme Court in the case District Registrar and Collector v. Canara Bank[vii]observed to the effect that: “Where power is open to be used disproportionately than the purpose achieved is invalid in the absence of guidelines or principles or norms which are ‘essential’ for the exercise of such power.”
Moreover, the right to dissent is a fundamental right and is part and parcel of free speech. Dissent in a democratic government is proof of its healthy working. The right to dissent and free speech and expression cannot be terminated except in special circumstances mentioned in Article 19 of the Constitution. The Supreme Court asserted in the case of Romesh Thappar v. State of Madras[viii] that “The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.”
Criminalising
The Act has been categorically used by the central government to systematically suppress the dissenting voices that it considers to be “threatening” the agenda and the ideology of the ruling party. However, it is not the first time that a government in power has tried to curb the dissenting voices. The systemic oppression of the dissenting voices has happened since the inception of this draconian law. However, since the accession of the NDA government at the center in 2014 and even more so since the enactment of the UAPA Amendment Act 2019, there has been a drastic increase in the number of arrests under UAPA. Most of the people booked under this Act have been recognized as journalists and activists. Astonishingly, most of them booked under this Act are not guilty of any cognizable offense under the Indian Penal Code. Their association does not merely amount to committing an offense.
Gowhar Gilani, a Kashmir based author, and journalist was booked under the UAPA in April 2020 for allegedly indulging in unlawful activities through his social media posts.[ix]
Currently, the fascist government, with the help of Delhi Police is on a spree to arrest student activists protesting against the discriminatory Citizenship Amendment Act and Police brutality against the students of various Indian Universities. The Delhi Police arrested Natasha Narwal, a student activist, and held her captive for 14 days in Tihar Jail[x]. She is now booked under the draconian UAPA for inciting communal violence in north-east Delhi. The FIR has been filed without any substantial evidence alleging her inciting the violence.
The Delhi police also booked Safoora Zargar, an MPhil. Student, though now released on bail and Meeran Haider, member of JCC under the UAPA for allegedly inciting violence in north-east Delhi. However, the police claim to have substantial evidence for the same but failed to enlist any when asked by the journalists and citizens from all over the country.[xi]
The Executive Director of Amnesty International India[xii], who was against this Act of the government, said, “The Government of India must stop the crackdown on dissenting voices. The use of India’s primary counter-terrorism law UAPA against two students involved in protests against the discriminatory Citizenship (Amendment) Act is an extension of the crackdown on anyone critical of the state.” He also added, “A pattern is emerging of the UAPA being used as a tool to repress dissent – further recent examples of the law being abused by the authorities include the cases of photo-journalist, Masrat Zehra, who has been charged over her social media posts from Kashmir which the authorities consider anti-national.[xiii] Human rights defenders, Anand Teltumbde and Gautam Navlakha were also arrested under this draconian law for allegedly having links to the January 1 Bhima Koregaon violence.
It is clear from the above cases that the present government has merely used this Act to curb the freedom of speech and expression by suppressing the dissenting voices instead of arresting the organizations perpetrating terrorism in the country. The Act provides for booking a person as a terrorist if suspected of committing any unlawful activity. It also gives resurrecting powers in the hand of investigating agencies like NIA and the police to investigate the case. It also gives the power to take the accused into judicial custody for up to seven years. The lack of third-party involvement in the investigation of cases is a severe miscarriage of justice. It also leaves space for a corrupt investigation as a vendetta against the activist to curb the freedom of speech and expression.
Criticism and the International Mandate
There was and is a rush of sharp criticism and aversion from the parties in opposition and the people of India. People fear that this is an erroneous law which not only takes away their right to live with dignity but also distraught their reputation in society. The procedure that it follows, of not letting the aggrieved reach out for help and tagging him/her a terrorist already, is a sheer use of unfettered power, and unchanneled discretion. This amendment has garnered people’s voices raising slogans like, “NO APPEALING, NO ARGUMENTATION, NO LAWYERING.” Another point of discontent was section 39 of UAPA, which again stifled the freedom guaranteed for free speech and expression. Section 39 criminalizes a person who “invites” support, whether it is non-monetary or property support, “to further the activity of a terrorist organization.” It also criminalizes someone who addresses a meeting or assists in arranging or managing a meeting that will “support” or further the activity of a terrorist organization. It even criminalizes someone who is simply to be addressed by a person who associates or professes to be associated with a terrorist organization. This intensifies the already existing rigid provisions. Also, the ambiguity begins through the usage of the word “support.” From the clauses mentioned in the section, it can be inferred that how even writing an article on an encounter of a terrorist can garner the attention of the masses and if the article or the relevant news turns out to be fake, it is perceived that the article supports a terrorist group or organization. Furthermore, it is said that this section was introduced by the government to ban writing anything positive about the CPI (Maoists) ideology, as the government wanted to break all the links from Naxalites inhabited in the heart of India.
South Africa propagated something alike, the apartheid government that existed did not allow people to write or publish anything about a “banned” person, to keep him away from media coverage and other sorts of publications. The USA propagated McCarthyism, in which political opponents of the US government were censored if found guilty of invigorating violence against the government.
At the international front, freedom of speech and expression is given utmost importance considering it divine in its pure form and is firmly entrenched in human rights law. Article 19[xiv] of Universal Declaration of Human Rights ingrains freedom of speech and expression, vis-a-vis Article 19(2)[xv] of International Covenant on Civil and Political Rights, Article 13[xvi] of American Convention on Human Rights, Article 9(2)[xvii] of the African Charter of Human and Peoples’ Right, and Article 10[xviii] of the European Convention on Human Rights. All the stated international conventions speak of the right to freedom of speech and expression. This right is considered to be indispensable and of special significance to provide a channel to the voices of the masses, aggrieved or not.
Conclusion
To conclude the article, it is to be understood that rights are created for people to protect their interests. Not superficially but with an obligation, i.e., to provide justice if some abrupt law makes way or hinders the progress of welfare promised, by respective governments or the lawmakers. Though reasonable restrictions must be imposed if the government deems necessary to maintain public order and to protect the sovereignty of the country along with its security. But if a law which has been introduced attracts a chorus of disapproval, then its usage and application should be avoided or should be gone into by the authorities for its proper implementation. On no ground, a person can be denied freedom of speech and expression in India specifically. Curbing political dissent may attract delegitimization which renders certain groups, ideologies, or beliefs criminal. Nevertheless, at the same time, it cannot be forgotten that restricting authors to write or publish and brand someone as a terrorist without any scrutiny or following a procedure established by law, bears the autocracy of the government, which ought to be criticized. Having such laws made in India where there exists democracy, tarnishes the very principle of providing freedom which is guaranteed under the Constitution. Provided with strict adherence i.e., “Reasonable Restriction”. Here, there is no scope of reasonable restriction in expressing one’s views as the reasonability needs not to be explained. “Justice should not only be done but should manifestly and undoubtedly be seen to have been done.”
References
[i] It is a government advisory body, formed in 1961. The Prime Minister of India is the chairman of this body. See also https://www.thehindu.com/news/national/National-Integration-Council-reconstituted/article16365938.ece
[ii] Prevention of Terrorism Act 2002, Act No. 15 of 2002, See also https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/70885ebca6462000c125770400454b71/$FILE/THE%20PREVENTION%20OF%20TERRORISM%20ACT,%202002.pdf
[iii]Indian Constitution, Jan. 26, 1950, See also https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
[iv] Jabez T. Sunderland, The New Nationalist Movement in India, The Atlantic, Oct. 1908, See also https://www.theatlantic.com/magazine/archive/1908/10/the-new-nationalist-movement-in-india/304893/ (This movement was a series of activities to end British Rule in India, (1857- 15 Aug 1947)
[v] India Const. Article 19(1)(a) (Constitution of India guarantees to all its citizens the right to freedom of speech and expression).
[vi] India Const. Article 19(2) (Constitution authorises the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”).
[vii] District Registrar and Collector v. Canara Bank, 1 SCC 496 (2005).
[viii] Romesh Thappar v. State of Madras, AIR 1950 SC 124.
[ix] Naseer Ganai, Kashmiri author and journalist Gowhar Gilani, booked under UAPA, moves to HC, Outlook India, Apr. 24, 2020, https://www.outlookindia.com/website/story/india-news-kashmiri-author-and-journalist-gowhar-geelani-booked-under-uapa-moves-hc/351368
[x] JNU student and activist Natasha Narwal charged under UAPA, The Hindu, May 30, 2020, https://www.thehindu.com/news/cities/Delhi/jnu-student-and-activist-natasha-narwal-charged-under-uapa/article31708244.ece
[xi] Adil Khan, Fear, Anger as India continues to arrest Muslim Activists, Gulf News, May, 10, 2020, https://gulfnews.com/world/asia/india/fear-anger-as-india-continues-to-arrest-muslim-activists-1.71422698
[xii] The Government of India must stop using draconian laws against dissenting voices, Amnesty International India, Apr. 22. 2020, https://amnesty.org.in/news-update/government-of-india-must-stop-using-draconian-laws-against-dissenting-voices/
[xiii] UAPA charge on J&K journalist is misuse of power, effort to terrorise media: Editors Guild, The Print, Apr. 21, 2020, https://theprint.in/india/uapa-charge-on-jk-journalist-is-misuse-of-power-effort-to-terrorise-media-editors-guild/406263/
[xiv] G.A. Res. 217 (lll) A, Universal Declaration of Human Rights, Art. 19, (Dec.10, 1948). See also http://www.un.org/en/documents/udhr/.
[xv] International Covenant on Civil and Political Right art. 19(2), (Dec. 16, 1966), 999 U.N.T.S. 171, See also https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[xvi] Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, Art. 13, 22 November 1969. See also https://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.pdf
[xvii] Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), Art. 9(2), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), See also https://au.int/sites/default/files/treaties/36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf
[xviii] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, Art. 10, 4 November 1950, ETS 5, See also https://www.echr.coe.int/Documents/Convention_ENG.pdf
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