“Stan Smith (84) passes away. The system sucks. UAPA. No bail. Little hope of early trial. Others too languish in jail. Lawyers , Academics , Social Activists ….raise their voices for the voiceless. They too are now “voiceless”. The State calls them “ terrorists,” Kapil Sibal, Congress MP, tweeted on July 5, 2021.
Sibal got the name wrong. And he forgot to say sorry. For this casual disrespect to a martyr for democracy, even before dust had settled on his grave. He also forgot to say sorry for his own role in giving India the dark gift of the Unlawful Activities (Prevention) Act (UAPA) that finally killed Fr. Stan Swamy. The gift that keeps on giving.
On June 18, a day after the release of the three student activists, P. Chidambaram, former Home Minister and Congress leader, had similarly tweeted:
“Warm welcome to Natasha Narwal, Devangana Kalita & Asif Iqbal Tanha and more power to you. You are an oasis of hope and inspiration in a desert of apathy and inertia.”
And on July 2nd after UAPA cases against Akhil Gogoi were quashed, he again tweeted, “Court quashes ‘bogus case’ filed by NIA against Akhil Gogoi. This is not the only bogus case. Nearly all anti-CAA protest cases are bogus.”
In between these solidarity tweets, came two articles by senior Congress leaders, one by Manish Tewari (June 26), the other by Kapil Sibal (June 21). The former was the kind of piece that emerges every year from the Congress stable around June 25, to deflect from the annual bad press it gets for the Emergency of 1975. Yes, the Emergency was terrible, he wrote, but things are much worse in the current state of undeclared emergency.
One has to agree, until the finger pointing gets unconvincing.
“An architecture of legal amendments has led to laws like the Unlawful Activities Prevention Act (UAPA), National Investigation Agency (NIA) Act, Information Technology Act, Foreign Contribution Regulation (FCRA) Act, which have tipped the fine balance of constitutional jurisprudence to the detriment of the individual,” he wrote.
Also read: Stan Swamy’s Death Exposes Our Broken Criminal Justice System Crying For Reforms
The article fixates on the ‘amendments’, blithely ignoring that the ‘architecture’ was entirely designed by his own party. And that the ‘fine balance of constitutional jurisprudence’ had long tipped. Grounds for the endless incarceration of the 21 falsely charged under UAPA in the Delhi riots case as well as the 15 falsely charged in the Bhima Koregaon case were already there in the UAPA as it stood, before any amendments were made by the present government.
Gaslighting
Kapil Sibal’s piece (‘UAPA Undermines Personal Liberty’) had already gone a step further, from deflection to falsehood. He wrote:
“Regrettably, the definition of a “terrorist act” under the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA) substantially differs from the definition promoted by the United Nations (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism…
“UAPA…offers an overbroad and ambiguous definition of a “terrorist act” which includes the death of, or injuries to, any person, damage to any property, an attempt to overawe any public functionary by means of criminal force, and any act to compel the government or any person to do or abstain from doing any act etc. It also includes any act that is “likely to threaten” or “likely to strike terror in people”, giving unbridled power to the government to brand any ordinary citizen or activist a terrorist without the actual commission of these acts.”
“Besides,” he continues, “bail is rarely granted. Under UAPA, a person shall not be released on bail if the court, on perusal of the case diary or the charge-sheet, is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true.”
This is a cross between hypocrisy and political gaslighting – manipulating the public’s perception of reality, making them question their own memory, doubt their own assessments. Because the definition of a terrorist act that Sibal articulately critiques was put on the statute books in 2008, and he was part of the cheerleading squad in parliament. To condemn a thing you yourself did is called hypocrisy. It is worse than lying, because you are not only concealing what you did, you are trying to pin it on someone else and take the moral high ground.
Here is a corrective flash-back.
The ‘draconian’ UAPA was made draconian by the Congress-led UPA government, through substantial amendments in 2004, 2008 and 2013. Each amendment made it worse. The 2013 amendments added an offence for raising funds, even from legitimate sources, if they were ‘likely’ to be used for a terrorist act, even if they were never used for such an act. In 2008, unnerved by the Mumbai terror attacks and wanting to be seen as a ‘strong’ State, the Congress had amended the definition of a terror act in Section 15, making an already overbroad definition positively dangerous for civil liberty. The new bail provision Section 43 D (5) made pre-trial bail well-nigh impossible, and 43D (2) modified application of Section 167 of CrPC; it allowed 180 days of detention before filing the charge-sheet in a UAPA case.
Illustration: The Wire.
No other democratic country in the world treats liberty so shabbily in the law. Not the UK. Not USA. This provision has meant a minimum of 6 months of guaranteed jail time, before you even know why you have been locked up. Personal liberty, presumption of innocence, bail the norm-jail the exception – each lofty principle felled in a hatchet blow.
Both the National Investigation Agency Bill, 2008 and Unlawful Activities (Prevention) Amendment bill, 2008 were steered ably and jointly by Chidambaram and Sibal in the Lok Sabha on December 17, 2008, as ‘companion bills’.
“We have made a provision of 180 days under this law. Our laws are more tough than that of America and England. Can you give me the example of any other country, where such laws exist?” thundered Sibal with pride in the Lok Sabha in 2008.
On the sweeping definition of a terror act (Section 15), which has allowed the State to use UAPA against pretty much anyone doing pretty much anything, this is what Mr. Chidambaram had said:
“We have now bodily lifted the definition of the terrorist offence or terrorist act from the United Nations Resolution. This is universally accepted now. Universally, this definition is accepted. We have simply lifted that definition. There can be no quarrel about the definition…. Section 15, which we have now replaced, which reflects international consensus on what is a terrorist act, includes within It, any act with intent to strike terror or likely to strike terror in the people or in any section of the people”. (emphasis mine)
How does this work exactly?
In 2008 you push through ‘draconian’ amendments. In 2021 you damn the same amendments calling them ‘draconian.’
You express public solidarity with the victims of these precise provisions, without a hint of an apology for having crafted them in the first place. You proclaim your definition of terror act is unimpeachable-there-can-be-no-quarrel-about-it UN standard. A colleague-in-arms now says tut tut – not in line with UN standards. You roar with pride as you push the most unjust bail provisions in 2008, and breast-beat about how terrible they are in 2021. Gaslighting or a change of heart?
In 2019 the present regime added a further set of dangerous and vindictive amendments to an already blood-thirsty law. Specifically, a provision to designate individuals (not just organisations) as terrorists in the Fourth Schedule to the Act. No trial, no conviction, no transparent basis for such designation. Nothing except the whim of the government. To their credit, both Chidambaram and Sibal passionately opposed this during the Rajya Sabha debate on August 1 and August 2, 2019 .
“Amendments that designate an individual as a terrorist are draconian, to say the least. Should individuals be legally designated “terrorists” prior to their conviction in a court of law?” Kapil Sibal said at Rajya Sabha, on August 1, 2019.
Chidambaram, on August 2, at the Rajya Sabha, said:
“Reflect soberly. What does it mean? If the Central Government believes that an individual is involved in terrorism, the individual will be named. There is no FIR. There is no charge sheet. There are no charges framed. There is no trial in a court. There is no conviction. If the Central Government believes that an individual is involved in terrorism, he can be named… Today, in Bhima-Koregaon in Maharashtra, a Professor, Shoma Sen; activists Rona Wilson, Vernon Gonsalves; poet and writer, Varavara Rao; two lawyers, Surendra Gadling and Arun Ferreira; Gautam Navlakha; Anand Teltumbde …I believe – I may be wrong – that none of them advocates violence. … What they are advocating is that we must have a peaceful resistance to oppression. But, the police think that they are advocating violence and files case against them. Let the case take its course. Are you going to name them? In fact, the whole nation will watch who will be the first name that you will add to the amended Schedule. Who will be the first name?”
But, stunningly, at the end of all the passion and bombast, the Congress voted en masse in favour of the 2019 amendment in the Rajya Sabha. At last count, 31 individuals have been named as terrorists in the Fourth Schedule since then.
Who will be named next? Will the Congress ever publicly regret that day? Or, shall we just put it down to realpolitik?
Repeal UAPA: Outrage in action not words
On July 6, 2021, ten opposition party leaders wrote to the President – expressing their grief at Fr. Stan’s death, asking for the release of all those arrested in politically motivated cases, and damning the ‘misuse of the draconian UAPA.’ It was a welcome display of political outrage by the opposition at a time of visible cruelty and injustice; a moment of genuine anguish. Political optics matter. But actions matter more.
The choice of words in the letter is curious. ‘Draconian’ is by definition excessively harsh, cruel, severe. Should such a law remain? The letter stops short of that demand, hiding behind the word ‘misuse.’ Are we to take it that a ‘draconian’ law is fine, unless it is misused? Surely there is something wrong with a law so amenable to ‘misuse.’
The present government is deploying UAPA skilfully, massively and in a targeted manner, against specific individuals in its ideological war. This is not misuse. UAPA was designed for this purpose. This is embedded in the nature of the law itself. It does not matter which government is at the helm. The number of innocents charged under UAPA over the decades are legion, most acquitted after 5 years, 10 years and more. It is an ideology and political party neutral law (albeit one that suits the purposes of the party in power). UAPA ultimately represents an aggregation of State power at the expense of shrinking powers of We the People.
Also read: Darkness at Noon: Stan Swamy’s Death Is Testimony to the Judiciary’s Decline
It’s true that cases under UAPA have gone up in the last six years with the BJP-led NDA at the centre: from 976 (2014) to 897 (2015), 922 (2016), 901 (2017), 1,182 (2018) and 1,226 (2019) = 6,104 cases in six years.
It’s also true that when the Congress-led UPA was in power at the centre (2004-2014) cases were unacceptably high. There is no precise way to measure this. NCRB, the only official crime data aggregator at the national level, apparently messed up. Between 1998 and 2014, working off an old proforma to collect data from states, it did not record data on crimes under several new laws and amendments passed in this period.
Even though there is no national data on UAPA until 2014, that year’s statistics tell a story. They tell us that while fresh cases under UAPA were 976, there were 1,857 cases pending investigation and 1144 cases pending trial from the previous year (2013). This is some indication to the past. An astonishing 2,181 people were arrested under UAPA in 2014.
Among the signatories to the recent letter to the President is M.K. Stalin, the newly elected Chief Minister of Tamil Nadu. NCRB reported 270 new UAPA cases in Tamil Nadu in 2019 (under the previous AIADMK government), the second highest after Manipur. Stalin has recently promised to withdraw cases against all anti-CAA equal citizenship protestors.
The CPI(M) is also among the signatories to the letter. But in Kerala, ruled by the CPI(M)-led LDF government, state police have reportedly filed 145 cases under UAPA sections between May 2016 and May 2021. There is a Congress government in Chhattisgarh, where Adivasi activist Hidme Markam was arrested from Bastar on March 9, 2021. She has been charged under UAPA along with several sections of the IPC. She too was working for the rights of adivasis, just like Fr. Stan Swamy in Jharkhand.
Also read: When Process Is Punishment: Hidme Markam’s Activism and the Sketchy Cases Against Her
The NCP chief is a signatory to the letter. The Maha Vikas Aghadi government in Maharashtra is a coalition that includes both the NCP and Congress. Prisons are a state subject. The health and welfare of Fr. Stan in Taloja Central Jail came directly under the state home department headed by the Minister for Home Affairs who belongs to the NCP. Why did they not act humanely, in time to save his health from deteriorating to this extent?
Integrity does not come from never making mistakes. It comes from admitting them. Fixing them. For politicians expressing anguish and outrage in this moment of injustice, the best tribute would be to do what Fr. Stan Swamy did his entire life. Walk the talk. Believe what you say and do what you believe. Otherwise, it’s merely performative solidarity.