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"A Performance Audit and Some Thoughts on UAPA"

Justice Aftab Alam
7 Aug 2021 11:29 AM GMT
A Performance Audit and Some Thoughts on UAPA
Justice Aftab Alam, in the below produced transcript of his insightful speech, elucidates about the nebulous and sweeping definitions of UAPA that require next to nothing for alleging a prima facie case of 'unlawful' or even 'terrorist activity'.

Full Text of the Speech delivered by Justice Aftab Alam in the Webinar organized by CJAR on the topic "Democracy, Dissent & Draconian Laws : UAPA & Sedition"1. In today's session, dear participants, I propose to begin with a 'Performance Audit' of the UAPA before I share with you some broad thoughts on the Act. My audit, however, is both from the perspective of...

Full Text of the Speech delivered by Justice Aftab Alam in the Webinar organized by CJAR on the topic "Democracy, Dissent & Draconian Laws : UAPA & Sedition"

1. In today's session, dear participants, I propose to begin with a 'Performance Audit' of the UAPA before I share with you some broad thoughts on the Act. My audit, however, is both from the perspective of the Constitutional guaranty of liberty, and from the perspective of 'national security' and attempts to see how the Act, as it plays out in real life, fares in securing the latter without impinging upon the former.

2. One of the criticisms of the UAPA is that with its very low rate of conviction, but high rate of pendency, it is the 'process that becomes the punishment'.

3. The National Crime Records Bureau's last report is for the year 2019, and for that year it shows conviction rates under Crime Head 'UAPA' at the relatively high rate of 29.2%.

4. How is this Conviction rate arrived at? It is quite simple. In 2019 there were 2361 UAPA cases pending trial; 113 were disposed of with the following break up.

Conviction: 33

Acquittal:    64

Discharge: 16

5. Thus, as you can see, the rate of conviction at 29.2% is against the number of cases disposed of in a single year, (113/ 33)[1]. The Report also records pendency at the trial stage at 95%.

6. However, if examined against the total number of cases registered or total number of persons arrested then the rate of conviction comes down to the more realistic figure of just around 2%. And the pendency rate for UAPA cases increases to almost 98%[2].

7. These are Court disposal rates, which are quite well known. But perhaps not so well known is the 'Police Disposal rate' that refers to completion of investigation. For UAPA cases the Bureau's Report shows charge-sheeting rate in UAPA offences at 42.5% and pendency rate at 77.8% [3].

8. With such low rates of disposal and such high pendency both at the investigation and the trial stages it is no surprise that though the case might finally fail, the accused would come out of incarceration only after 8, 10, or in some cases even after 12 years. It is, therefore, not incorrect to say that in UAPA cases the process itself is the punishment.

9. At this point it may be worthwhile to ask a question from a purely national security angle? Are these police disposal rates commensurate with a dedicated legal framework that gives extraordinary powers to investigating agencies, and suspends several fundamental and statutory rights of accused persons? Additionally, the NIA act provides for a dedicated agency, to respond to acts and conspiracies that have a bearing on national security. Surely, these figures need more debate and accountability. On the face of it, however, it seems these special laws and dedicated agencies fail to carry out quick and focussed investigations in UAPA cases.

10. We must then ask, whether the results justify the high toll on Constitutional freedoms that this legal framework is based upon.

11. One may recall here the Mumbai terror attack case. The attack had taken place when UAPA was yet to undergo the amendments of the years 2008, 2012 and 2019 making it more and more stringent. The attack was truly an international terrorist attack within the meaning of the UN Resolutions that came to be later cited in the AMENDMENT ACT OF 2008 as justification for making a stringent Act still harsher.

12. However, the following was never considered: the attack had taken place between 26th and 29th November 2008 and the investigation, trial, appeals before the High Court and finally before the Supreme Court were all over by 29 August 2012. The judgments of the courts show that the investigation and the trial were held in full compliance with the Constitutional guarantees under articles 20, 21 and 22 that are grafted on the different provisions of the Cr.P.C. What did the amendments leading to procedural stringency add to fair trial or to quick disposal of UAPA cases.

13. The terror attack, apart from the devastation in terms of killing of innocent people[4] and massive destruction of properties also led to, in an indirect and intangible way, some very harmful consequences for the country's criminal justice system. In a knee jerk reaction, within a month of the attack, amendments [5] were made in the UAPA that have far reaching consequences. The amendments enlarged the meaning of "terrorist act" and added to the Act procedural sections 43 A to 43 F. Section 43 D (2) made it possible for the investigating agency to have the period for investigation extended till 180 days while the accused remained in detention; and sections 43 (D) (4) and (5) made it next to impossible for the accused to get bail.

14. A few days ago, I came across a fine article by Ms. Farha Naqvi describing how Act 35 of 2008 was passed in the Indian Parliament and how its most stringent provisions were portrayed as some wonderful gift to the nation. With regard to the extended period for investigation it was declared in Parliament - with pride- that it was intended to make the law worthy of a strong State, tougher than similar laws in any other country.

15. On the other hand, and around the same time, in the aftermath of the London terror attack of July 2007 when the British Parliament voted on a proposal to increase the time for pressing of charges from 14 days to 90 days, and only for "terror related" offences, it was defeated by a resounding majority. Under the proposed Bill, the 90 day period would have been considered 'an extended period of detention for 'terror' suspects in order to allow the police to obtain, preserve, analyze or examine evidence for use in criminal proceedings' and even as per the proposed amendments would have been possible in special cases and on the endorsement of a High Court judge. Yet the Bill was defeated in parliament as the proposed amendment was considered 'a travesty to human liberty'. They settled for a period of 28 days as a temporary measure to be annually reviewed and reverted back to 14 days in 2012.

16. Also, there is the 2011 Report by Lord Carloway that examines the law and practice of questioning suspects during criminal investigation in Scotland. But that would only be a dream for us in India, for in Scotland the period of detention before pressing of charges is reckoned in hours, with the outer limit, for very special cases, being 24 hours.

17. Lord Carloway's Report also considers similar practices in UK, Ireland and Western Europe and concludes that there is no need to increase the permissible hours of detention in the absence of charge, since 'our investigative practices do not rely on badgering the accused for information'.

18. This begs the question, how does one define a 'strong' State': one with rhetorical statements about 'national security', polemical debates and reduced accountability, or the other available models which are accountable, conform to certain standards of civil liberties and yet manage to perform.

19. The example from our own Parliament above suggests that we are willing to rob our people of their personal freedom far more than any other country, without anything to show for it and without any accountability. It is really quite distressing that what should have been a matter of acute embarrassment was being proclaimed with great pride. But that is the art of making dangerous laws.

20. As to provisions regarding the grant of bail, we see today the courts struggling to overcome the barriers introduced in the Act for granting bail even in cases that are seemingly unfounded and by no means qualify as a 'terrorist act" .

21. To my mind, Sections 43 (D) (4) and (5) appear to compromise/neutralise the fundamental principle of Criminal law regarding the innocence of the accused. Further, if the restrictions contained in those provisions are sought to be applied to the powers of the High Court or the Supreme Court (as it seems is being done) then, I feel, that the constitutional validity of those provisions would become doubtful. Justice Anjana Prakash, one of the panellists today, has very effectively developed and elaborated the point in some of her presentations.

22. Unfortunately, the matter did not end with the amendments of 2008 and the Act has undergone further amendments in 2012 and again in 2019. As a result of the amendments of 2019, now an individual person can also be labelled a "Terrorist" without any prior hearing.

23. UAPA is indeed not the only law that inverses the burden of proof at the stage of grant of bail. Several special laws like NDPS, POCSO and PMLA (before its provisions were read down by the SC) also have similar provisions and are liable to misuse. However, these Acts still require the existence of a prima facie and specific case against the accused. It is here that the UAPA stands out; its nebulous and sweeping definitions require next to nothing to allege a prima facie case of 'unlawful' or even 'terrorist activity' – something, perhaps, as trivial as having in one's possession a copy of War and Peace may be cited as evidence of supporting terrorism!

24. There is also the need to examine certain social, political and cultural influences that make it all too easy for such 'terrorist activity' to be associated with certain identities and not with others.

25. A useful insight into how UAPA is intended to operate is also provided by examining how violence is sought to be viewed and presented by the state. Is violence categorized as crime by an individual, or as crime by specific groups? Do State Reports address the structural causes of conflict and violence at all?

26. The N C R B's Report dealing with cases during the periods 2000 - 2004 and 2001 -2005 do not have any data on cases under POTA or UAPA. But the Report has a chapter (Chapter-3)[6] in which violent crimes are classified under different heads as under:

a. Violent crimes affecting life:

Murder (302 IPC), Attempt to Commit Murder (307 IPC), Culpable Homicide not amounting to Murder (304 IPC), Dowry Deaths (304-BIPC) and Kidnapping & Abduction (363 to369, 371 to 373 IPC);

b. Violent crimes affecting property:

Dacoity (395 to 398 IPC), Preparation &Assembly for Dacoity (399 to 402 IPC) and Robbery (392 to 394, 397 to 398 IPC);

c. Violent crimes affecting public safety:

Riots (143-145, 147-150, 151, 153, 153-A, 153-B, 157, 158, 160 IPC) and Arson (435, 436, 438 IPC)

d. Violent Crimes affecting Women:

Rape (376 IPC)

27. The offences are then further classified and one of the heads of sub-classification is Motives of Murder……… and this is both interesting and important. With regard to the cases for years 2001 – 2005 It reads as under:

Motives of Murder

"The prominent motives behind Murders were Personal Vendetta or Enmity and Property Dispute as in the past, which accounted for 11.8 percent and 8.6 percent respectively. The other significant causes were Love Intrigues (7.4%),……….. and Terrorists/ Extremists' atrocities (3.1%). Maharashtra has reported 60.8 percent (31 out of 51) Murders due to Class Conflict'. Bihar has accounted for 42.5 percent of Murders due to Casteism', 36.3 percent Murders due to Political Reasons' …….. and so on."

28. In this analysis of the crime of murder, there is a clear causal connection between the offence and the offender and more importantly there is clearly discernible a structure of class and/or caste and an awareness of social and class conflicts arising within those structures. I found this to be a very important acknowledgement of social/ political tensions and their causal link to large scale violence.

29. It is also pertinent to note that in the 2004 and 2005 Reports 'terrorist/ extremist' violence accounts for 3.3 and 3.1% respectively of the total violent crimes and is relegated to incidents in certain specified areas only, whereas caste related violence accounts for almost 27% - 33% of the crimes in certain states. Class and Communal conflicts similarly account for a large percentage of the total violence.

30. After 2004 – 2005 this sharp classification of offences starts getting blurred, until after 2014 the format itself is changed. It would seem from reading the more recent Reports that 'terrorist violence' which earlier accounted for a very small percentage of total violent crimes is brought centre-stage, while certain other structural conflicts are made completely invisible. It is a comment also on the political construction of violence, even in law.

31. Offences are now classified according to laws under which they are booked. Thus murders that arise from caste or class or communal conflicts and which were earlier thus classified, no longer disclose their genesis but are shown as individual offences listed under Section 302 IPC.

32. 'Terrorist offences' are re-classified as 'offences booked under the UAPA', and put in the chapter on 'offences against the state' together with IPC offences like sedition, 'imputation, assertions prejudicial to national integration', and also with offences under the 'Prevention of Damage to Public Property Act', etc. Such simple rearranging of 'violence' makes it at once more neutral, as well as 'more politicized'. It becomes purportedly neutral because it is only reflected as 'offences against the state' or 'offences under the UAPA', without any further labels. However, it becomes more political because the new grouping of acts suggests that there is a continuum from mere speech acts that impute assertions prejudicial to national integration, to sedition, to damage to public property, to terrorism. It is the same sliding scale of anti-national activities.

33. Let me try to make myself a little more clear by giving an illustration: Someone makes a perfectly peaceful speech in good conscience, based on reason and logic and citing Constitutional and legal provisions to criticize some law or some actions of the Government. Some people then take out a peaceful protest march; some others take out a march that is not so peaceful – some public properties are damaged; as it might happen, some unlawful or terrorist organization, or person also issues a statement in support of the cause; someone else throws a bomb killing a few people. Now by virtue of the overbroad definitions of UAPA, and by this method of grouping of certain offences, all incidents, from the throwing of the bomb to the making of a dissenting speech may be treated as part of a single conspiracy, or as related offences on a sliding scale of anti-national activities, and the speaker may well find herself accused of a terrorist act.

34. In other words, the grouping of violent 'terrorist acts' (which earlier accounted for a mere 3.3% of the total violent crimes) with non-violent speech acts, or petty violence creates a new imagination of 'terrorism' and of 'national security', which includes all manner of dissent and which brings the problem of 'terrorism' centre-stage. To my mind, this regrouping also has an adverse effect on national security in that by focusing more on internal dissent the cases posing real threat to national security and which accounted for approximately 3 % of the total violence in earlier reports fail to get the attention they warrant.

35. At the same time, other significant causes of serious violence that relate to caste, class, communalism for instance, are not classified as 'offences against the state', suggesting that they cause no threat to national integrity. Moreover, structural violence is largely made invisible and lost in 'neutral classifications' like 'offences under Section 302 IPC', or as individualized offences under the SC/ST (prevention of atrocities) Act. Thus a hate crime might simply reflect as an offence under Section 302.

36. Where has this most draconian law in the world's largest democracy taken us? The results are there for everyone to see. It stares us in the face in the death of Stan Swamy without a trial... And we must not also forget scores of Indians, who get acquitted and come out of jail after 8, 10 or even 12 years with a broken life and practically no future.

37. UAPA has failed us ion both counts; national security and Constitutional freedoms. I submit that it urgently calls for a thorough overhaul

38. Before concluding I would like to say that recently I came across a very good article by Mr. CU Singh, Senior Advocate in which he argued in favour of raising claims for compensation for accused, who get acquitted after years of incarceration. I think it is an idea that is worth following up.


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