Delhi HC calls out misuse of UAPA for arrest of Pinjra Tod activists: All you need to know about the law

The Delhi High Court on Tuesday granted bail to JNU students Natasha Narwal and Devangana Kalita and Jamia Millia Islamia student Asif Iqbal Tanha, who were arrested under the stringent Unlawful Activities (Prevention) Act in connection with a case related to a larger conspiracy in the northeast Delhi riots in February last year.

A bench of Justices Siddharth Mridul and Anup Jairam Bhambhani set aside the trial court's orders denying bail to the three accused and allowed their appeals.

The court sharply criticised the State’s “anxiety to suppress dissent”, due to which the line between “the constitutionally guaranteed right to protest and terrorist activity” has been blurred.

What is UAPA act and what were the 2019 amendments?

The Unlawful Activities Prevention Amendment (UAPA) Bill was an anti-terror legislation that seeks to designate an individual as a “terrorist”, which was passed by the Parliament in 2019.

The Bill seeks to empower the Centre to designate an individual a “terrorist” if they are found committing, preparing for, promoting or involved in an act of terror. A provision already exists in Part 4 and 6 of the law for organisations that can be designated as a “terrorist organisation”.

The designation of an individual as a global terrorist by the United Nations is associated with sanctions including travel bans, freezing of assets and an embargo against procuring arms. The UAPA Bill, however, does not provide any such detail.

Under UAPA, investigative agencies get 180 days to probe a case, compared to 60-90 days under ordinary criminal law. This means an accused is eligible to apply for bail only after six months.

Until 2019, the police needed to establish that those arrested in UAPA cases were members of banned organisations to secure a conviction in a court of law. But an amendment made in July that year has enabled the government to designate any individual as a “terrorist”, bypassing the need to establish membership or association with banned groups.

On 2 August, 2019 Home Minister Amit Shah said in Lok Sabha that four-level scrutiny has been provided in the amendment and no human rights will be violated. He said declaring individuals as terrorists is required as they float different organisations once an institution is banned.

Charges against Narwal, Kalita and Tanha are pertaining to Sections 15, 17 and 18 of the Act. While Section 15 engrafts the offence of 'terrorist act', Section 17 lays down the punishment for raising funds for committing a terrorist act and Section 18 engrafts the offence of 'punishment for conspiracy etc. to commit a terrorist act or any act preparatory to commit a terrorist act', according to LiveLaw.

As a law that deals with terrorism, the UAPA has a stringent provision under Section 43 D(5) that bars the courts from awarding bail if, from a perusal of the case diary or the chargesheet, there are reasonable grounds to believe that the accusations against a person is prima facie true.

The Parliament, in the latest amendment to UAPA in July 2019, has proscribed individuals and their activities by naming the individuals as terrorists even though they may have no affiliation with any of the 36 terrorist organisations referred to in the First Schedule of the Act.

What are among the landmark cases under UAPA?

According to data provided by the home ministry in March, a total of 1,126 cases were registered under UAPA in 2019, a sharp rise from 897 in 2015. At the end of 2018, of the 2,008 cases, only 317 were sent to trial, according to Hindustan Times.

The UAPA is an anti-terrorism law that has been used against activists associated with the Bhima-Koregaon movement, the citizenship law protesters, and a journalist on his way to cover the Hathras rape and murder. The provision has been used against tribals in Chhattisgarh, those using social media through proxy servers in Jammu and Kashmir, and journalists in Manipur, among others.

Among others charged under UAPA include Akhil Gogoi, a Right to Information Act activist; Safoora Zargar, a research scholar from Jamia Millia Islamia; Anand Teltumbde and Gautam Navlakha, both of whom have done seminal work in protecting India’s most vulnerable communities, namely the Dalits and Adivasis; Masrat Zahra, a 26-year-old internationally-acclaimed photojournalist; Umar Khalid for allegedly instigating the Delhi riots with his speeches at anti-CAA rallies; and Gowhar Geelani, a Kashmiri author and journalist, for his social media posts.

National Crime Records Bureau (NCRB) from October last year indicate Assam and Manipur have a higher number of cases registered under UAPA as compared to Jammu and Kashmir since 2014, an Outlook report said. For instance, in 2017, the total number of cases registered in Manipur was 330, while in Jammu and Kashmir only 156 cases were registered during the same year.

How UAPA is different from TADA

The bail orders for Narwal, Kalita and Tanha also refer to how the Supreme Court itself, in the 1994 case of Kartar Singh v State of Punjab, flagged similar concerns against the misuse of another anti-terror law, the Terrorists and Disruptive Activities (Prevention) Act, 1987.

The Terrorist and Disruptive Activities (Prevention) Act, 1987 was earlier the main law used in cases of terrorism and organised crime, but due to rampant misuse, it was allowed to lapse in 1995. The Act defined a “terrorist act” and “disruptive activities”, put restrictions on the grant of bail, and gave power to detain suspects and attach properties. The law made a confession before a police officer admissible as evidence.

The Prevention of Terrorism Act (POTA), 2002 was enforced in wake of the 1999 IC-814 hijack and 2001 Parliament attack. A suspect could be detained for up to 180 days by a special court. The law made fundraising for the purpose of terrorism a “terrorist act”. A separate chapter to deal with terrorist organisations was also included. The Centre could add or remove any organisation from the schedule. However, the Act was repealed in 2004.