How the Indian government is misusing anti-terror legislations, and why the world needs to do something about it.
The unprecedented rise in countries exhibiting authoritarian tendencies throughout the world in the past few years, and the large number of human rights violations committed by state actors is a matter of concern not just for the particular country’s political, social and economic circles, but also for the international political community. The rise of hybrid and outright dictatorial regimes, built around despotic undemocratic principles such as concentration of power, majoritarianism and militant nationalism, is the greatest threat to the democratic world. Moreover, these regimes play a major role in influencing and disrupting democratic practices in other nations, as well as using their power and the international stage to promote ideas and values that go against basic principles of not just equality and freedom, but also human rights.
One of the most effective tools used by leaders, often elected democratically, who seek to concentrate political power and preserve the political status quo that helps them achieve positions of power, are legislations that place restrictions on human rights and civil liberties, the most common being anti-terrorism laws. While governments claim that anti- terrorism legislations are important in terms of preserving and bolstering the security of the state and its citizens, they are often used by governments to legalise actions that would otherwise be unconstitutional, and infringes on the civil liberties of individuals. One such law is being used arbitrarily by the Narendra Modi government against those who don’t conform to the regime’s ideology or instruction, and present a threat to the status quo that allows for anti-minority elements to have complete impunity to engage in hate speech, arson and outright murders. This also allows those in higher positions to profit and provide profit to their cronies, particularly large corporations, such as Mukesh Ambani’s Reliance, and Gautam Adani’s Adani Group, without public interference, as any form of dissent can easily be labelled as unlawful.
The Unlawful Activities (Prevention) Act, 1967, is aimed at the prevention of unlawful activities and associations in India, and had been passed with the objective of making available powers to deal with activities that may present a threat to national security. However, the law has been described by Indian political parties, activists, non government organisations and international human rights organisations as being draconian, and a means to allow the government to silence dissent. The provisions of the act are in contravention to the International Covenant on Civil and Political Rights, to which India ratified on 10 April 1979. A 2019 amendment to the act, gives the central government the power to designate organisations as terrorist organisations based on activities that are described in unclear terms. The same amendment also allows the central government to designate individuals as terrorists in an autocratic manner. The kin of those charged under UAPA also face hardships, as an accused is labelled as a ‘terrorist’ even before the conclusion of the trial, since the burden of proof is on the accused. The act contains numerous vaguely worded definitions and provisions, that are open to interpretation, such as “likely to threaten” and “promote terrorism”, giving the investigating authorities, and in turn, the government, the power to arrest anyone it wants to, by saying that their actions were “likely to threaten” national security. These broad definitions have been used by the government to file charges against individuals arbitrarily, as was seen in November 2021, when 102 people were booked under UAPA for posting on social media regarding violence in the BJP-ruled state of Tripura.
Furthermore, the National Investigation Agency has the authority to seize the properties of those arrested under UAPA. The accused also find it exceptionally difficult to secure bail, as normal bail rules do not apply to them, under the provisions of the act.
In recent years, the law has frequently been used by both the Union and state governments to stifle political expression that is against the ruling dispensation. The widespread and completely arbitrary use of UAPA has lead to situations where accused have spent years in custody, and have even died, before acquittal. Between 2014 and 2020 alone, 10,552 Indians have been arrested under UAPA — but only 253 convicted. The dismal conviction rate of UAPA cases of 2% is further evidence of its misuse by the state.
Some of the most infamous arrests under the law were made in the aftermath of the protests against the Citizenship Amendment Act (CAA) in 2019–20, which were organised in order to force the government to repeal the controversial CAA, that allowed refugees from neighbouring countries to gain Indian citizenship on the basis of their religion, while notably excluding those of Muslim faith. This, in combination with the proposed National Register of Citizens, which called for the identification of illegal immigrants, acted as a sieve, through which the state could take away citizenship from a significant portion of India’s Muslim population, and place them in detention centres, while those of other religions, who were declared as illegal, could come back to India under the provisions of CAA. Umar Khalid, Sharjeel Imam, Safoora Zargar and Akhil Gogoi were prominent activists arrested during this time.
In yet another demonstration of how the law is used to muzzle the press, journalist Siddique Kappan was arrested and charged under UAPA for attempting to report on the brutal rape and killing of a Dalit girl in Uttar Pradesh, which raised questions about the law and order situation in Uttar Pradesh under BJP rule. However, perhaps the most stark example of the weaponisation of the Unlawful Activities (Prevention) Act, was its use against those accused in the 2018 Bhima Koregaon violence case.
After violence broke out in the aftermath of the annual Elgar Parishad convention at Bhima Koregaon in 2018, meant to celebrate the 200th anniversary of the Battle of Bhima Koregaon, authorities arrested 16 individuals on charges of conspiring to bring down the Indian government as well as for being associated with the banned Communist Party of India (Maoist), and charged them under UAPA. Later on, in the 10,000 page chargesheet filed by the National Investigation Agency, it was claimed that the accused were member of outlawed Maoist organisations, and had given inciting speeches at the Elgar Parishad convention. It was also claimed that they were plotting to assassinate Prime Minister Narendra Modi. The accused were Jyoti Raghoba Jagtap, Sagar Tatyaram Gorkhe, Ramesh Murlidhar Gaichor, Sudhir Dhawale, Surendra Gadling, Mahesh Raut, Shoma Sen, Rona Wilson, Arun Ferreira, Sudha Bharadwaj, Varavara Rao, Vernon Gonsalves, Anand Teltumbde, Gautam Navlakha, Hany Babu and Father Stan Swamy. All of the accused were working for the rights of tribals, Dalits and other marginalised communities in India, and had often been critical of the government and its pro-corporate stance that had claimed the lives, homes and livelihoods of various individuals from these communities. The allegations levelled against them were based primarily on evidence retrieved from electronic devices. However, a report released later by digital forensics firm Arsenal Consulting demonstrated that the evidence against some of the accused was planted by an unknown attacker. All the accused were put in custody before the trial began, and faced dismal conditions during their incarceration , including, but not limited to non-availability of medicines and hot water. One of the accused, 80 year old Father Stan Swamy, who suffered from Parkinson’s disease, was denied a straw and sipper, which would enable him to drink water and other liquids, by the authorities, for more than four weeks. During his time in prison, Father Stan Swamy fell gravely-ill, and even contracted COVID-19, but was not given interim bail by the court. He died on 5 July 2021, ahead of his bail hearing, due to inadequate health facilities in the prison. Most of those accused in the Bhima Koregaon case are still behind bars, despite no new evidence coming to light.
The various cases of arbitrary arrests and unjust incarcerations under UAPA demonstrate how the legislation is being used by the Modi government to engender systematic impunity against prosecution for violation of human rights. Under UAPA, especially after the 2019 amendment, it has becomes extremely easy for the government to label any act of political expression as an act of terror. Laws like UAPA have the ability to make constitutional remedies available to accused, such as bail, entirely meaningless, while providing the state with limitless power and authority, and thus allowing democratic governments to take on authoritarian tendencies.
In a democracy, the main opposition to the government is not from the political opposition in the parliament, but from the civil society and the free press. Such legislations, that place unreasonable restrictions on constitutionally guaranteed rights, and give the state complete impunity to engage in human rights violations are undemocratic, and must be repealed unconditionally. Moreover, these laws are dangerous not only for a particular country and its citizens, but in an increasingly globalised world, can become a threat to the world order itself, by allowing governments to take on unchecked power — something that has the ability destabilise entire regions. Thus, it is critical for both Indian citizens, and the global community, to call upon the Indian government to refrain from using laws like UAPA to stifle freedom of speech, as well as repeal it unconditionally. Despite a number of international guidelines and treaties having been formulated, the presence of such laws in the constitutions of countries that call themselves democracies, and their constant misuse, is ample evidence that even though
steps have been taken in identifying and trying to stop the violation of human rights by the international community, we still have a long way to go. In most of the cases, the broader international community, and the West in particular, cease to take action against such violations by state actors, mainly due to the existing policies of nonintervention and the prevailing concept of sovereignty. In the case of human rights violations in India, particularly in the disputed region of Kashmir, countries like the United States have deliberately looked the other way, and allowed the Indian government to continue its assault on democratic institutions, as they see the former as a challenger to China in the region. However, in cases of human rights violations, whether by state or non state actors, it is essential that the world leave aside its policies of nonintervention, and take decisive action in order to safeguard the rights of those living under the threat of authoritarianism. In a democratic setup, like that presented by the United Nations, it is essential for a nation to be allowed to chastise another, and to deny this, in the words of Lloyd N. Cutler, “twists the principle of non-intervention to the point where it totally contradicts a basic purpose set forth in Article 1 of the UN charter — respect for human rights and fundamental freedoms”.
