Former Civil Servants Say UAPA’s ‘Flaws and Loopholes’ Allow Abuse, Call For Replacement

New Delhi: Over 100 former civil servants have endorsed an open letter by the Constitutional Conduct Group (CCG) which calls for the draconian Unlawful Activities (Prevention) Act (UAPA) to be amended, saying as it stands today, the law has “many flaws and loopholes making it amenable to large scale abuse and misuse by some politicians and overzealous policemen”.

In a statement, CCG said that the law violates constitutional guarantees and though it has been in existence in India’s statute books for over five decades, “the harsh amendments it has gone through in recent years has made it draconian, repressive, and amenable to gross misuse at the hands of ruling politicians and the police”.

The arrests of students Devangana Kalita and Natasha Narwal, the statement says, are examples of misuse. It also mentions the arrest of activists, lawyers and academics in the Elgar Parishad case as the “most shocking of the arrests under the UAPA”.

The statement notes that both UPA and NDA governments are responsible for the “extreme stringency” of the law, but also highlights the fact that since 2015, arrests under UAPA have shot up considerably.

CCG said that at a recent seminar, several retired Supreme Court judges had agreed that UAPA should not remain in the statute book in its present form. “We believe, like them, that such a draconian law has no place in a civilised society, particularly in a country claiming to be the world’s largest democracy,” the statement says.

Recollecting Prime Minister Narendra Modi’s statement at the G7 summit that “democracy and freedom” are part of the Indian ethos, the statement says if the prime minister is true to his word, “his government should heed the call of legal luminaries and the ordinary public, appreciate that the UAPA in its present form poses a serious threat to the freedom of our citizens and to democracy”. The Union government should consult legal experts and take into account the views of parliament, after which fresh legislation should replace UAPA. This new law, while addressing concerns regarding terrorism, should also safeguard the right to liberty of those exercising their fundamental right of free expression, as guaranteed by Article 19 of the constitution.

Among the signatories are Vappala Balachandran, A.S. Dulat, N.C. Saxena, Harsh Mander, Shivshankar Menon, Julio Ribeiro, Aruna Roy. The full list of signatories and the complete statement have been reproduced below.

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CCG OPEN LETTER TO CITIZENS OF INDIA

GOVERNMENT OF INDIA MUST REPLACE THE UAPA WITH LEGISLATION THAT FIGHTS TERRORISM WHILE SAFEGUARDING PERSONAL LIBERTIES   

August 16, 2021

Dear Citizens of India,

We are a group of retired officers of the All India and Central Services who have worked with the Central and State Governments in the course of our careers. As members of the Constitutional Conduct Group, we believe in impartiality, neutrality and commitment to the Indian Constitution and in safeguarding its values.

We are writing this in the matter of the Unlawful Activities (Prevention) Act (UAPA) that violates the Constitutional guarantees of citizens’ fundamental rights. Though this law has been in existence in India’s statute books for over five decades, the harsh amendments it has gone through in recent years has made it draconian, repressive, and amenable to gross misuse at the hands of ruling politicians and the police. Typical of such misuse are the cases of the three anti-CAA student protestors – Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha – who were arrested under UAPA without any valid grounds but were recently granted bail by the Delhi High Court in a detailed and unprecedented order.

On 9 March 2021, the Union Minister of State for Home, Shri G. Kishan Reddy, in a written reply to the Lok Sabha, admitted to the uncommon overuse of the UAPA. He confirmed that 1948 persons were arrested under the UAPA in 1226 cases across the country in 2019, which showed a 72% increase as compared to 2015.  The following figures will show the increase in cases and arrests between 2015 and 2019:

2015: 897 cases with 1128 arrests

2016: 922 cases with 999 arrests

2017: 901 cases with 1554 arrests

2018: 1182 cases with 1421 arrests

2019: 1226 cases with 1948 arrests

2019 saw the highest number of arrests in the country, particularly in the states of Uttar Pradesh (498) Manipur (386), Tamil Nadu (308), Jammu & Kashmir (227) and Jharkhand (202).

Despite the large number of arrests under the UAPA, the number of prosecutions and convictions shows a steep decline. The Government of India has admitted that a mere 2.2% of the cases registered between 2016 and 2019 resulted in conviction. We may conclude that the vast majority of the arrests under UAPA were made on specious grounds just to spread fear and muzzle dissent.

The UAPA has a chequered history. This legislation, first passed in 1967 on the recommendations of the National Integration Council to combat communalism, casteism, regionalism and linguistic chauvinism and to deal with associations engaged in secessionist activities, has changed colour over time and has now become a statute that has created new categories of offences and punishments.

The UAPA was not used extensively prior to the last decade as the Government of India had, meanwhile, enacted preventive detention laws such as the Maintenance of Internal Security Act (MISA-1971), the National Security Act (NSA-1980), the Terrorist And Disruptive Activities (Prevention) Act (TADA-1987)   and The Prevention of Terrorism Act (POTA-2002). But after the 9/11 terror attack on the USA, the UN Security Council passed a resolution asking national governments to enact countrywide anti-terror laws. The Government of India complied by passing the UAPA Amendment Act, 2004, carrying stringent provisions to suppress terrorism.

However, the Government of India seriously departed from the principles of criminal jurisprudence and from the provisions of the Constitution when the UAPA (Amendment) Act, 2008 was codified after the 26/11 Mumbai terror attack. This was done during the tenure of the United Progressive Alliance (UPA) government. Successive UPA and NDA Union governments which have been or are in power are responsible for the extreme stringency of the UAPA. In 2008, the UPA government made bail provisions much more stringent, increased the pre-charge detention period from 90 days to 180 days and, most damagingly, placed the burden of proof on the accused. In 2019, the NDA government further amended the UAPA to allow individuals, not merely organisations, to be designated terrorist. This amendment also gave unfettered and autocratic powers to the executive, in particular the National Investigation Agency (NIA), to enter any State and arrest any person. Though some voices of protest were raised when these amendments were made, most political parties supported the move. For the UPA members or any other party to act outraged now is, therefore, disingenuous.

The most shocking of the arrests under the UAPA have been of persons accused in the Bhima-Koregaon case. Several well regarded activists who have fought throughout their lives for the rights of tribal people and other oppressed groups have been arrested as terrorists and, even today, languish in jail. . The names of those arrested are well known – Sudha Bhardwaj, Rona Wilson, Gautam Navlakha, Anand Teltumbde, Arun Ferreira and Varavara Rao, to name a few.  And, of course, Father Stan Swamy – an 84 year old Jesuit priest – suffering from Parkinson’s and other ailments, who was not granted bail despite repeated requests and eventually died while in custody.

Former judge of the Patna High Court, Justice Anjana Prakash, is on record stating that 66% of the total number of persons booked under the UAPA were for conspiracy without any allegations of accompanying acts of violence. She also revealed that out of the total number of 386 cases being investigated by the NIA, 74 cases were for non-UAPA offences while 312 pertained to UAPA offences. She added that NIA has not been able to submit charge-sheets in 56% of these cases, meaning that the accused in these cases still remain in custody. These figures definitely point to an unhealthy practice of “governance by fear” which has no legitimate place in a democracy.

The law, as it stands today, has many flaws and loopholes making it amenable to large scale abuse and misuse by some politicians and overzealous policemen. Things have come to such a pass that at a recent webinar on “Democracy, Dissent and Draconian Laws”, organised by the Campaign for Judicial Accountability and Reforms, four former Supreme Court judges – Justices Aftab Alam, Madan B Lokur, Gopala Gowda and Deepak Gupta – came down heavily on UAPA and sedition laws and the way they are being misused to suppress democratic dissent and curb fundamental rights. Justices Gopala Gowda and Deepak Gupta were of the view that since Section 43D(5) of the UAPA takes away the power of courts to grant bail and order a judicial review, the law is unconstitutional. All the former Supreme Court judges agreed that the UAPA should not remain in the statute book in its present form. We believe, like them, that such a draconian law has no place in a civilised society, particularly in a country claiming to be the world’s largest democracy.

Participating in a session at the G-7 Summit in Cornwall, United Kingdom, held between 11 and 13 June 2021, Prime Minister Narendra Modi spoke of democracy and freedom being part of the Indian ethos. If the Prime Minister is true to his word, his government should heed the call of legal luminaries and the ordinary public, appreciate that the UAPA in its present form poses a serious threat to the freedom of our citizens and to democracy and, after consulting legal experts and taking into account the views of Parliament, enact fresh legislation to replace the UAPA which, while addressing concerns regarding terrorism, safeguards the right to liberty of those exercising their fundamental right of free expression as guaranteed by Article 19 of the Constitution of India.

SATYAMEVA JAYATE

(108 signatories, as below)