It is as much a deeply cherished belief as it is an axiom of criminal

jurisprudence that one is innocent until proven guilty. There is

simply no other way to make sense of our fundamental right to life
and liberty. Our Constitutional rights are the sole guarantee of our
existence as a secure and civilized society. The Supreme Court has
recently stated that majoritarian views cannot dictate rights. What to
speak of actions? For democracy is meaningless, hollowed out and
perverted when fundamental rights cannot be guaranteed as the
‘majority’ actions on Mohammad Akhlaq and the Bhoothmanges
show with brutal poignancy. However, certain laws and their
provisions test this axiom and the established traditions of
jurisprudence, thereby testing the belief that we live in a society
where our right of life and liberty is enshrined and protected. The
Unlawful Activities Prevention Act (UAPA) goes against the grain of
our common understanding of justice as it does against the
principles established in our Constitution. By allowing the
government to invoke at will an extraordinary threat for the
application of extraordinary laws and displacing the burden of proof
from state to citizen in the establishment of innocence, it shatters the
touchstone of ordinary principles and procedures of law. Principles
and procedures which ought to be taken for granted for the life of a
free and fair society to realize its fullest potential in the freedoms of
thought and action. In failing the test of justice and constitutionality
the UAPA empowers the executive and police to an alarming and
undemocratic degree leaving in its wake a well-documented and
dismal history of damaged lives and broken spirits.

4
A FOR ACCUSED:
An accusation is all the police need to arrest a person under the UAPA They do not
need a warrant, they do not need proof, they do not need evidence. If you are you a
poet or a playwright who speaks of injustice and inequality, or an academic who writes
on caste atrocities, or an activist who opposes nuclear power or a lawyer who helps the
labouring poor access courts, or a doctor who works among the tribals, or a young
Muslim involved in any organizational work, you could be charged under the UAPA if
someone decides that your actions are spreading ‘disaffection’ against the country. You
could be accused of being a ‘Maoist’, a ‘SIMI operative’ or a militant. All the police
need is an accusation. You’ll be acquitted eventually, but before that you will spend
many years, maybe a decade, behind bars.

B FOR BIAS:
If it is up to the executive alone to define and condemn an association as unlawful or
an organisation as a terrorist gang, the biases of the government and the political
parties in power, become the bases for such a declaration. In this sense the ideology of
a particular government becomes a factor in the determination of guilt and innocence.
Broad correlations between ideology and the patterns of arrests may well be discerned.
UAPA bolsters the capacity of the government in this regard with far reaching
consequences for the criminal justice system and society at large. SIMI, for example,
was banned immediately after 9/11, when a wave of Islamophobia swept across the
world, and the Indian government found this an opportune moment.

And while the very basis of the law is subjective, it encourages and feeds on prejudice
at the level of investigation and prosecution. There is sound evidence to show that the
previous anti-terror laws were deployed disproportionately against the vulnerable
communities of Dalits, Adivasis and minorities. For example, between the 1970s and
1990s, when struggles over land and labour intensified in Bihar, and bitter armed
conflicts between the landless (always almost dalit) and landlords (almost without fail,
upper caste) broke out, the violence of the landless dalits was met with the most
draconian law at the disposal of the state: TADA. Even in the few instances when
TADA was applied to leaders and foot soldiers of the upper caste private militias, it
was swiftly withdrawn.1

In 1994, the National Commission for Minorities documented that 409 out of the 432
arrested under TADA in Rajasthan belonged to minority groups. 2 In Gujarat too,

1 Chronology of Massacres in Central Bihar (1977 -2001) South Asia Terrorism Portal.
2 “Anti-terror laws: Tools of state terror”, Submission to South Asia sub-regional hearing,
International Commission of Jurists in New Delhi, 27-28 February 2007 by Rohit Prajapati, Activist
from Gujarat, India.

5
TADA was invoked against Muslims, and once when VHP activists were arrested
under the Act, charges were quickly dropped after L.K. Advani raised the issue in the
Parliament.3

The experience with POTA was hardly different from that of TADA. In Gujarat in 2002,
while the ordinance had not even been formalized into an Act, the state government
filed charges under POTO against 62 Muslims (including seven minors) for their
alleged involvement in Godhra train burning. Though public outcry forced the
government to withdraw the charges then, a year later, POTA charges were
reintroduced in the case against 121 individuals.4 In contrast, no one was ever charged
under the anti-terror law for the mass violence and brutality against the minorities that
occurred thereafter. Moreover, nine omnibus conspiracy cases were filed under POTA
against Muslims for planning terrorist attacks in retaliation for the communal violence.
By 2004 in the state, over 280 individuals had been charged under POTA, all but one of
who were Muslim.

The same trend continues with UAPA.

Some security experts argue that there is no bias, and that in fact wrongful arrests are
merely mistakes made in good faith. But facts speak otherwise.

When bombs exploded on the night of Shab-e-Baraat near a mosque in Malegaon in

2006 – where Muslims were the clear target – the ATS arraigned local Muslims,
extracting confessions even. It was only later that the NIA’s investigation revealed
another set of accused with links to hardline Hindutva groups. In the case of Mecca
Masjid blasts of 2007, the Hyderabad Police rounded up over 70 Muslim youth,
tortured and again, presented the public with torture confessions. However when the
CBI – which had taken over the investigation from the Hyderabad Police – discarded
the confessions, the Hyderabad police implicated 22 of those youth into false cases of
‘Jihadi conspiracy’. All of them were acquitted eventually.

See our report Framed, Damned, Acquitted for the manner in which prejudice is
institutionalised – how easy it is for the police and other elite agencies to pick up
Muslims and frame them as operatives of Al Badr, HuJI, Let, SIMI or what have you –
no questions asked.

C FOR CONVICTION:
Despite the procedural and evidentiary shortcuts, convictions rates under anti-terror
laws have been extremely low. In the decade of its existence 76,036 individuals were
arrested for crimes under TADA, but only about 400 people were ever convicted.5 At

3 See Lawless Roads: A Report on TADA, 1985-1993, PUDR, 1993.

4 Manoj Mitta. 2014. The Fiction of Fact-Finding: Modi and Godhra. New Delhi: HarperCollins.
5 Kumar, Ram Narayan et al (2003) Reduced to Ashes: The insurgency and human rights in Punjab

(Kathmandu: South Asia Forum for Human Rights).

6
the time of its repeal in 2004, 1031 persons were arrested under POTA. Trial was
completed with regard to 18 of these people, with 13 being convicted and 5 acquitted.
431 people were on bail, and 566 people remained incarcerated at the time of its
repeal.6 According to recent NCRB data, two-thirds of UAPA cases ended in acquittal.7
By contrast, the average rate of conviction for non-terror related crimes is 45.1%.

Over the years, however, we can also notice a disturbing trend, of judicial wisdom and
independence capitulating to the hype of terrorism to mete out convictions even in the
absence of evidence. To give just one example, in a high profile case from Pithampur
(Dhar) in Madhya Pradesh, the court conceded that nothing documentary had been
placed before it by the prosecution to prove the accused’s culpability in any unlawful
activity. It added: “However, this does not have an adverse impact [for the
prosecution's case] because it is not usually possible to find such proof; one cannot in
fact expect or desire formal proof.”

A Chhattisgarh sessions’ court sentenced Binayak Sen to life on the basis of three
letters he had purportedly delivered. The Judge’s justification of this severest penalty
invoking “fear, terror and disorder” spreading “across the country” itself points to the
fact that the conviction was not based on evidence, but on the court’s perception of
national security and threats to it. Thus, extra judicial reasons can sometimes result in
convictions.

6Statement of Shivraj Patil, Minister of Home Affairs in the Rajya Sabha, 11 May, 2005.
7http://www.indiaspend.com/cover-story/why-arrested-activists-shouldnt-despair-67-unlawful-
activities-prevention-act-cases-ended-in-acquittaldischarge-99067

7
D FOR DRACONIAN:
Right from its inception, the UAPA has been known as a draconian law. In its original
form in 1967, the law gave the power to the government to ban organisations and
democratic dissent. Throughout its life, the law has been fortified and made ‘stronger’
– and with each successive amendment (2004, 2008, 2012), its scope has become
broader, the state more powerful, and the right to association more fragile.

The only antecedent to this law was a 1908 statute used by the colonial government to
suppress the independence movement. Despite being struck down by the Supreme
Court in 1950 the Congress government resurrected this power during the Emergency
of the 1960s.

In parliamentary debates on the bill which eventually became the UAPA, members
from the Left and Right saw it for what it was: rather than being a means to protect the
citizen it was clearly an attempt to permanently entrench what was an emergency
power with the government that could render unlawful any criticism – to suppress any
form of dissent. It was thereby recognized to have eroded the very essence of a
democratic polity. No wonder, the bill was characterised as a draconian measure that
exposed Indira Gandhi’s (who was then PM) ‘dictatorial tendencies’. In 1966, the
members of parliament saw the UAPA as the government’s way to suppress any anti-
Congress activities. Today, the government sees it as a tool to suppress any activities
that threaten the RSS and BJP’s stranglehold on the country.

The opposition MPs knew then, what we know now: that the UAPA was a way of
suppressing any form of dissent or disagreement with the government.

8
Over the years, the UAPA has incorporated all sorts of procedural and evidentiary
shortcuts, aimed at keeping people in jail for as long as possible. Short of admitting
confessions as evidence, the present UAPA allows the same discretionary powers to
the police as did POTA and TADA: extended pre-charge remand, impossible bail
standards, secret trials etc. (See ‘Unconstitutional’) While you may eventually get
acquittal due to the sheer flimsiness of the charges against you, the trial will be by any
measure, unfair.

E FOR EXTENSIONS
Under the UAPA, police remand for custodial interrogation can extend up to 30 days
rather than 15 under ordinary law. Police can continue to keep suspects under
detention up to 180 days or six months without filing a chargesheet, as opposed to 90
days under ordinary laws.

The pre-charge detention under UAPA is the longest anywhere in the world for terror
laws.

USA: 2 days
Germany: 2 days
Italy: 4 days
Russia: 5 days
Spain: 5 days
France: 8 days
UK: 28 days 8

8 Charge or Release: Terrorism Pre Charge Detention Comparative Law Study, July 2010, Liberty, UK.

9
In 2008, the UK House of Commons passed a counter terrorism bill by a wafer thin
majority of 9, which would have extended this period to 42 days. However, the
provisions were defeated in the House of Lords by a majority of 309 votes to 118.9 In
India, the provisions to extend the period of remand and detention were passed in half
a day in December 2008, despite some calls for referring it to the standing committee.

What is interesting is that while the opposition BJP clamored for an even tougher law,
which would allow for confessions to be admitted as evidence – as in POTA and
TADA – and dismissed the fortified law as “too little, too late”, the government in
passing these amendments actually claimed to be balancing human rights concerns
with the need for a strong anti-terror legislation! 10

F FOR FIR:
Read the FIRs filed in UAPA cases to understand how the law operates. Once an
organisation has been banned, the prohibition needs to be justified. This is achieved
through filing of scores of FIRs to give an impression of hectic unlawful activity being
conducted by the banned organisation. Then these FIRs are produced before the
tribunal, which will accept the burgeoning cases as evidence of unlawfulness and
uphold the prohibition. Even a cursory reading of these FIRs side by side will show
how dates, names and locations are changed on a pre-existing template. Sometimes
though, the police will fumble even with that. For example, FIR No. 537/00 (PS. Talliya)
and FIR No. 663/00 (PS Shahjahanabad) are both registered on 22nd October 2000
against the same set of accused alleged to have been committing the same crime (pasting
‘provocative’ posters) at the same time – but in different places!

F FOR FRONT:
UAPA heralds a ‘jurisdiction of suspicion’ through a clever trick. In ‘background notes’
drafted by the Home Ministry whilst banning an organization or whilst declaring
another terrorist, or in chargesheets filed in UAPA cases, you will come across
references to organisations that are not proscribed. They are labelled as ‘Fronts’ of
banned organisations. They could be lawyers’ groups, registered trusts doing
charitable work, regular NGOs, or cultural troupes. This kind of insinuation
stigmatizes those organisations and individuals, and allows for an ever-expanding
circle of suspects. The currently popular term ‘Urban Naxal’, or its earlier avatar
‘Overground Maoist’ are part of the same regime of suspicion.

9 United Kingdom: Pre-charge Detention for Terrorist Suspects, October 2008, The Law Library of

Congress, Global Legal Research Centre. Access at: https://www.loc.gov/law/help/uk-pre-charge-

detention/uk-pre-charge-detention.php
10 See Lok Sabha Proceedings, 17 December 2008, Fourteenth Series, Vol. XXXVI, 14th Session, part

II.

10
G FOR GUILTY BEFORE TRIAL:
Unlike the regular provisions of the Criminal Law which functions with the principle
that an accused is innocent until proven guilty, the UAPA assumes that the accused is
guilty until proven innocent. It thereby gives an overwhelming power to the
government in relation to the judiciary and conventional procedures of law.

In effect, the UAPA allows the police to imprison people for years, while their trials
grind through the courts. The harsh bail provisions mean that no bail can be granted
unless the court is convinced that the accused did not commit the crime. Which means
that in order to give bail, the court must be convinced of the accused person’s guilt,
before the trial is complete! The UAPA allows the police to imprison people first, and
then ask questions about guilt or innocence years later.

H FOR HARASSMENT OF LAWYERS, BY LAWYERS

The hype of ‘all terror accused are guilty’ is so strong that Bar Associations from
around the country have passed resolutions asking lawyers not to defend terror
accused – thereby participating in a regime that seeks to destroy the fundamentals of
due process and constitutionalism. This betrays a lack of faith in Constitutional
provisions that only a legal process can establish innocence and guilt. Lawyers in
Mumbai, Chhattisgarh, UP and other states have bravely defied these calls by bar
associations to ensure that all terror-accused have a right to fair trial. Some of these
lawyers do so at great risk to their own personal safety. In fact, some lawyers who
defend terror-accused have been beaten up in court premises – by other lawyers!

I FOR IMPUNITY:
While cracking of ‘terror modules’ can bring laurels, gallantry awards and promotions
galore – there is never any accounting for, for the frame-ups. No one has to suffer for
destroying lives. The concept of malicious prosecution does not exist in UAPA, and
there exists no legal mechanism to bring errant police officers to justice. When UAPA
absorbed many of the draconian provisions of the recently repealed POTA in 2004, it
quietly dropped its Section 58 which had made it an offence if a police officer
“exercised powers corruptly or maliciously, knowing that there are no reasonable
grounds for proceeding under this Act’. (See also ‘Wrongful Prosecution’)

J FOR JAIL, NOT BAIL:

Provisions of CrPC and judicial observations (eg. Kashmira Singh v State of Punjab;
Motiram v State of MP) have tended to favour the grant of bail to accused to avoid long
pre-trial incarceration in the interests of justice. The provisions of the UAPA take us in
the opposite direction. In 2004, the UPA government repealed POTA. But through a
sleight of hand, reintroduced many of POTA's provisions into the UPA. One notable
omission was the bail provision. However, through amendments in 2008, the UPA
government reintroduced POTA's draconian bail provisions. Under these provisions,
the court must be convinced that on the face of the record, that the accused person is
innocent. For all practical purposes, this means that when applying for bail, the

11
accused person must prove his innocence. This is an unreasonable standard by any
accepted norm of criminal law.

K FOR KAFKASQUE:
Some of the provisions of UAPA are so bizarre that you wonder if its drafters haven’t
been reading The Trial, and drawing lessons not intended by Kafka. In 2012, the UAPA
was amended to broaden the definition of the term 'person' as 'an association of
persons or a body of individuals, whether incorporated or not. This sub clause actually
allows agencies and government to create persons 'beyond that what are recognized by
law’. Any group of friends/acquaintances can be labelled an 'association of persons or a
body of individuals' by the agencies and government even though they may not
recognise themselves as an organisation.

From a book reading club to friends who meet every evening at a dhaba, any collective
may be deemed to be an association of persons or a body of individuals.

Alongside the above amendment, the new and fortified UAPA also criminalized the
raising of funds “from a legitimate or illegitimate source… knowing that such funds
are likely to be used …by a terrorist organization”… “notwithstanding whether such
funds were actually used or not used” for the commission of a terrorist act – a crime
punishable for a term not less than five years but extendable to life.

It practically brings under the possibility of prosecution all transactions, even perfectly
legitimate ones, without the remotest connection to a terrorist act. Remittances that
workers send home from abroad, money raised by NGOs and social movements can all
be easily lumped under this. All that the prosecution needs to show is that the accused
had knowledge that such funds could be likely used for terrorist act.

12
L FOR LITERATURE:

In a large proportion of UAPA cases, the centrepiece of evidence is literature recovered

from the accused. IN SIMI cases, the usual ‘evidence’ is copies of Islamic Movement, the
organisation’s magazine before the ban. It is perfectly legal to possess copies of these
magazines as they predate the ban, but nonetheless this is what the case is mostly built
on. Obviously now the supplies of “SIMI literature” are starting to run out, and we see
now photocopies of Islamic Movement, SIMI receipts and other magazines beginning to
make their appearance. FIR No. 184/2008 PS Khajrana (Madhya Pradesh) for example
tried to pass off photocopies of front and last page of an old copy of Islamic Movement
as pamphlets!

In many cases the literature seized is not even banned by any government notification,
but because it is in Urdu, it is perceived as being suitably ‘unlawful’. Here’s a brief list
of some of the works that have lead to terror charges: The Prophet by Kahlil Gibran,
Capital by Karl Marx, and The Quran.

Standard principles of culpability are thus ignored in the actual execution of UAPA.

M FOR MEMBERSHIP:
The Police most often arrest people on the allegation that they are members of a
terrorist organisation. The Supreme Court has held that mere membership of a banned
organisation is not a crime, and doing so would be an unlawful restriction on
fundamental rights. What is criminalised is if in the course of one's membership one
incites violence. This distinction between mere membership and a form of membership
that incites violence is one that is ignored by the police.

13
In Arup Bhuyan vs State Of Assam. (2011) 3 SCC 377, the Supreme Court observed
with reference to Section 3(5) of TADA:

In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles
19 and 21 of the Constitution. Hence, mere membership of a banned organisation
will not make a person a criminal unless he resorts to violence or incites people to
violence or creates public disorder by violence or incitement to violence.”

*************

Similarly, in Sri Indra Das vs State Of Assam. (2011) 3 SCC 380), the Supreme Court
held:.

26. It has been submitted by the learned counsel for the Government before the
TADA Court that under many laws mere membership of an organization is illegal
e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the
Unlawful Activities (Prevention ) Act 1967, etc. In our opinion these statutory
provisions cannot be read in isolation, but have to be read in consonance with the
Fundamental Rights guaranteed by our Constitution.

27. The Constitution is the highest law of the land and no statute can violate it. If
there is a statute which appears to violate it we can either declare it unconstitutional
or we can read it down to make it constitutional. The first aR empt of the Court
should be try to sustain the validity of the statute by reading it down.”

*************

It is also worth reproducing here the judicial reasoning mobilized by the Supreme
Court in dismissing the state’s appeal against the grant of bail to Dr. Raneef by the
Kerala High Court. Dr. Raneef had been charged under different sections of UAPA
for the crime of offering medical emergency aid to an accused wounded in the
course of allegedly attacking and hacking the arm of Prof. Jacob. The accused
belonged to Popular Front of India, which had been upset at the professor for
criticizing and insulting Islam.

“In Scales vs. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court
while dealing with the membership clause in the McCarran Act, 1950 distinguished
between active `knowing' membership and passive, merely nominal membership in
a subversive organization, and observed:
"The clause does not make criminal all association with an organization which has
been shown to engage in illegal activity. A person may be foolish, deluded, or
perhaps mere optimistic, but he is not by this statute made a criminal. There must
be clear proof that the defendant specifically intends to accomplish the aims of the
organization by resort to violence."

14
 The Supreme Court also cited Justice Douglas speaking for the majority in Elfbrandt
vs. Russell 384 US 17-19 (1966):

"Those who join an organization but do not share its unlawful purpose and who do
not participate in its unlawful activities surely pose no threat, either as citizens or
as public employees. A law which applies to membership without the `specific
intent' to further the illegal aims of the organization infringes unnecessarily on
protected freedoms. It rests on the doctrine of `guilt by association' which has no
place here."
We respectfully agree with the above decisions of the U.S. Supreme Court, and are
of the opinion that they apply in our country too. We are living in a democracy,
and the above observations apply to all democracies.

M FOR MEDIA TRIAL:

Terror cases are fought more in the public mind than in the courtroom. Grand claims
are made but instead of placing solid evidence in the court, they will be leaked to the
press by the investigating agencies, either through their stenographers in the media, or
through high profile press conferences.

Muthiur Rehman, a journalist with an English daily, was arrested in 2012 in what was
tom-tommed as “the most ambitious Jihadist conspiracy since 26/11”. Commentators,
always aplenty, termed Rehman “the face of modern violent Islamic extremism”. He
was held up as example of how “the profile of the various groups that come under the
rubric of the ‘Indian Mujahideen’, can be from any segment of society.”11

Six months later Rehman was let off without even being charged. (See also ‘Extension’
above) The theory of modern jihadist was not revisited by its purveyors. It doesn’t
really matter. It was sufficient at that time to build and congeal the narrative of
Rehman’s guilt in the tribunal of public opinion.

In the recent arrests of activists under the UAPA, the Pune police held press
conferences flashing dubious letters that purportedly established the guilt of the five
activists. Miffed with the Supreme Court’s direction that these activists be placed
under house arrest rather than in police custody, the police also questioned, in the
press conference, the apex court’s intervention. The Supreme Court reprimanded the
Pune Police for “casting aspersions” on the court in the next hearing and warned
against holding more such press conferences. In almost all cases of media trial
however, there is never any accounting for the tarnishing of reputations, nor any check
on this brazen but all too routine attempt to influence judicial process through planted
stories.

11“Spectre of the Educated Terrorist: Professionals are the new face of terror as they swell the
Ranks of outfits like Indian Mujahideen”, by Abhishek Bhalla, The Daily Mail, 02 September 2012.

15
N FOR NHRC:
In 1995, Justice Ranganath Mishra, wrote to the members of the Parliament, exhorting
them to not renew TADA, which was up for review, dubbing it “draconian in effect
and character” and “incompatible with our cultural traditions, legal history and treaty
obligations”.

NHRC also opposed the Draft Prevention of Terrorism Bill, 2000 and the subsequent
Prevention of Terrorism Ordinance, 2001. Even so, it had seemed satisfied with the
safeguards introduced in POTA. In the case of recent spate of arrests of activists across
the country, it has taken suo motu cognizance of media reports, and issued notices to
the Maharashtra government to explain if the standard operating procedure in
connection with these arrests had been followed.” While this is welcome, the NHRC
has remained disappointingly quite on the question of constitutional principles that
many provisions of UAPA violate.

O FOR ORWELLIAN:

When engaging with the

topic of terrorism, the
police, government and
media engage speak in
ways that make a fair trial
impossible, and render any
form of democratic debate
suspect. For the police,
innocent reading of The
Rubayyat or the presence of
the works of Marx and
Mao becomes evidence of a
terrorist conspiracy, and
the media parrots
government propaganda
of ‘terrorist masterminds’
and ‘sleeper cells’.
Together, the police, media
and government create an
atmosphere in which to be
critical of the government
is not only to be
treasonous and anti-
national, but also to be part
of a conspiracy to
overthrow the state.

16
P FOR PROCESS IS THE PUNISHMENT:
Securing convictions is not the main aim of the agencies. The UAPA's stringent bail
provisions mean that once an accusation is made, accused people can spend years in
jail waiting for their trials make their way through the courts. Many will eventually be
acquitted. (See, ‘Jail, not Bail’ and ‘Conviction’)

But meanwhile, the accused suffer losses in business, social stigma, and see their
professional lives and families destroyed. They often emerge from the prison, broken:
physically, emotionally and mentally.

Q FOR QUESTIONING IS NOT ALLOWED:

This should be pretty obvious by now.

R FOR REVOLVING DOOR OF JUSTICE:

One sees a set of accused entering the criminal justice system, charged under a
readymade package of sections of UAPA (with some sections of IPC thrown in for
variety), denied bail, suffering long periods of incarceration, finally acquitted to make
way for another group of accused. Charges are always multiple and one can be re-
arrested from the prison gate on acquittal in one case.

In 2007, Arun Ferreira was arrested, slapped with eleven counts of cases, including
one, which is said to have occurred while he was still in jail; he was acquitted of all
charges in 2011. The same year, Sudhir Dhawale, editor of Vidrohi, and founder of
Republican Panthers who had played a key role in organizing Dalits in the aftermath of
the Khairlanji massacre, was arrested, again for Maoist sympathies. Dhawale was
acquitted of all charges just days after Saibaba was arrested in 2014. Dhawale has been
re-arrested in June this year in connection with Bhima Koregaon violence. Ferreira too
on 28th August 2018. The fact of their previous arrest and incarceration – never mind
the acquittal – serves to somehow justify subsequent arrests.

S FOR SUNSET CLAUSE:

Exceptional laws like TADA and POTA that diverged from the Constitutional rights
framework on the pretext of national security and integrity used to come with the
inbuilt sunset clause of periodic legislative review. The Parliament would determine,
from time to time, whether the situation still demanded the operation of such an
exceptional law, or not. So, in 1995, ten years after it came into being, TADA was not
renewed by the Parliament. POTA was repealed in 2004 after mounting evidence of its
lawlessness. UAPA however, despite the provisions drawn from exceptional laws,
pretends to be part of an ordinary legal regime. It does not have a sunset clause.

The incorporation of exceptional laws within the fabric of the ordinary laws in
ordinary times – when the country is not facing any critical external or internal threat –
undermines the fundamental rights guaranteed by the Constitution. It also diminishes

17
the role of parliament and the legislative process. Government and the executive
assume powers well beyond those that have been envisioned by our founding fathers.

S FOR STOCK WITNESSES:

The agencies usually complain, when the courts ask them about the absence of
independent witnesses during search and seizure, that ordinary citizens do not wish to
join the police parties on their raids. Unfortunately this is routine even though it is in
explicit violation of the Supreme Court ruling DK Basu vs State of Bengal where the
witness has to be a member of the family of the arrestee or a member of the locality. So
no doubt the agencies have developed a dedicated cadre of stock witnesses to
circumvent this problem. In a high profile SIMI case from Khandwa, the police’s main
witnesses were one Deepak and Bajrang Lad. Deepak was a member of the Bajrang
Dal, while Bajrang had a criminal case registered against him in the very same thana
that had called upon him to witness search and seizure operations! They were even
taken to Burhanpur, almost 70 kilometres away to witness another search op – as
though the police had divined that there would be no independent witnesses to be
found in Burhanpur.

In cases, which one would have thought deserved the highest standards of
investigation and professionalism, the story is no different. The Mumbai crime branch
produced Ajmeri Shaikh as a witness to the conspiracy in two different cases: Gateway
of India and Zaveri Bazar blasts in 2003. By a quirk of fate, if the ATS were to be
believed, he was also present outside the house of the main accused in the Mumbai
suburban bombings in 2006 (popularly called 7/11 because they took place on 11th July).
However, he was not made a witness but, Amar Khan, a close friend of his was. This
friend then went to appear as witness in another SIMI arms training case (Sessions
Case No. 861/2014).

Then there was Mr. Hari Popat. A witness in Gateway and Zaveri Bazar blasts, who
simply happened to be standing at platform number one of the Churchgate station on
11th July 2006, which allowed him to observe one of the alleged bombers carrying out
his activities at platform number four. Talk about being at the right place, at the right
time. Always.

T FOR TERRORISM:
When POTA was repealed in 2004, in fulfilment of the election promise made by the
incoming United Progressive Alliance, many of the provisions of the repealed law
were absorbed wholesale through amendments into UAPA 1967. Thus a new chapter
on terror crimes and a schedule of terrorist organizations was added to UAPA. The
government can declare any organization to be a terrorist one, if it “believes” it to be
so! Once declared terrorist, an organization has no way of challenging it. The decision
of the executive is arbitrary, completely devoid of judicial oversight.

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The definition of terrorism was a photocopy of POTA, retaining its biases (for example,
fomenting communal or caste violence does not amount to a terror act though
destroying government property does). It also included a range of acts already
covered under different acts. For example, in 2012, the production and circulation of
counterfeit currency was added to the list of terrorist offences even though they are
already covered under sections 489B, 489C, 489D of the IPC. When comparable
provisions in IPC and terror laws are available for same crimes, the police and agencies
are bound to exercise the option of booking an accused under the terror law because it
affords them greater leverage (see also ‘Draconian’ and ‘Unconstitutional’).

T FOR TRIBUNAL:
The UAPA claims for itself ‘reasonableness’ because apparently it allows the
organization declared unlawful to contest the ban in a tribunal headed by a sitting
judge of the High Court. In the Jamaat-E-Islami vs Union of India, the apex court warned
that the “Tribunal is not required to be a mere stamp or give an imprimatur on the
opinion already formed by the Central Government.” In reality though the
reasonableness and fairness is only a chimera. The only organisation which has
contested the ban consistently since it was banned in 2001 is SIMI – and every time but
for 2008, the tribunal upheld the ban on the basis of secret documents provided by the
state in sealed envelopes, to which representatives of SIMI had no access. Fairness
anyone?

In 2008, when Justice Gita Mittal lifted the ban finding no new material to sustain it,
the central government rushed to the Supreme Court, securing a stay on the tribunal
pronouncement the same day. Between 2001 and 2008, SIMI’s petitions in the Supreme
Court challenging the tribunal decisions upholding the ban had not been heard even
once. Due process, did someone say?

Remember though that an organisation once declared as a terrorist organisation or

terrorist gang has no recourse to even this apology of a due process.

U FOR, WELL, UNLAWFUL

Unlawful ‘unlawful activity’ as “any action taken by individual or association (whether
by committing an act or by words, either spoken or written, or by signs or by visible
representation or otherwise)”. In effect, this means the institutionalized silencing of art
that speaks of life, and every thought and idea that challenges the dominant narratives
of caste and social inequality. Basically anything that the government does not like can
be consigned to the overflowing category of unlawful.

The courts have read down these provisions of the UAPA in the light of Constitutional
provisions such as Article 21 (see Box in ‘Membership’), implying that a literal reading
of these provisions will not stand the scrutiny of constitutionality. However, instead of
following these judicial interpretations, the police are guided by a crudely literalist
reading of the provisions.

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U ALSO FOR UNCONSTITUTIONAL:
Here are some of the reasons why UAPA fails to meet the standards of Constitutional
principles:
1. UAPA casts such a wide net of offences that it makes all kinds of legitimate,
constitutionally protected activity an offence: the police can choose who they
want to prosecute, when and for what reason.
2. It inverts the most fundamental of legal principles: the presumption of
innocence: UAPA places the burden of proving one’s innocence on the one
being accused.
3. The Tribunal claims to be a judicial review of the executive’s decision to ban an
association. In reality it is not a full-fledged judicial scrutiny, which is simply
unavailable under UAPA, but a poor masquerade. Once declared unlawful, an
association, in effect, has to persuade the tribunal of its innocence (see Tribunal
entry also)
4. The UAPA allows the government to designate associations as ‘terrorist’
organisations without any real judicial oversight.
5. It allows for accused people to be held in custody for six months before they
will know what the case against them is. By comparison, persons accused of
murder will be entitled to bail as a matter of right if the police do not reveal the
entirety of its case within three months.
6. The bail provisions in UAPA were common to Prevention of Money
Laundering Act, 2002. In 2017, the Supreme Court struck the latter down,
calling these provisions "drastic"; and which "turned on its head the
presumption of innocence, which is fundamental to a person accused of any
offence". How can identical set of provisions be Constitutional in one case, and
unconstitutional in another?
7. The NIA, which prosecutes many of the UAPA cases, often withholds copies of
statements of witnesses recorded during investigation, in defiance of the
statutory right of an accused to receive the charge sheet in its entirety. In the
name of witness protection, the accused’s right to fair trial is compromised.

Remember the Supreme Court had also held TADA to be Constitutional in the Kartar
Singh case, but that did not stop Justice Ranganath Mishra from imploring the
Parliamentarians to abandon it. He recognized that the Supreme Court’s attempt to
water down some of its harshest provisions had been unsuccessful. Some of his
observations ring true today.

“The shift of the presumption makes it difficult for the TADA

accused to establish his innocence to get bail and the amendment of
the Code of Criminal Procedure keeps the accused in jail for a long
period of 6 months as against the maximum limit of 3 months
provided in Section 167 (2) of the Code of Criminal Procedure. If
investigation in a case of murder can be completed, in 90 days and
if not completed bail is admissible to a murderer as an automatic

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 process, there can be no justification for a longer period to be
provided in respect of TADA matter.
…
The plea that without this special law the integrity of our
motherland would be in jeopardy is a stand without merit. The law
and order machinery should not be permitted to operate any longer
under the cover of such a black law.”

V FOR VIOLENCE
Though in popular narrative, and occasionally even judicial logic (see ‘Conviction’
above), the spectre of unchecked spread and threat of violence looms large, if one were
to look at actual FIRs of UAPA cases, they are largely to do with conspiracies,
membership, furthering of unlawful activities by distribution of pamphlets and
posters, innocuous passing on of letters etc. In fact, as the entry on Unlawful explains,
violence is not a necessary ingredient of terrorism charges. Possession of literature,
books, and holding of ideas can be proof enough. Sometimes, simply belonging to a
demographic which has been shown to have an affinity to violence is enough.

W FOR WRONGFUL PROSECUTION:

In guaranteeing fundamental rights and due process, the Constitution also thereby
recognizes the requirement for State/executive/police accountability. However despite
the overwhelming evidence of tens of thousands of innocent citizens having
languished in jails for many years there is no legislative framework that allows for the
victims of wrongful prosecution to claim for compensation as a matter of their
fundamental right. Many cases of wrongful prosecution under UAPA have also been
documented.

The anomaly regarding the absence of a legislative framework to deal with so many
clear cases of injustice has been recently underlined by the Law Commission:

“It needs to be noted that Article 21 protects life and personal

liberty, and by virtue of judicial pronouncements, deprivation of
the life and personal liberty invokes the aforesaid public law
remedy of compensation, but there is no explicit provision in the
Constitution of India for grant of compensation by the State for
the infringement of right to life and personal liberty. In this
manner, the currently available remedies only create an ex gratia
obligation, and not a statutory obligation on the State to
compensate. A natural corollary of which is that while there is
judicial precedent enabling a victim of the said miscarriage of
justice to approach the Supreme Court and the High Courts
under their respective writ jurisdiction for relief, there is still no
statutory right of compensation for such victim/claimant” (p. 83)

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One may add that it is the lack of such a legislative framework that allows for
impunity. It may also be noted that the Law Commission also defines “malicious
prosecution” where the prosecution is said to be “in the abuse of legal process by
wrongfully setting the law in
motion, and it is designed to discourage the perversion of the machinery of justice for
an improper cause”. Yet despite recorded cases of “malicious prosecution” (see our
report Framed, Damned, Acquitted for over two dozen such cases in Delhi alone) firmer,
stringent and more punitive measures and proceedures have to be envisioned and
established to ensure that such prosecutions do not take place. By providing greater
powers to the government/police under the UAPA in the absence of such a leglislative
framework the scope for impunity and possible misuse of law is widened.

Y FOR YEARS SPENT IN PRISON:

Recent studies suggest that nearly 70 per cent of those arrested under UAPA are
acquitted at the end of the trial (see ‘Conviction’ above). Remember, however, that the
bail provisions (see ‘Jail, not Bail’ above) in UAPA mean that the entirety of the trial
period is spent in prison.

Also, because accused are slapped with multiple cases, acquittal in one case does not
mean release from jail, as other cases are often pending. Sometimes, when someone is
acquitted and released, his name is suddenly added onto old FIRS, or old cases in
which chargesheets have not been filed for years are revived. This is what happened to
71-year-old Kobad Ghandy, who spent more than eight years in prison. After being
acquitted in many cases and granted bail in others, he was immediately rearrested in
December 2017 for a case dating back to 2007. All the other accused in this case have
either been acquitted or granted bail. But Ghandy, against whom a chargesheet was
never filed in this case through the eight years he was in different prisons, was
rearrested just days after his release. He is today housed in Ranchi Jail. This is how
incarceration is indefinitely extended.

In some cases, cases are scattered across different states, and often accused are unable
to participate in trials in one state while lodged in another state. State governments
may also maliciously impede the trials of those in their custody. In 2008, Gujarat
Government took custody of close to 60 young men arrested by various state police
departments for alleged terror attacks and conspiracies in their states, on the plea that
they were all accused in the Ahmedabad serial blasts. Since then, the Gujarat
Government has actively blocked the trials of these men in different states invoking Sec
268. Imran, Atiqur Rehman and Mehdi Hasan, who were accused in a SIMI case in
Jaipur in 2008, could not stand trial as they were not allowed to travel from
Ahmedabad to Jaipur, though the remaining co-accused were all acquitted.

As the wheel of justice grinds slowly, months turn into years and years into decade.

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 Javed Ahmad Tantrey @ Sikandar and Ashiq Ali Butt 4 years
Md. Hassan, Shafaqat Iqbal and Shabbir Ahmed 5 years
Md. Ameen Wani alias Khalid and Luthfur Rahman alias 7 years
Haroon
Md. Iqbal and Mushtaq Ahmad Kallo 7 years
Parvez Ahmad Radoo 7 years
Sajjad HUssain Sheikh 8 years
Md. Iqbal @Abdur Rehman, Nazarul islam @Madhu and 3 years
Jalaluddin @Hamid @Babu Khan
Md. Mukhtar Ahmad Khan 5 years
Imran Ahmed & Anr 5 years
Tariq Dar 3 months
Gulzar Ahmed Ganai and Md. Amin Hajam 3 years
Salman Khurshid Kori 5 years
Hamid Hussain, Md. Shariq, Md. Iftekhar Ahsan Malik, 6 years
Maulana Dilawar Khan, Masood Ahmed, Haroon Rashid
Khongbantbum Brojen Singh 7 years
Mohammed Juber Sayyed Anwar, Abdul Azim Abdul Jalil, 10 years
Riyaz Ahmed M. Ramzan, Khatib Imran Akil Ahmed, Vikar
Ahmed Nisar Shaikh, Abdul Samad Shamsher Khan,
Mohammed Akil Ismail Momin and Firoz Tajuddin Deshmukh
Abdul Wahid Sheikh 8 years
Gaur Chakraborty 7 years
Kobad Ghandy 8 years
Surjeet Phool 5 months
Arun Ferreira 5 years

Z FOR ZEE NEWS:

But also Republic TV, Times Now and other rumour mongers, who at the behest of
agencies launch witchhunts of activists and demonise minorities by telecasting false
and fabricated material, passing of as evidence. Case in point, the concocted and self-
incriminating letters apparently exchanged between activists, providing in elaborate
detail their plan to wage war against the state.

It would all be hugely comical were it not for the real loss of liberty of those targeted
by these channels.

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