The Delhi Police on September 16 filed its chargesheet in the investigation on the communal violence in Delhi that left at least 53 dead. The Special Cell of the Delhi Police probing into the "larger conspiracy" hatched by "masterminds" who wanted to "tarnish" the country's reputation internationally have relied on charges under the provisions of the Unlawful Activities (Prevention) Act (UAPA), 1967, charges of rioting, conspiracy, murder and sedition under the Indian Penal Code, 1860, the Arms Act, 1959 and Prevention of Damage to Public Property Act, 1984.
On September 13, former Jawaharlal Nehru University (JNU) student leader Umar Khalid was arrested in connection with this case. However, he is not one of the 15 accused in this chargesheet. The investigation against him is ongoing and his alleged role in the riots will be presented by the police in a supplementary chargesheet.
What is the UAPA?
The Unlawful Activities (Prevention) Act, (UAPA), 1967 was an act introduced to provide for an effective way to prevent "certain unlawful activities of individuals and associations", and to deal with "terrorist activities".
An individual who is a member of a terror outfit or unlawful organisation; someone who funds or commissions terror acts or unlawful activities can be penalised under the UAPA.
According to the act, 'unlawful' activity is an act which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; any attempt or action that supports or intends to support cession or secession of any part of India. A terror act is any violent act the threatens the security of India or strikes terror in the people living in India or abroad.
Lastly, under UAPA, the Centre can declare certain individuals or organisations as terrorists (in case of individuals), "unlawful associations", "terrorist gangs" or "terrorist organisations". Once such a declaration has been made, being a member of such an organisation is also a criminal offence.
Over the years, the UAPA was strengthened by way of several amendments allowing it to replace the more terror-specific laws like Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA).
Since 2004, the UAPA has become more strict when it comes to the rights of accused and has also been amended to include more terror-related offences. Cases under UAPA are tried in special courts.
If convicted, most of the provisions of UAPA carry a life sentence.
Why is it considered to be draconian?
The ambit of UAPA is vast and vague. For example, it is an unlawful act to even question the territorial integrity of India. Causing 'disaffection against India' is also a crime. But, what is disaffection? That has not been defined. Mere possession of literature and pamphlets of a banned organisation or those the government thinks is secessionist will brand you as a member and attract punitive action.
In July 2019, the Centre introduced an amendment to the UAPA giving it absolute power to designate an individual as a terrorist. The process to do this would be similar to one followed for an organisation. Masood Azhar, who is alleged to have masterminded the 2019 Pulwama Attack; Hafiz Saeed, the mastermind of the 26/11 Mumbai attacks; underworld don Dawood Ibrahim; and Zakir-ur-Rehman Lakhvi, commander of the Lashkar-e-Taiba (LeT) became the first individuals to be designated as terrorists under the act.
The designation of an individual or an organisation is subject to review by a committee which is constituted by the Centre. An individual or an organisation has no right to be heard before being designated as a terrorist.
The 2019 amendment also introduced the term "has reason to believe" allowing the Centre to arrest someone based on mere suspicion.
In 2011, the Supreme Court in the Arup Bhuyan matter clarified that "mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence."
However, since then, many activists have been picked up for being mere members of suspect organisations. The chargesheet filed in the Delhi riots case prominently feature those who opposed the Citizenship Amendment Act (CAA). Activists in the Bhima Koregaon case, suspected of being "Urban Naxals" have also been picked up by the Maharashtra police under various provisions of the UAPA.
Is it more stringent than other laws?
Yes, the UAPA is more stringent than other laws. Under UAPA, an accused can be jailed for extended periods of time without a chance for bail. No bail will be granted if the case appears to be prima facie true, and there is no provision for pre-bail in UAPA.
According to Section 43D(5), a court cannot grant bail to an accused in a terror-related offence, if the prima facie case appears to be true from the case diary and other basic evidence. The 2019 Zafoor Ahmed Shah Watali verdict by the Supreme Court stops a court from granting bail to a UAPA accused even if the evidence presented during bail is blatantly unreasonable. The judgment authored by Justice AM Khanwilkar said that a court is not supposed to weigh the evidence but only look at whether the material provided by the probe agencies was enough to make a prima facie case.
As opposed to the Code of Criminal Procedure (CrPC), 1974 which gives an investigating agency 60 days (for offences with a prison sentence less than 10 years) and 90 days (for offences attracting more than 10 years jail term), under UAPA, one gets 90 days time to complete the probe, extendable up to 180 days provided the public prosecutor can justify this delay.
Criticism against UAPA
During the 2020 Monsoon Session of the Parliament, Minister of State (Home) G. Kishan Reddy told Rajya Sabha in a written reply that 922 (2016), 901 (2017) and 1,182 (2018) cases were registered under the UAPA leading to the arrests of 3,974 people. The MHA further revealed that in three years, chargesheets in only 821 or 27 % of the cases have been filed.
Data from the National Crime Records Bureau on the conviction rate in UAPA: 27.3% (2014 against 976 cases), 14.5% (2015 against 897 cases) and 33.3% (2016), while data for the years 2017 and 2018 is not available, gives teeth to advocacy rights groups who point out that this law is being misused.