Dissent in a Democracy: Political Imprisonment under the UAPA in India

The Unlawful Activities (Prevention) Act is a legacy of the Britishers that continues to haunt our postcolonial liberal democratic system. This colonial act simply meant that anyone speaking against the rule of the coloniser, would be subjected to imprisonment. Historically, any person who has raised their voice against the colonial system can be said to have become a political dissenter set out for imprisonment, in the eyes of the law. However, 75 years post our separation from our colonial rulers, as we concurred to be a democracy that upholds values of liberty and tolerance, our state yet finds importance in rules that quash any stances of dissent. The rampant and incontrovertible political imprisonment in our country begs certain important questions and begins with asking: Why dissent is met with such resistance in a democracy? A democracy by definition is a system where leadership is elected by diverse people with diverse opinions, who all have a right to pursue their own interests and represent their opinion. Then when is it the case that the state feels threatened by certain people, ideologies and opinions; why does the state take it as its prerogative to guard certain ideals over others? What space does dissent have in a democracy?  What does a democratic state expect from its citizens when it claims that the criticism of the government and keeping elected leaders in check, is cardinal to its core as a democracy. These are some important questions that lie at the crux of the issue of political dissent and imprisonment as we see today in India. 

The History of the UAPA 

The colonisers came up with many laws to curtail any movement against their rule. In 1908, the Criminal Law Amendment Act first used the term “unlawful association” to criminalise the Indian national movement. Ironically, post-independence, the government uses the same powers to curb political dissent by the use of laws such as the UAPA (Singh 2012). One of the draconian acts that the colonisers implemented was  the Prevention of Seditious Meetings Act, 1911, which carried forward into the Indian democracy’s legislature as the Maintenance of Internal Security Act (MISA) in 1971, the National Security Act (NSA) of 1980, the Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1985, the Prevention of Terrorism Act (POTA) of 2002, and then the amendments of the Unlawful Activities (Prevention) Act (UAPA) of 1967 in 2004, 2008, 2012 and 2019, all further restricting the fundamental rights to freedom of expression, association, and assembly (Gerlach et al: 129). One of the most important lineages of the UAPA is the Anarchical and Revolutionary Crimes Act or the Rowlatt Act of 1919 that were passed by the Imperial Legislative Council.  Durba Ghosh (2017), in her text titled Gentlemanly Terrorists writes, 

These ordinances and bills authorized the arrest and detention of those suspected of revolutionary and radical politics, and officials rationalized what were considered extraordinary legal measures as protections to the process of constitutional reforms. While many in Britain believed that political change would evolve slowly with the cooperation of appointed and elected Indian elites, the periodic resurgence of the revolutionary terrorist movement seemed to demonstrate that British rule was confronted by a security risk that required extraordinary police and legal intervention.

The intent, impact and outcome of such laws is a direct conflation of—proper acts of terrorism that cause harm to the people of the nation and any voice of opposition that supposedly puts the “soverienty” of a nation in grave peril. Thus any voice and act that is antithetical to the principles of those in political authority, becomes that from which the nation, its sovereign identity and its citizens require protection from. So, the state conveniently suppresses any ideas that are not in favour of its absolutism in the garb of safeguarding the interests of its subjects. The point of course is that theoretically democracies are upheld because of the agency that it grants to its legislative, electoral, judicial, economic and other such extensions. Chantal Mouffe, in her book titled The Democratic Paradox talks of creating a true liberal democratic society that would give equal space to antagonistic voices thereby upholding the right to expression of those voices within a polity that are dissident and competing (Mouffe 2000). However, in actuality, a democracy like that of India comes with its loopholes that enable the hegemonic tendencies of those in power, and thus successfully retain and implement laws like the UAPA. Thus, the point really is that postcolonial democracies do not quite uphold that true normative ideal of democracy (Chatterjee 2011). 

There is first the question of why laws like the UAPA survive, and second why does a person who committed treason by being a threat to colonial power and was thus deemed a “terrorist,” become a political prisioner in today’s India where fundamentally/ideally we have a freedom to expressly practice a life of our own design and criticise those in power for varied reasons. Anushka Singh in her book Sedition in Liberal Democracies writes that “treason in today’s liberal democracy is the act of either making efforts or actually waging war against the state represented by the ruling government” (Singh 2018: 47). It is important to understand that UAPA was retained as an anti-terror law, and through the decades it has more so coverged with laws like the sedition law^[1] to become an anti-dissent law. Anushka Singh articulates this as the “legal marriage” between the sedition law and UAPA, she writes: 

At the cost of generalization,  it may be said that UAPA's association with sedition is for the ‘containment’ for what sedition cannot ‘contain’... [w]hile the use of sedition defers bail initially as it requires bail orders from sessions court and above, the use of UAPA nearly obliterates the possibility of bail in most cases. (Singh 2018: 260)

The point thus, that many scholars have made is that the UAPA is a political stalemate wherein once one is charged with it, there is no easy way out. The amendment made to Section 43D (5) of the UAPA as a consequence of the Bombay terror attacks in 2008, makes it even harder for the person accused to seek bail. 

The Amendment introduced Section 43D (5), which required a Court to deny bail if there were reasonable grounds to believe that the case against the accused was prima facie true. The provision made bail difficult to secure, since it required the Court to assess guilt only by looking at the charge sheet prepared by the National Investigation Agency (NIA). The accused cannot provide any evidence outside the chargesheet in their defense. (Supreme Court Observer).  

The form and disposition of the act is such that it equips the government with, as Anushka Singh mentions in her EPW article, “unremitting power.” As it increases police power to arrest, search and seizure (Sections 43A and 43B), makes all offences cognisable (Section 14, 43D[1]), enhances the ­period of detention (Section 43D[2]), undermines the power of the court to demand the attendance of accused in their trials (Section 43D[3]), disallows anticipatory bail (Section 43D[4]), enhances the restriction on bail (Section 43D[5]), presumes the guilt of the accused (Section 43E), permits in-camera trials and the withholding of the identity of the witness (Section 44), and finally allows intercepted communications to be used as evidence (Section 46). All these pro­visions entail overwhelming powers to the executive (Singh 2012).

Thus, the UAPA act has come to the government’s aid each time they have wanted to crush the powers of anyone who has attempted to stand in opposition to the governments’ systems and ideologies. Overtime, one can see that the UAPA did not become a law against people who perform terrorist activities and harm groups of people, rather the purview of the idea of a “terrorist” broadened to accomodate any dissenting voice. It can be seen that after 1967, many amendments have been made to this provision and how at different points in time this has only strengthened the hegemonic tendencies of the governments. The paradox, that Anushka Singh also points out, is that ‘Deshdroh' 'Rajdroh' are such catch words that have been celebrated in the context of India’s anti-colonial struggle, however, those very terms today are used to “carve a space in public psyche as acts that are criminal” (Singh 2018).

A brief overview of the amendments to the UAPA over the years, over various government regimes 

It can be said that major changes to the UAPA act started taking place after the year 2004. The amendment made in 2004, was in lieu of the removal of POTA, a promise that the then UPA government made during their election campaign. “The amended UAPA made substantial changes to the definition of ‘unlawful activity’, included the definition of ‘terrorist act’ and ‘terrorist organisation’ from the repealed POTA, and also introduced the concept of a ‘terrorist gang’” (Wire 2017). It was seen that many provisions from POTA were directly duplicated in the UAPA amendment, while on the face of it, punitive acts like the POTA and TADA were being done with.  

However, the Mumbai terrorist attack of November 2008 riled up the public sentiment as well the severity of the law in cases of terrorist attacks. This particular event led to bringing back some of the most abusive provisions that were mentioned in POTA and TADA, for which those acts were done away with in the very first place. The 2008 amendment broadened the definition of the term  “terrorist act”; under section 43A they could arrest anyone unless there was proper evidence to prove otherwise, it extended the pre-charge detention to 180 days, then it further gave the courts the right to reject bail if the court sees any evidence as “prima facie” true; the presumption of innocence and right to a fair trial, that is also a constitutional right is denied to accused; and under section 51A of the bill, the government has the power to “freeze, seize… attach and prohibit” the funds of the individual accused. (EPW: Nair 2009)

Though all these provisions were in direct conflict with the UN’s rapporteur on counterterrorism acts as well as International Covenant on Civil and Political Rights (ICCPR), and also with some of the fundamental rights in the Indian constitution, yet the UAPA amendments of 2008 were passed. 

Ravi Nair, in a commentary in 2009 wrote: 

Certainly, the government needs to ensure that there are effective law enforcement mechanisms to prevent and punish terrorist attacks. But grafting past draconian, and discredited, terrorist laws to the ordinary criminal justice system will not achieve this objective. The rushed December 2008 UAPA amendments merely reveal that the government lacks any  new ideas about how to tackle terrorism  in India. 

The lack of imagination of the elected leaders of a dynamic democracy like that of India’s, led to the furthering of exploitative laws that became conveniently handy and partisan to all governments. 

Further, On 3 February 2012, the central govern­ment made another attempt at violating the rights of people through the notification of setting up a specialised body called National Counter Terrorism Centre (NCTC). It authorises the UAPA to exercise the power to ­arrest, search, etc, without consulting the state governments. The 2012 Amendment made the act more rigorous, leaving only a small possibility of acquittal. In 2010, India joined the Financial Action Task Force which aimed to fight money laundering and terrorist financing, India planned to implement the legislation of this task force, by 2012. To keep with the terms of this task force, a bill was passed to make amendments to the UAPA. An SAHRC article written in EPW, titled “An International Trojan Horse? Need for Review of UAPA Bill 2011”
  mentions: 

In particular, the Bill amends the UAPA to lengthen the period in which a group may be banned before judicial review and it permits the government to deprive individuals of property without conviction for any of these crimes. Further, it could be easily abused to permit prosecution of mass organisations or non-governmental organisations (NGOs) working in communities allegedly associated with banned groups. The flaws in this Bill are too grave to be ignored in the name of security. 

It is important to understand that through these amendments to the UAPA, similar provisions to those of the POTA and TADA — that were revoked at some point due to their hegemonic tendencies—were being restored through this period. As seen in the pages of EPW, many cases of people charged under the UAPA, bring about the absurdities and extremities of this law, and the kind of suffering that people under trial have faced. 

After 2012, the most recent amendment made to the UAPA gives powers to DG, NIA to attach properties acquired from proceeds of terrorism. The bill increases the ambit of who qualifies as a terrorist and empowers the government to designate individuals as terrorists. Prior to the Amendment, only organisations could be designated this way and individuals were not covered. The 2019 amendment further strengthened the power of the centre and blurred the category of who is a terrorist or what maybe a terrorist act. The decade of the 2000 witnesses how the category of those accused under the UAPA further becomes vague, and how a political prisoner is almost anyone who questions authority, and thus irks it in such a manner that they are subjected to arbitrary detention and made to lose their basic freedoms. 

Thus, we see that over many regimes, different governments have tried to weaponise the UAPA to their own gain. We see that this has been used to further isolate marginalised groups and further debilitate trust towards certain communities. And increasingly, UAPA has been used when there is lack of concrete evidence to arrest on the basis of suspicion and deny bail forever. 

Who suffers most?

It has always been the case that people targeted under UAPA are from a marginalised position. EPW author Anushka Singh, in her 2018 book titled Sedition in Liberal Democracies, points out that:

In majority of the incidents of the use of the sedition law in Haryana, caste emerges as a variable along with class in some cases. Class features in this entire nexus in a more implicit manner. In fact it would be justified to say that caste has a class character (Teltumbde 2010). The landowning class constitutes majority of members from the dominant caste and majority of Dalits form the class of landless labourers. The invocation of sedition charges against Dalits or Dalit activists in matters involving disputes with the dominant local communities of Jats, Gujjars, and so forth are symptomatic of the fact that challenge to the existing hierarchy is interpreted locally as a seditious act. In cases that have not involved an overt conflict with the dominant castes, it is evident that the Dalit activists have been implicated for their struggle against the caste domination that defines the social base of the state in Haryana. In the working of the law, sedition is made out to be an offence against the entire system or status quo. It appears that the link between crime and punishment was not mediated by law, but caste. It is the person's caste or his/her take on the caste hierarchy that determines his/her 'crime'.  (Singh 2018:262)

The UAPA is a draconian act, however this intensifies and the act becomes more exploitative in the case of people from minorities and marginalised positions in India. The act becomes a strong weapon for the government especially when there is illimitable power in their hands, and the people are not given their right to a fair trial. No matter what the action of those accused maybe, the lack of proper trial, and unrestricted suspicion on the part of the government make the UAPA an agonising weapon in the hands of the government.  An EPW From the Editor’s Desk written post the death of Father Stan Swamy, reflects on this issue and brings this issue to light: 

The question that one has to raise is: Why does the government feel irked by social activism which, as the apex court seems to suggest, is a sound democratic expression? In recent years, social activism seems to have intensified because the socio-economic and cultural problems and human rights violations that have long been accumulated are waiting for their immediate redressal. But the state in general seems to be unable to minimise these problems. Arguably, they need more stringent laws in order to curb the voices rather than controlling the distress and despair that is looming large in the society. The laws have followed certain genealogy or kundali which, because of its common character, makes the political affiliation irrelevant, if not detrimental, to the cause of social activism. 

Jatinder Singh, in an article based on a UAPA case cites an anecdote from the accused, where the accused says that his trial in the UAPA and torture in jail time left him like a broken biscuit in a perfect wrapper. Singh writes: 

Darius Rejali (2009: 3) ha[s] called “clean torture” or “stealth torture,” in which the torturer knows how to beat a suspect senseless without leaving a mark. The authorelaborates extensively upon the fact that rather than abolishing the practice of custodial torture, democracies have evolved new methods and techniques to hide its existence. He argues that “there is a long history of torture in the main democracies,” which shows “clean tortures and democracy seem to go hand in hand” (Rejali 2009: 8). These techniques have been adopted in order to hide the existence of torture, in order to reduce the credibility of evidence of torture in the eyes of the law. (Singh 2015)

It is important to note the manifold manner in which torture takes place, and how no attention is given to the kind of torture, humiliation and absurdity faced by those accused. Such has even been seen in the recent case of Umar Khalid, where the rejection of his bail is based on the prosecution’s judicial stenography. In the article titled “Criminalising Dissent: Consequences of UAPA,” Anushka Singh reflects on this issue, and she writes: 

The case of Swapan Dasgupta bears testimony to the fact that police gives not even an iota of significance to the health of political prisoners. Dasgupta, charged under the UAPA in February 2010, for ­being the editor of the magazine People’s March [allegedly an organ of CPI(Maoist)] died in custody due to ill-treatment and neglect of his deteriorating health. It is a fact to note that the magazine for the publication of which he was charged was registered under the Registration of News­paper Act. Ranjit Murmu’s death in custody represents an even more gruesome state of affairs where a prisoner charged under the UAPA and other sections of IPC died in less than a month’s time after his conviction, where he suffered from no prior ailment. This case of custodial death in West Bengal in September 2011 was conveniently passed off as a case of death succumbing to ailment. (Singh 2012)

The COVID-19 pandemic made matters worse, as those accused under UAPA were jailed and their bail hearings were further postponed. To make matters worse, the conditions of jails and those of the prisoners in those jails also further deteriorated from what it was previously. In a letter  written to the Chief Justice of the Delhi High Court, right before the second wave of the pandemic in 2021, stated that prison capacity in a prison like Tihar, had its prisoner population go up to 20,000 which is double of its intended capacity. The letter mentions the deplorable conditions of health infrastructure in prisons in India. 

Conclusion

Thus, there is a burden of the past in the hegemonic tendencies that have seeped into the democratic construction of our law and society, as well as the way we let the ruling government decide the greater good for its citizens. It is also time we question the methods that are employed by the government to quash the fundamental freedoms of some of its citizens, that it, at times arbitrarily, chooses to call “political prisoners”. As Anushka Singh rightly points out, “The UAPA not only criminalises the fundamental right to association but also dilutes the distinction bet­ween political dissent and criminal acti­vity by criminalising dissident voices and acts.” 

Read More: 

•  Crime Redefined: The State, Dissent and Democracy  by G N Devy

•  Criminalising Dissent: Consequences of UAPA by Anushka Singh

•  The Unlawful Activities (Prevention) Amendment Act 2008: Repeating Past Mistakes by Ravi Nair

• How 'Unlawful' I Was! An Experiential Lesson on the UAPA by B. Anuradha 

• Stifling Freedom of Expression and Opinion by SAHRDC

• Over-Representation of Muslims: The Prisons of Maharashtra by Roshni Nair and Vijay Raghavan

• On the ‘Urban Maoists’ by Anand Teltumbde 

• Designating Individuals as Terrorists | Economic and Political Weekly

• Misuse of the Unlawful Activities (Prevention) Act by Susan Abraham