The Expanding Confines Of The UAPA Jurisprudence

Nabeela Jamil

15 July 2021 3:29 AM GMT

  • The Expanding Confines Of The UAPA Jurisprudence

    Recently the Delhi High Court granted regular bail to Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita in relation to Delhi Violence of February 2020 under the Unlawful Activities Prevention Act (UAPA) after spending over one year in jail without trial. After two days of getting bail from the High Court, all three student leaders were released from the Tihar Jail on the 17th of...

    Recently the Delhi High Court granted regular bail to Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita in relation to Delhi Violence of February 2020 under the Unlawful Activities Prevention Act (UAPA) after spending over one year in jail without trial. After two days of getting bail from the High Court, all three student leaders were released from the Tihar Jail on the 17th of June. On the same day, Mohammed Ilyas (38) and Mohammed Irfan (33) were acquitted by an NIA court of all charges, including under the UAPA, citing lack of evidence but only after spending almost nine years behind bars. In March this year, a Chief Judicial Magistrate Court in Surat acquitted 122 persons after 20 years arrested for being members of Student's Islamic Movement of India (SIMI), an outfit that was banned in 2001 under the UAPA by the then Central Government. However, five persons died in the process before witnessing this acquittal. Recently, with Father Stan Swamy's death while pleading for pre-trail bail, death of Natasha Narwal's father to death of Siddique Kappan's mother while they bothlanguished in jail under UAPA—the discourse around UAPA gained some momentum.


    The UAPA, after being withdrawn due to opposition twice in the Parliament, was introduced through the sixteenth amendment of the Constitution by the fifth Lok Sabha in 1967. The then UAPA sought to empower the central government to ban organizations. Since the inception of the Act, the debate around the test of Article 13 and the ramifications of declaring activities as 'unlawful' started. The original UAPA of 1967, allowed the government to designate any organisation as unlawful and criminalized 'unlawful activities'.

    In 2004, the Prevention of Terrorism Act (POTA), an erstwhile law (with a conviction rate of 13 people out of 1031 charged) on the same lines as that of UAPA was held unconstitutional and thereby repealed. Soon thereafter, the UAPA was modified to include the terror offences earlier punishable under POTA. In other words, the UAPA is an advanced adaptation of the erstwhile POTA and Terrorist and Disruptive Activities (Prevention) Act (TADA) (with a conviction rate of just 1%).After the 2004 Amendment, the Act for the first time contained terror provisions and granted the State the power to declare and ban organizations as terrorist.

    The Act

    The UAPA provisions are dangerously vague. Take for example the definition of a Terrorist Act, Section 15 of the Act defines a Terrorist Act as "any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country." The ambiguity in the definition makes the actual commission of the act not required thereby giving the State the unbridled authority. Further, Section 2(o) of the UAPA which defines "unlawful activity" as any actionwhich causes or is intended to cause disaffection against India includingquestioning the territorial integrity of India. Thus, unhinged powers to search, seize and arrest without a warrant solely on the "personal knowledge" [Sections 7 and 43-A], no anticipatory bail[Section 43D(4)], extended detention periods [Section 43D(2)], presumption of guilt[Section 43-E], and bail being much harder [Section 43D(5)] are some of the features of the Act.

    Subsequent to the amendments brought in 2004, 2008, 2012 and 2019, the provisions of the Act were made more stringent. After the 2019 Amendment, the State can now name organizations and individuals as terrorists at the altar of conjectures. With plethora of already existing provisions in law, the need to designate individuals as "terrorist" left crucial questions open. Furthermore, the Amendment strengthened Centre's powers by strengthening NIA.

    Does the Law Work?

    Prisons Statistic of India show the disproportionate presence of Muslims, Dalits and Adivasis as under-trials i.e. a shocking 50.8% though these communities constitute only 39.4% of the total population of India. According to the National Crime Records Bureau, between 2014 and 2016, over 75% of cases under the UAPA ended in either acquittal or discharge. More so, according to the NCRB, as of 2019, over 95% of cases under the UAPA are pending before various courts in India. According to statement of the Minister of State for Home Affairs in the Parliament, out of total 5922 persons arrested under the UAPA between 2016 to 2019, only 132 have been convicted i.e. a mere 2.2%.

    The challenges presented by the UAPA can be condensed into two categories: (i) substantive legal issues: vague definitions challenging human rights, personal liberty and constitutional morality; and (ii) procedural issues: presumption of guilt and almost impossible bail provisions, arbitrary powers to an understaffed and desensitized Police force, unbridled powers to the State, questionable conviction rates with cumbersome trials.

    Recent Developments

    Any discussion on UAPA in the recent past has been incomplete without mentioningNIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 wherein the Supreme Court while interpreting Section 43D(5)in simpler words held that the courts have to rely solely on the words of the investigating agency and see whether the allegations fit the offences. Section 43D(5) states that an accused shall not be released on bail if the court, after going through the case diary and other information provided by the police, believes that there are reasonable grounds for believing that the accusation against the accused is prima facie true. The prolonged detentions, with accusations by the investigation agency under UAPA and through Watali's interpretation, turns out to be convictions without trial and bails. Notably, with a meagre conviction rate, most of these accusations turn out to be false but the goal is achieved if I may say so—punishment by the State. Consequently, the practice of "pleading guilty" in order to get out of jail as one has already served a substantial portion of the prescribed sentence for the alleged offences, is often murmured about.

    Earlier this year in February, the Supreme Court in Union of India V K A Najeebheld that Section 43D(5) "does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution."Before the Supreme Court, the crucial factor that was focused upon was the petitioner herein spending five and half years as an under trial prisoner. The Court referred Shaheen Welfare Association v. Union of India (1996) 2 SCC 616 to hold that 'gross delay' in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. Relying on Paramjit Singh v. State (NCT of Delhi) (1999) 9 SCC 252, Babba alias Shankar Raghuman Rohida v.State of Maharashtra (2005) 11 SCC 569 and Umarmia alias Mamumia v. State of Gujarat (2017) 2 SCC 731, the Court observed that even the stringent legislation with rigorous conditions on grant of bail (TADA and NDPS) enlarge the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. "The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians,"the Court observed. In Najeeb's case, a careful demarcation between Watalijudgment was madeemphasizing that the length of the period spent by the accused in custody and the unlikelihood of the trial being completed anytime soon have been the deciding factors for the grant of bail. The lack of settled principles in Najeeb's case creates a slippery slope for other UAPA cases. Moreover, Watali's judgment still holds the field.

    Investigating Agencies delaying filing of chargesheets and then supplementary chargesheets to prolong detentions is a known facet of the criminal justice system. In March this year, a two judge bench in Fakhrey Alam vs. State of Uttar Pradesh [CrA 319 OF 2021]granted default bail to one Fakhrey Alam observing that the State cannot take advantage by filing supplementary chargesheets qua the offences under the UAPA to extend the time period beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e. the period of 180 days. "That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances.", the Court observed while subsequently placing emphasis upon Bikramjit Singh vs. State of Punjab (default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right)

    In June, the Delhi High Court, vide detailed orders, granted Regular Bail to three accused qua UAPA offences in the North East Delhi violence cases—Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal. Delhi High Court's Bail Orders are of great significance in the sense it is the first time bail has been granted under UAPA cases related to the North East Delhi violence on merits. In Devangana's case, the court inter alia observed, "The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a 'terrorist act' or a 'conspiracy' or an 'act preparatory' to the commission of a terrorist act as understood under the UAPA." (Para 47)

    The highlights of these interpretations of the Delhi High Court was reiterating how UAPA is a special statute and should be dealt in exceptional cases considering criminal statutes must always be narrowly construed, "the intent and purport of the Parliament in enacting the terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the 'Defence of India', nothing more and nothing less,"the court noted. Moreover, "To bring its case within (Chapter IV of) the UAPA the State must therefore, without calling upon the court to draw inferences and conclusions, show that the accusations made against the appellant prima facie disclose the commission of a 'terrorist act' or a 'conspiracy' or an 'act preparatory' to the commission of a terrorist act."

    Analyzing the orders, Gautam Bhatia lucidly puts, "This reasoning is extremely important: a scrutiny of the Delhi Riots cases indicate that (i) the actual evidence against the accused is related to organising protests and chakka jam; (ii) violence occurred, but there is no evidence linking the accused to the violence; (iii) the gap in the middle is filled by the State alleging conspiracy and the "likelihood" of causing violence under the UAPA. It is this gap that the Court correctly identifies, and the notes that mere inferences are not sufficient to complete the chain of causation and establish a prima facie case under the UAPA, which could then be used to deny bail to the accused for years…As long as that gap exists, the prima facie case under the UAPA – and the prosecution's prima facie burden – remains undischarged, and normal principles of bail (not S. 43(D)(5) will apply."

    The Delhi Police was quick to challenge these bail orders in appeal before the Supreme Court. The Supreme Court directed the Delhi High Court's order to"not be treated as a precedent and may not be relied upon by any of the parties in any of the proceedings."

    Recently, a Special NIA Court whilst discharging Akhil Gogoi in a UAPA case analyzed and relied upon Asif Iqbal's order. More so, the Court adjudicating upon another matter related to blockade qua UAPA while discharging Akhil Gogoi observed, "Protests in a democracy are sometimes seen to take the form of blockades also, even causing inconvenience to citizens. However, it is doubtful whether such blockades for temporary periods, if unaccompanied by any incitement to violence, would constitute a terrorist act within the meaning of Section 15 of the UA (P) Act. That in my mind, is beyond the intention of the legislature. There can be other laws to address that."

    Are these liberally construed interpretations enough? Certainly No. Should Watali be overruled? Absolutely yes. In the meanwhile, these interpretations pave ways for the courts to approach stringent law like UAPA, until it meets the fate of similar earlier legislations like TADA and POTA.

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