The First Major Enforcement of the Controversial Law Under NDA 3.0

Newsreel Asia Insight #252
June 15, 2024

Delhi Lieutenant Governor Vinai Kumar Saxena has authorised the prosecution of Indian author and activist Arundhati Roy and and Prof. Sheikh Showkat Hussain under the Unlawful Activities Prevention Act (UAPA) in connection with a 14-year-old police complaint. This marks the first major enforcement of the controversial law under the third term of the Bharatiya Janata Party-led National Democratic Alliance (NDA). This comes 10 days after the national election results which were widely regarded as a mandate for good governance and a verdict against the government’s alleged heavy-handedness.

On June 14, officials confirmed that Saxena had sanctioned the prosecution charges against Roy and Dr. Sheikh Showkat Hussain, a former professor at the Central University of Kashmir, as reported by Hindustan Times. The charges include promoting separatist ideas concerning Kashmir in a 2010 conference.

In 2019, the central government revoked the autonomy of Jammu and Kashmir state under Article 370, which was drafted in 1947 by Sheikh Abdullah, the then Prime Minister of Jammu and Kashmir, and accepted by India’s first Prime Minister Jawaharlal Nehru.

Following a complaint by Sushil Pandit, a prominent Kashmiri activist, the legal process was initiated which led to an FIR and a detailed investigation.

In 2023, Saxena had granted approval under Section 196 of the Criminal Procedure Code (CrPC) for offenses punishable under various sections of the Indian Penal Code against Roy and Hussain.

Roy, an internationally celebrated author and a vocal critic of various Indian administrations, particularly under Prime Minister Narendra Modi, has been a consistent voice against policies perceived as detrimental to democratic freedoms and human rights. Her outspoken nature has frequently made her a target of governmental ire.

Rights activists have raised concerns over increasing detentions under the UAPA during the NDA’s tenure.

The National Crime Records Bureau (NCRB) data shows that from 2016 to 2020, more than 24,000 individuals were charged under UAPA, with a strikingly low number of just 386 acquittals.

A human rights activist, G. Haragopal, who is a retired professor from the University of Hyderabad, recently asserted that 97% of individuals accused under the UAPA are ultimately found innocent following extended periods of incarceration without trial.

A recent report from The Telegraph lists prominent detainees under the UAPA without trial, including Umar Khalid, a former student leader from Jawaharlal Nehru University. The others include Surendra Gadling, a lawyer and Dalit rights activist; Rona Wilson, an activist with the Committee for the Release of Political Prisoners; Jyoti Jagtap, a member of the Kabir Kala Manch; Hany Babu, a professor at Delhi University; Sagar Gorkhe, a singer and activist; Mahesh Raut, a land rights activist; Ramesh Gaichor, a cultural activist; Aasif Sultan, a journalist from Kashmir; and Khurram Parvez, a noted human rights activist. All these individuals have faced prolonged detentions under charges often criticised as being politically motivated.

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.