“UAPA : What is the Stand of Political Parties” : Public Meeting organised by NCHRO Kerala Chapter at Gandhi Park, Trivandrum.
18 April 2019
On 17 April, the NCHRO Kerala Chapter with the support of human rights activists conducted a public meeting at Gandhi Park, Trivandrum. The theme of public meeting was “UAPA : What is the Stand of Political Parties”.
Adv Bhavani Mohan, President NCHRO Tamil Nadu Chapter, prepared and presented the ambiguous nature of Unlawful Activities Prevention Act (UAPA) which gives unreasonable power to authorities to violate constitutionally guaranteed rights at both the individual and community level. Having the support and real-life examples of victims, the presentation included the ravaged lives of innocent people who went through false or careless prosecution in UAPA cases.
Shri Vilayodi Shivan Kutty, NCHRO Kerala State chapter president chaired the meeting. NCHRO National Secretary, Reni Aylin, Adv Shanavas from Minority watch Group, Adv P J Manual, Activist against SARFASI, Saleem Karamana, Popular Front Trivandrum District President, A M Shanawas and K P O Rahmathullah etc. were addressed the gathering.
Our 2019 general election—like previous contests—will be the largest democratic exercise in world history. In a democracy like India, policies start with the electorate. We have political parties which reflect people aspirations and put forward their goals and programmes when they compete in elections. Political parties perform an important task in government. They bring people together to achieve control of the government, develop policies favorable to their interests or the groups that support them.
Bills tabled in the legislature become law if approved by the majority of members. But that does not mean the law is just or fair. There are many laws approved by the majority that are unjust, unconstitutional or contrary to human rights. One such law is UAPA. In Parliament, MPs must ensure that proposed laws adhere to the principles of the rule of law, justice, human rights and constitutionalism. This is also why debates in Parliament are so very important, as this is when Bills must be scrutinised in detail. Most of our MP’s didn’t aware about the dangers of UAPA and its draconian provisions.
When MPs think that their party orders are more important than their responsibilities to their constituents as parliamentarians, that is when draconian laws like UAPA become laws. Enacted in 1967, UAPA initially gave powers to the Central government to impose all-India bans on associations. The process of banning associations could simply be done by the government announcing them as ‘unlawful’ and hence banned. This 1967 law then underwent a few amendments that expanded its jurisdiction: in 2004, to include provisions of the repealed POTA (Prevention of Terrorism Act) to include terrorist acts and organisations; in 2008 (following the terror attack in Mumbai) to extend the maximum period in police custody and to include incarceration without a chargesheet and restrictions on bail; in 2012 to expand the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.
If the UAPA 1967 made an anti-secession law a permanent requirement, the subsequent amendments made the anti-terror law permanent. Under the UAPA, an accused can be denied the right to proceedings in an open court, which is an essential element of a fair trial, admit in-custody confessions and tacitly sanction torture. Moreover, the criminal procedure code – the police officers’ and judges’ rule book – prevents courts, without prior permission of the government, from prosecuting public servants for offences committed while “acting or purporting to act” in the discharge of official duty. Government permission to prosecute members of law enforcement agencies accused of torture and extrajudicial killings is often, however, not forthcoming. “Bail” is difficult under UAPA because victim have to prove that prima facie there is no case.
Innumerable complaints of UAPA’s selective and discriminatory use against India’s Muslim minorities and other vulnerable communities, and its cavalier and irresponsible application to offences not even remotely connected with terrorism. Muslims are first to be arrested and interrogated after any terrorist incident, even when the victims are Muslims, and although strong evidence has recently emerged of a well-ramified pro-Hindu terrorist network.
Those who were working with Dalit and tribal groups for the protection of their land, resources and representing the interests of some of the most marginalised communities in backward regions are the new target group to book with UAPA along with Muslims.
The new threat to the nation could be an advocate Galding – a lawyer who has been representing the most oppressed and marginalised in courts for the last 25 years or advocates like Upendra Nayak of Odisha, Murugan of Tamil Nadu and Satyendra Chaubey of Chhattisgarh, who have been implicated in the cases of their own clients. It could be journalists like Santosh Yadav or Somuru Nag in Bastar, an activist like Khurram Parvez in Kashmir, Prof Saibaba, Thirumurugan Gandhi, Sudha Bharadwaj, Arun Ferreira and countless others. Common to all these people is that they seek to represent the interests and security of people who have been excluded from access to both rights and resources. And common to all is they were charged under one exceptional law or the other. The police, with the blessings of their political masters, have continued to use UAPA as a blunt instrument and the judiciary has been generally happy to go along.
There are several recent instances that law enforcement agencies working to shield or target persons based on their political affiliations. For instance, consider the NIA’s strangely botched up investigation against former Rashtriya Swayamsevak Sangh member Swami Aseemanand, for the Samjhauta train bombings, was acquitted without ‘Evidence’. The same is the modus operandi in many terror cases like Mecca Masjid, Malegaon, Ajmer etc.
The government claims that UAPA is necessary to deal with “terrorism”, by which one would imagine that it allows the government to prosecute those who commit grave acts of violence. However, most prosecutions under UAPA are not for acts of violence, but for membership of banned organisations. This is how the government suppresses legitimate democratic activity. The government first proscribes organisations and then brings cases against people for being members of these organisations. it gives the government unbridled power to ban organisations and to label anyone a threat to the state, with little fear that the courts will intervene.
National Crime Records Bureau (NCRB), from 2014 to 2016, to show some staggering statistics related to the failure of UAPA. Inspite of an average of over 930 cases registered each year, the pendency rate remained astonishingly high, over 90%. The data has other shocking revelation that only 42% of the cases resulted in chargesheets while in 58% of the cases, police closed the cases. Average rate of conviction has stood at 2.36% and the remaining 97.64% cases either end in acquittal or linger on. Given the enhanced powers that UAPA gives to police over the accused, setting up of special courts for speedy trials, data shows the possibility of lowered threshold of investigation and increased detention periods of suspects on “flimsy charges”.There is no need for these additional laws. The criminal laws in the IPC are sufficient to deal with terrorism.
Without the support of political parties it would be difficult for individual Members of Parliament, as legislators and/or as members of the Executive, to organise themselves effectively for the task of promoting the national interest—including by challenge to the Government, where that is necessary and appropriate—and ensuring that proposed new laws are proportionate, effective and accurately drafted. Change happens when people come together to demand it. Proponents of these laws often argue that the country is in the grip of multiple insurgencies seeking to dismember the country. Civil society groups wholeheartedly agree that terrorism in all its forms must be resolutely countered, but the means employed by constitutional democracies must not violate the core rights and freedoms that are the bedrocks of the society. Parliament can do away with these draconian laws just like it did with previous anti-terror laws, TADA and POTA.
Over the years, ‘UAPA’ victims have been many innocents. Extraordinary laws in our country become means to settle political scores, neuter political opposition and stifle political representation. This state authoritarianism, raise questions of public accountability and rule of law as the foundation of democracy. This gathering demanded for an unconditional repeal of UAPA and that the arrested “prisoners” must be released on an immediate basis, and drop all charges against those engaged in peaceful dissent. There is no democracy without dissent.