Activist Claims 97% of UAPA Detainees Innocent
Questions Law’s Alignment with India’s Democratic Aspirations
Newsreel Asia Insight #116
Jan. 29, 2024
A human rights activist and retired professor has asserted that 97% of individuals accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) are ultimately found innocent following extended periods of incarceration without trial.
The UAPA, initially enacted to target unlawful activities and associations, has evolved into a contentious tool in India’s legal arsenal, G. Haragopal, retired professor from the University of Hyderabad, indicates in an interaction with The Hindu, citing the Bhima Koregaon case as an example.
The case originates from the events of Jan. 1, 2018, at Bhima Koregaon, a village in Maharashtra. Every year, Dalits gather at Bhima Koregaon to commemorate the victory of the British army, which included a large contingent of Dalit soldiers, over the Peshwa (upper-caste rulers) in 1818. The 2018 event marked the 200th anniversary of this battle and attracted thousands of Dalits. However, the gathering turned violent, leading to clashes, resulting in one death and several injuries.
Following the violence, the Maharashtra Police launched investigations. They alleged that the violence was incited by speeches made at the Elgar Parishad conclave held in Pune on Dec. 31, 2017, claiming the event had Maoist links. The police arrested several activists and intellectuals, accusing them of having Maoist ties and plotting to overthrow the government. These arrests were made under the UAPA.
Critics argue that the arrests were politically motivated and an attempt to suppress dissent.
“A person suffers in jail for three to four years and then gets acquitted after the prosecution fails to prove his guilt,” Haragopal was quoted as saying.
Several clauses in the law have raised concerns about civil liberties and democratic principles.
One of the primary issues with the UAPA is its broad and often vague definitions of what constitutes “unlawful activities” or “terrorism.” For instance, Section 15 of the UAPA, which defines a terrorist act, is expansive and can encompass a wide range of actions. This vagueness allows for a broad interpretation, potentially leading to misuse against political dissenters, activists and minority groups. The lack of a precise definition can result in arbitrary application, which is antithetical to the rule of law.
The UAPA also allows for extended detention periods without charge. Under Section 43D(2), the Act permits the detention of an individual for up to 180 days without a charge sheet being filed. This is a significant deviation from the standard criminal procedure in India, where the maximum period before filing a charge sheet is typically 60 to 90 days. Such prolonged detention without formal charges undermines the principle of “innocent until proven guilty” and can be seen as a violation of basic human rights.
Further, the UAPA makes the grant of bail extremely difficult. Under Section 43D(5), bail is denied if the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This provision shifts the burden of proof onto the accused, which is a significant departure from the normal criminal justice system where the presumption is in favour of granting bail.
Furthermore, the Act gives the government wide powers to ban organisations and designate individuals as terrorists. Under Sections 35 and 36, the government can unilaterally declare an organisation as a terrorist organisation and individuals as terrorists. This power, with minimal judicial oversight, raises concerns about its potential misuse against political opponents and minority groups.
The impact of such laws extends beyond the individuals directly affected. The UAPA, particularly with its broad definitions, can have a chilling effect on freedom of expression and dissent. The fear of being labelled a terrorist or supporting terrorism can deter individuals and organisations from engaging in legitimate political or social activism. This is detrimental to the democratic ethos of a society where dissent and dialogue are essential.
Moreover, the UAPA does not seem to adequately balance the need for security with the protection of individual rights. The principle of proportionality requires that any restriction on rights should be proportionate to the need for such restriction. However, the sweeping powers and stringent provisions of the UAPA raise questions about whether it meets this standard of proportionality.
Laws are essential to maintain societal order, but they should not become instruments of oppression. The debate over UAPA is a larger conversation about the kind of society India aspires to be – one that upholds the rule of law, respects individual rights and cherishes democratic values.
