How the Modi govt is using UAPA as a weapon to suppress dissent

The Bharatiya Janata Party (BJP) had cited fundamental rights, including right to life and free speech of the people of Jammu & Kashmir being in danger, as one of its reasons for pulling the plug off the alliance with the Peoples’ Democratic Party (PDP). But when it comes to infringing the fundamental rights and personal liberty of individuals, the saffron regime has been tenacious in using the draconian UAPA or the Unlawful Activities (Prevention) Act.

The Raj-era legacy of using ruthless laws to stifle dissent has been carried forward with aplomb by successive governments in independent India and BJP regimes have been no different, using the UAPA as a tool to settle political scores or to crush voices rising against it.

Coming into force in 1967, UAPA since then has been amended thrice in 2004, 2008 and 2012 to become increasingly repressive, regressive and draconian.

The latest victims of one of the most controversial laws are five activists -- all working for the society’s most marginalised sections -- arrested in connection with the violence surrounding the annual celebrations at Bhima Koregoan memorial.

The Pune police on 6 June arrested and slapped UAPA charges on writer and Dalit rights activist Sudhir Dhawale, advocate Surendra Gadling, activist on displacement issues Mahesh Raut, university professor Shoma Sen and social activist Rona Wilson.

It has been over three weeks since the five were condemned behind bars but the zealot police continue to explore ways to intensify their culpability. From holding them liable for the violence at Bhima Koregaon to supporting and aiding Maoists to finally indicting them of conspiring to assassinate Prime Minister Narendra Modi in a "Rajiv Gandhi-type" incident, the police have changed their versions in order to justify the imposition of the stringent UAPA provisions.

Having worked all their life for the most marginalised sections of the society including Dalits and tribals, the five now face charges that include “intent to strike terror in the people of India”, “intent to threaten the unity, integrity, security, economic security, or sovereignty of India” and “raising funds knowing that such funds are likely to be used by a terrorist organisation to commit a terrorist act”.

Claiming the banned Communist Party of India (Maoist) to be behind the entire conspiracy, the police have now entirely taken away the focus from Hindutva leaders Sambhaji Bhide and Milind Ekbote, the duo booked for orchestrating the violence in Bhima Koregaon on 1 January.

UAPA as means of political vendetta

Describing the arrests as “political vendetta”, Sussan Abraham, the counsel for the five activists said the entire Maoist conspiracy and the slapping of UAPA was done to shield Bhide, Ekbote and the Hindutva brigade which was behind the 1 January violence.

“This is nothing but political vendetta. None of the five were named in the initial FIR. Only in March the case was converted into criminal conspiracy and in April, Gadling was first named. All the five have been working for Dalits and adivasis for years and are renowned for raising their voices against human rights violations,” Abraham told Catch.

Talking about the draconian UAPA, Abraham said the law with its sweeping definition of terrorist and unlawful activities, can get anyone and everyone booked.

“Unlike the Terrorist and Disruptive Activities (Prevention) Act, (TADA) and the Prevention of Terrorism Act, 2002 (POTA), the UAPA doesn’t have any ‘sunset clause’ ie, a provision of periodic review of the law. (Under sunset clause, a law shall cease to have effect after a specific date, unless further legislative action is taken to extend it).

“In that sense it is far worse than TADA and POTA. Moreover, with successive amendments it has only become more dangerous and has been rendered only as a tool of political vendetta, a tool to settle scores and stifle dissent,” said Abraham.

“In sharp contrast, we have seen how Hindu right-wingers accused in cases like Malegaon, Ajmer Dargah, Samjhauta Express, Mecca Masjid etc have been getting bailed or acquitted,” she added.

The highly abused POTA that was repealed in 2004 by the United Progressive Alliance, appears to exist in the form of UAPA, as all its controversial provisions have been included in the latest anti-terror law.

The BJP is not alone in abusing the UAPA. The Mamata Banerjee-led Trinamool Congress administration in West Bengal has used the anti-terror law against a host of protestors who have been opposing a Power Grid Corp of India Ltd (PGCIL) project at Bhangar in South 24 Parganas district.

What makes UAPA draconian?

Excessive powers to arrest, detain: Under the sweeping powers offered by the Act, an accused can be detained without a charge-sheet for up to 180 days and in police custody up to 30 days. Under any offence under the Indian Penal Code, the period of such detention is up to 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and 60 days where the investigation relates to any other offence.

Moreover, the UAPA also creates a strong presumption against bail and assumption of guilt for terrorism offences merely based on the evidence allegedly seized.

Onus of proof on the accused: India follows an adversarial justice system under which an accused is presumed innocent until proven guilty. The onus of proving the guilt is on the prosecution. In sharp contrast, under the UAPA, the onus of proof is on the accused to prove his innocence.

Criminalises ideology: The UAPA through its sweeping definitions empowers declaring any organisation ‘unlawful’ or ‘terrorist’ and banning it, which in effect criminalises the ideology followed by the organisation members. As such, mere possession of any literature supporting that ideology can be taken as an offence under the Act. Not just that membership or association with such an organisation also becomes punishable.

This provision has often been used by the authorities to silence activists fighting for tribal or Dalit rights. A classic example in this regard is public health specialist and celebrated activist Binayak Sen who was given a life term for aiding and associating with Maoist leader Narayan Sanyal.

In the case of the arrests of the five accused, the police have claimed to have seized “incriminating documents” indicating their links with “Maoist outfits”.

Speaking on the issue activist and People's Union for Civil Liberties (PUCL) Secretary Kavita Srivastava said the mere association or even a piece of paper can get one convicted under the UAPA.

“UAPA in the hands of the government is a hammer with which it is crushing voices that speak for the voiceless. From Binayak Sen to professor GN Saibaba and now these five activists we have seen how the UAPA has been used as a political tool.

“UAPA is draconian because it criminalises association, it criminalises ideology and criminalises even intent. A mere paper in your possession can get you convicted for life,” Srivastava told Catch.

Both Abraham and Srivastava cited the Gadchiroli Maoists case to point out the ugly face of UAPA.

In 2017, a court in Gadchiroli sentenced wheelchair-bound Delhi University professor Saibaba and four others to life imprisonment. Suffering from 90% disability, Saibaba along with Hem Mishra, Prashant Rahi, Mahesh Tirki and Pandu Narote were sentenced under UAPA for aiding and abetting Naxal activities.

Among the incriminating articles seized by the police from Saibaba included CDs—with titles like “Video on Sri Lankan War Crimes,” “A Few Myths & Facts About Salwa Judum Concentration Camps,” etc.

On the other hand, Tirki was condemned for life on the basis of documents recovered from his possession that included a pamphlet that opposed the Surjagarh mining project in Gadchiroli, the 2006 Khairlanji massacre and Operation Green Hunt

Incidentally Gadling was the lawyer defending Saibaba and others in the Gadchiroli Naxal case.

Among others to fall prey to the UAPA are Bastar-based journalists Santosh Yadav and Somaru Nag, who were arrested by Chhattisgarh Police for “links with Naxals and of involvement in operations against the security forces”. Both were later released after months of incarceration.

Repealing UAPA need of the hour

“UAPA has been used mostly to targets tribals and Dalits who have dared to raise their voices in protest. Thousands of them are behind bars across the country, facing charges under UAPA. Pending trial, they are rotting in jails for years.

“One can go on and on talking about how draconian UAPA is and how it has destroyed lives of people across the country especially tribals and Dalits. While governments across the country have been using to suppress resistance, the BJP regime appears to have perfected the art. The only way to prevent further damage is to immediately repeal it ,” said Srivastava.

Condemning the arrests of Dhawale, Gadling, Raut, Sen and Wilson, rights activists Shabnam Hashmi said the slapping of UAPA was the culmination of the BJP’s witch-hunt against Dalit and tribal rights activists.

“Ever since the Narendra Modi government came to power, it has been targeting activists and organisations working for tribals, Dalits and the marginalised sections of the society. From unleashing probe agencies, to canceling licenses to arresting activists the saffron brigade has gone all out in its bid to stifle the voices that rise against it. The imposition of UAPA on activists at the drop of a hat is the culmination of that,” Hashmi told Catch.

Hashmi founded the Act Now for Harmony and Democracy (ANHAD) a NGO in the aftermath of the 2002 Gujarat riots. The Union Home Ministry in 2016 had cancelled foreign funding registration of ANHAD citing "undesirable activities against public interest".