Abdul Shakeel Basa, who works with riot victims and homeless children, was accused of being a Maoist and arrested by the Delhi police under the Unlawful Activities Prevention Act (UAPA) three years ago. Though he is out on bail, the case continues.
Basa, who says that he was tortured by the police while in custody, is a strong opponent of the act. “It allows the police to concoct charges against activists by calling them members of banned organisations,” he holds.
The government is seemingly ready to do something about cases which are believed to be false, but which carry on for years, often with the accused in jail. The Union home ministry recently said it would provide special legal assistance to Muslim youths and set up special courts for dealing with such cases.
Activists working in this field, however, feel that this will not help. “Special court is shortcut populism,” says Manisha Sethi of the Jamia Teachers’ Solidarity Association (JTSA), a forum of teachers fighting against human right violations.
Experts maintain that what is needed is a repeal of the UAPA. The act was first passed in 1967 as an ordinary criminal law but later amended to deal with terrorism after the Terrorist and Disruptive Activities (Prevention) Act (Tada) and the Prevention of Terrorism Act (Pota) were repealed. They believe that amendments to the act in 2004, 2008 and in 2012 made the law even more stringent.
“The two anti-terrorist acts — Tada and Pota — were widely misused and therefore repealed. But unfortunately, the government gave more teeth to UAPA instead,” says human rights lawyer V. Suresh of the People’s Union for Civil Liberties.
The government strongly believes there is a need for such an act — a view that’s supported by sections of the legal fraternity. “Since this act is a substitute for Tada and Pota, it is needed to control organised crime and terrorism in our country. Only legislation as severe as this can prevent this,” says Supreme Court lawyer K.T.S. Tulsi. “But we should see that the law is not misused.”
Human right activists point out that UAPA doesn’t even have the protection given to those slapped with Tada and Pota. “Under Tada and Pota, a police officer had to take special permission of a superintendent of police or above for filing an FIR and a chargesheet. But this has been knocked out of the UAPA,” Suresh stresses.
After amendments made in 2004, a terrorist act is defined through its “intent” in the UAPA. It states that any act can be called a terrorist act if there is intent “to threaten or likely to threaten the unity, integrity, security or sovereignty of India” or intent “to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country”.
“It is an extremely vague provision. One cannot criminalise the intent of a person,” Suresh says.
Further, the crimes that are included in the UAPA are also defined under other existing criminal laws. For instance, under the act, the use of bombs, dynamites or other explosive substances or causing damage or destruction of property which is supposed to be used for the defence of the country is punishable. But these acts are also defined as crimes under laws such as the Indian Penal Code, The Arms Act and Explosives Act.
So it’s “unethical”, the lawyers say, when people are booked under UAPA for the same crimes and labelled terrorists. “It becomes arbitrary,” human rights activist Mahtab Alam states.
What’s worse, the activists say, is that a new amendment was passed in 2012 bringing economic offences under terrorism. The act also criminalised all forms of associations, thus providing sweeping powers to security agencies.
The legal experts are also critical of a clause that criminalises the raising of funds from a legitimate or illegitimate source knowing that such funds are likely to be used by a terrorist organisation. “This is vague as arrests are made notwithstanding whether such funds were actually used for the commission of a terrorist act. This is open to misuse,” holds Gujarat High Court advocate and Human Rights Law Network member Subramaniam Iyer.
“The police can now ‘legitimately’ arrest people who have raised money or sent remittances home, on the merest suspicion that they had subjective knowledge that it might be used for terrorist activities,” he says. The experts believe that the law intends to “create terror” rather than control it.
Under such circumstances, setting up special courts is just an “ostrich-like” approach, they say. The government should instead address the core of the problem, which they hold is the law that is programmed for abuse.
“By creating these dreaded ‘terrorist courts’ while keeping the system of prejudiced investigations, vengeful prosecution and judicial abdication intact is not going to help,” Sethi of JTSA said in a recent statement.
Another point of concern with the law is the banning of organisations. Under the law, the state can ban an organisation without giving a reason. Similarly, an organisation can be declared a terrorist body on the grounds that the Central government believed it to be one.
Under Section 3 of the act, the bans are in effect for two years. Under Section 34 (which deals with so-called terror organisations), the bans are forever.
Critics also say that the punishment under the law is “highly unjust”. For example, the punishment for someone who takes part in or commits or advocates, abets, advises and incites the commission of an unlawful activity can be punished up to seven years and fined.
“Knowing that state and government officials can accuse citizens of unlawful activity simply for expressing discontent, a seven-year sentence is grossly unjust,” human rights activist Gautam Navlakha opines. Those voicing political differences can be sent to jail for a term equivalent to that of a convicted rapist, he points out. He further adds, “These sections extend the ability of the government to use the law to silence political dissent enormously.”
The experts also call for action against security forces abusing or misusing the law. “We have been demanding that police officers be made liable for false prosecution. Even if they have retired, they should be prosecuted,” Suresh says.
A special court, they believe, makes sense only when the problems in the law are addressed.