Draconian Laws & The Democracy : Between the NIA and UAPA Amendment – NCHRO Seminar in Chennai.
The amendments to the Draconian Unlawful Activities Prevention Act (UAPA) and the NIA Act is the latest of the legislations carrying the potential for use against civil and human rights activists, dissenters, political opponents and members of the minority communities. All draconian laws were largely misused by successive governments. Unfortunately, the UAPA is no different from the others. Activists working to protect the rights of India’s most vulnerable communities, and dissenting voices against the Government, have been arrested under these laws. Under the existing Unlawful Activities (Prevention) Act, 1967, the Centre could notify organizations as ‘terrorist organizations’ by adding them to the First Schedule of the Act under Section 35(1)(a). The amendment authorizes the Centre to designate individuals as “terrorists” by adding a Fourth Schedule to include a list of individuals. A person could be convicted only after the due process of law. Now, the government can declare anybody to be an anti-national / terrorist if oppose the government. The state have now wide authority to hold and jail people without charge, usually even before a crime has been committed, and to declare individuals as terrorists without a trial.
What is the real picture of our anti-terrorist laws? About the TADA and the POTA, it is shocking that in 1994 more than 70,000 people were arrested under the TADA. In 1990, 5,000 people were arrested under the TADA in Gujarat alone. Target of the TADA is terrorists, But instead of terrorists, people like trade unionists, activists, political rivals, minorities and journalists were brought under the purview of this Act. Again, the UAPA law has been abused by governments to target defenders of human rights who are working with the poor and marginalised communities, and those who criticize government’s inaction or excesses.
The UAPA is not meant for convicting people, it used to detain them on frivolous charges. The accused has to go through a long legal process and incarceration by the time he is acquitted, but a considerable time passes by and the person’s life is ruined. No data or information was produced to show that the individual state police forces and the Central Bureau of Investigation had failed to prosecute terrorist offences. The amendment has provisions that permit the investigating agency six months time to file chargesheet as against the three at present. The original law does not have the provision for anticipatory bail. Bail is difficult because victim have to prove prima facie that there is no case.
It was in December 2008, in the wake of Mumbai terror attack; the parliament passed NIA Act and formed National Investigation Agency. The act was passed in the backdrop of a crafted public conscience. Human right activists and civil society had strongly voiced their concerns and pointed out the dangers the bill posed. A scrutiny into the cases registered under NIA act since 2008 will prove that the concerns raised were not out of place. Using the draconian law UAPA, NIA has been turned into a totally repressive system. It is a universally agreed principle that any draconian law will affect the weakest of the society. It is a matter of experience that NIA, almost all the time, penalised the Muslims who possessed least social capital.
When the NIA itself is under a cloud, that there is an apprehension that NIA become a tool for political vendetta and now NIA is being elevated to a superior role over state home ministries and police mechanism. It means that NIA Amendment act apparently undermines the conventional federal principles of the country. Opposition leaders, rights activists, minorities, anyone who doesn’t seem to agree with the central government is at risk. The Government has not believed in federalism and took over the powers into its hands and Government executive position is being turned into judiciary role. While the existing law allows forfeiture of property representing proceeds of terrorism, only with prior approval in writing by the director-general of police (DGP) of the state wherein such property is located, the amendment empowers the director-general (DG) of the National Investigation Agency (NIA) to do so. The amendment empowers the Centre to turn Sessions Courts into Special Courts to conduct trials of NIA cases. Once-independent judiciaries are gradually dismantled through selective purging and the appointment of politically reliable loyalists will complete the catastrophe.
NIA was authorised to investigate cases registered under Atomic Energy Act 1962 and UAPA 1967 only. However, after this amendment, cases related to human trafficking, fake currency, production and sale of banned weapons, cyber crimes and offences under Explosive Substances Act will come under the purview of NIA. That means, petty offences registered in the states can be taken up by NIA. Now a NIA Circle Inspector who could be around 30 years of age and with some basic qualifications is authorised to recommend to DGP to reckon some one as Terrorist as against ACP, earlier designated. The funny explanation given by Home Minister was that there is a shortage of staff at NIA. And, this leaves great scope of misuse of power on the bill. This is decided by someone who is sitting in Delhi and labelling people across all states.
But what exactly does the NIA do? NIA’s own misuse in terror cases like the Malegaon and Samjhota Express blast cases, which stirred country wide debate after several officials of the agency levelled serious charges against it. 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, in which serving and retired army officers were found to be key players.
As always there is assurance of no misuse of law, This is a very crooked statement as everyone knows IPC itself is being abused and several thousands of people were being prosecuted under false charges. How UAPA, which is the most demonic law in India so far, cannot be misused ? There is no structural measure in place to avoid misuse of draconian laws. The burden of proof in any other case is with police to prove someone culprit but in UAPA cases the burden of proof always lies with the accused, who is a victim in such cases, to prove his innocence. The evidence what police produce in front of the courts have been seen from previous cases, as tampered or fabricated. The conviction rate in UAPA is one of the lowest, though, compared to any other law.
Ironically when amendments to the National Counter Terrorism Centre (NCTC) and National Intelligence Grid (NATGRID) were made, the then Chief Minister of Gujarat (Narendra Modi) had “opposed” the Bills citing taking away rights of states and against the federal spirit of the Constitution.
POTA and TADA, these draconian laws were repealed by parliament itself because of rampant misuse. With our past experiences over many years, when POTA, UAPA, Sedition laws and were being used with definite political motifs – we can only count days before we see the effect of the new bills. It is shameful that barring six MPs the entire Lok Sabha Opposition capitulated and voted for such a draconian amendment. By amending the UAPA and NIA Act, the government has ensured that anyone criticising the government and its autocratic policies can be labelled a terrorist and incarcerated even if no ties to any terror groups can be established. Every dissenter can be labelled an ‘urban Maoist’ with adequate help of a pliant media which has placed spread of propaganda at the top of its job list. The opposition has not taken the matter with much seriousness. If they had apprehension of the dangers of the amendments they could have stopped the bill at least in Rajyasabha.
It is used as an unconstitutional measure to deprive an individual of their constitutional rights violating the basic jurisprudence; the accused must be presumed to be innocent until proven guilty, and the onus of the prosecution to prove the guilt remains the same. We have all witnessed the BJP trying to ostracize a person by tagging them as anti-national, and after this new UAPA law, it will be easier for the ruling party to tag any rebellious individual who is fighting against the economic and social antagonism. Any law the abridge freedom and evoke other concerns must be repealed. Now that the UAPA amendment Bill has been passed, it will become one more weapon in the hands of a regime that is hell-bent on delegitimising any and every criticism of its policies. The NIA should be made accountable and all the activists arrested under UAPA must be released.