UAPA - The Law Designed to Silence Dissent - A Legal Analysis

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The Unlawful Activities Prevention Act (UAPA) has always been declared as a truly ‘draconian’ law. However, the 2019 amendments and the recent arrest of Student Leader Umar Khalid (The Wire Staff 2020) under the ambit of this law has sparked the conversation in relation to this act once again, but what exactly does this act even do? Let’s look at a short summary of the original act and then assess the amendments in the act that have stirred up the conversation related to the law once again.

The previous version of the Unlawful Activities (Prevention) Act allowed for the Central Government to declare an organization as a terrorist organization under two circumstances, the first being if the United Nations Security Council declares it to be one and/or the government “believes” that an organization has been involved in terrorism. Note the word ‘believes’; this implies that the Central Government has never had the need to have hard and legitimate evidence to declare an organization as a terrorist organization. It simply needs to “believe” that the organization was engaged in terrorism. Now let’s take a look at the amendments to this law.

The amendments that were made in 2019 have greatly increased the power that the government has in terms of prosecution. In all occasions of the law, the term ‘organization’ has been replaced by ‘organization or an individual’. This means that individuals don’t necessarily need to be affiliated with a ‘terrorist organization’ to be declared as a terrorist and thus, be prosecuted. Therefore, the central government can essentially target specific people and bring them in on the basis that they are a terrorist. Now, why is this problematic?

It looks great on paper. It seems common sense that individuals affiliated with terrorist organizations would not always come out in support of it. However, The reality is that the law provides an immense amount of power to the Central Government and allows it to essentially prosecute an individual or a group of individuals purely on the basis that it ‘believes that they are terrorists’. It also states that any person can be kept imprisoned for up to 6 months before they are to be brought in front of a tribunal that judges their innocence. It is also convenient that a tribunal to judge a person's innocence is composed of a single judge. While this is standard practice in terms of criminal law, what needs to be understood is that tribunals will be composed of judges that are put there by the Central Government. Meaning, it is the State Vs. The Individual/Group with the decision being taken by someone who has been placed there by the Central Government. This very clearly brings in the potential of bias, and thus, taints the system.

The law also states that, ‘no person shall be appointed unless “he” is a judge of a High Court’ in regards to the tribunal. Now, while this law does not mandate that the judge be a ‘he’, with the term ‘he’ essentially being used in the same connotation as ‘they’: a placeholder in regards to referring to an individual whose gender one does not know of, the widespread use of the term in legal language is problematic and enforces gender norms very subtly. The language of the law thus reinforces gender norms while also ruling out any possibility of a system of checking power. This allows for the law to be used to harass or scare individuals by threatening them with imprisonment if they speak up.

On the topic of innocence, it should be noted that the process to be removed from the terrorist status requires an application to the central government. This is a process that is dictated entirely by the Central Government. On top of that, in the preliminary stage, when an application is submitted, it is upto the Central Government whether it wants to accept or reject the application. In case it decides to reject the application, further appeals are complicated and dictated on the terms of the central government. This presents an uphill battle for the individual which goes against the very basics of criminal law.

The matter is that it is the organization or the individual who has to prove themselves to be innocent rather than the prosecutor having to prove that the accused is guilty. Therefore, the principle of this law is ‘Guilty until proven innocent’ which goes against the very premise of Criminal Law in which an individual is ‘Innocent until proven guilty beyond a reasonable doubt.’

Another aspect of this law comes from the fact that the things that are required to actually attempt to prove an individual’s conviction (as in the burden of proof) is dismally low. A simple example being that ‘terrorist literature’ can be classified in ‘promoting terrorism’, however, since the term itself is not defined anywhere in the law, the government can declare any piece of literature to be seditious and use it to jail someone. A similarly frustrating point to consider is that due to the amendments made to the law in 2004, the process to get bail is incredibly tough and almost impossible. To get bail, the court must be convinced that the arrested person is prima facie (meaning “at first sight”) innocent of the crime that they have been accused of. This is made even more difficult when any evidence, arbitrarily deemed seditious can be presented against the accused.

The law therefore clearly violates the basic principles on which the judicial system of India is based such as the ‘Right to Due Process of Law’ and the ‘Right to Dissent’.

In all honesty, what needs to be understood is that those who are innocent will in all likelihood be declared as innocent. However the length and complexity of this process brings into question the intention behind the law. Adding onto this, the stigmatization and the torture an individual is likely to undergo in custody of the police (something which is very common), places an immense amount of mental trauma on the individual involved and stresses their professional and personal life going forward. Therefore, in all likelihood and as the majority of the arrests show, the UAPA is a law that is designed to give arbitrary powers to the government and allow them to harass, silence and oppress any and all who speak against it.