MAKING DISSENT UNLAWFUL: UAPA

many means to make dissent unlawful

Unlawful Activities (Prevention) Amendment Act, 2008

and the National Investigation Agency Bill, 2008

Newsletter Jan – Apr 2009

The serial bomb blasts in Delhi in September' 2008 threw the United Progressive Alliance (UPA) government into a tizzy. As a response to this, the noises from within the government got louder and louder about the need to have more stringent anti-terror laws, without any attempt to understand the reasons why these attacks happened or what could have been done to prevent them from happening. The Mumbai attacks on November 2008, gave the central government the perfect alibi to implement its plans for tougher laws which makes sure that any form of dissent or resistance from the people against the State and its policies is forcibly curtailed.

On December 15, 2008 the Unlawful Activities (Prevention) Amendment Act, 2008 (UAPA) was presented in parliament and passed the next day without a murmur of dissent. On the same day the NationalInvestigation Agency Bill 2008 (NIA) was also moved and approved by Parliament. Both the UAPA and NIA became laws on December 30, 2008 after getting a nod from President Pratibha Patil.

Both these laws were perfectly timed because people all over the country were traumatised by what they witnessed non-stop on their W screens of the mayhem unfolding in Mumbai. After it was over, people took to streets with placards and slogans stating and demanding, "Enough is enough", "We will not pay our taxes", "Get tough on terror", amongst several others. People did not shy away from expressing their anger at the politicians of this country who could not keep them safe! And yes, people were brainwashed into believing that the only way to stay safe is to give up their democratic rights and freedoms! In this mahaul, UAPA and NIA seemed like the perfect antidotes to soothe frayed nerves. The UPA government which repealed the much misused and draconian Prevention of Terrorist Activities Act (POTA) just a few years ago used this opportunity to put in place amendments to the UAPA and in the process ensured that it was even more draconian than POTA and its equally repressive predecessor Terrorist and Disruptive Activities (Prevention) Act (TADA).

To discuss and further understand the implications of the amendments to the UAPA, we invited Harish Dhawan from Peoples Union for Democratic Rights (PUDR) to discuss the new provisions in the law. Harish started by outlining the political crisis in Punjab and Chandigarh areas in the 80s and later followed by the transistor bomb blasts in Delhi and in other places that created the context for theintroduction and acceptance of the concept of 'terrorism' (see Pl,lDR booklet "Are You a Terrorist?"). However those times were different and various strategies could be adopted to generate some debate but now the times have changed and situation has worsened.

UAPA first came up in 1967 in the context of naxalbari and the food crisis. ln 2004, major amendments were made to this Act, making it similar in some ways to TADA. But the nature of amendments that itsees in its 2008 avtaar makes the intention of the Government very clear - that everyone is a terrorist, unless proved otherwise. The UAPA broadens the definitions of terrorist activities to such an extent that any voice of dissent can be seen as a security threat to the country where the 'intention' itself can make a grievance as serious as an 'act'. Over the last several years we have seen how these laws, whether enacted by the Central or the State government, are misused to curb free speech, to keep minorities 'under check', to restrict and suspend democratic rights and civil liberties and, more recently, being used to arrest and deny bail to activists all over the countiy. If one does an in depth analysis about the use of these acts-: Armed Forces (Special Powers) Act (AFSPA), Maharashtra Control of Organized Crime Act (MCOCA), National Security Act (NSA), Chhattisgarh Special Public Security Act (CSPSA) etc. one will unearth the scaiy face of State repression.

The NIA Bill approved the setting up of a new central agency to tackle terror in the country. The said agency will be empowered to deal with terror related crimes across states without special permission from the States. From the word go, this Bill has >WILL BE MISUSED< written all over it. The autonomy of such an agency can be put to question when the Director General of this Agency will be appointed by the Central Government itself. The way this agency will work is that on receipt of any information regarding scheduled offence, officer-in-charge of police station will forward the report to the State Government, which in turn will forward it to the Central Government. On the basis of this report (and/or reports received by the Central Government from other sources), the Central Government will decide if the case is fit enough to be tried by the NlA. The Central Government can also take note of a case on its own and suo motu direct the NIA to investigate this case. Cases registered under UAPA will come under the NIA for investigation. So now, the Central Government has given itself more power (if that's possible) to decide what constitutes terror and to spearhead investigations in any part of the country!

Together, the UAPA and NIA form a deadly cocktail. These laws include several open windows that can be easily misused and conveniently interpreted by the investigating authorities. Just like all other such laws passed by previous governments, these too will be used to repress people's movements and to victimise citizens of the minority community.

Some of the provisions of these laws are as follows:

1. allows for the ‘terror suspect’ be held in custody for up to 180 days without charge and trial without appeal giving the investigating agencies enough time to concoct false evidence.

2. ensures that it is almost impossible for the detained person to obtain bail - no bail can be given without the prosecution being heard.

3. in the light of the fact that the burden of proof is on the 'accused' and that any property belonging to the accused can be attached and access to legal help is denied — how is one to prove that one is not a terrorist?

4. absolute denial of bail to foreign (non Indian) nationals has obviously been added to include Pakistani and Bangladeshi nationals.

5. all in the name of witness protection, the identity of the witness will be kept a secret ~ in such a scenario the rights of the accused are further curtailed.

6. the amended act has provisions that don't require the accused to be presented in front of a judge. This means that the investigating agencies will have enough time to use violence and coercive tactics to make sure that the accused 'confesses'.

7. special courts can be set up under the NIA to try terror offences in a quick manner, the worrisome part being that even retired judges can be appointed and this will surely lead to biased and compromised judgements.

8. the new law establishes intent to commit terrorist acts in various forms. How can intent be established? It cannot be, it can only be manufactured with a little help from the prosecuting agencies.

9. in addition to terrorist organisation, the words terrorist gang is also inserted. The inclusion of the word 'gang' ensures that becomes easy to prosecute individuals who do not formally belong to any organisation, merely on the ground that they maybe be supportive or sympathetic to a particular cause that can be perceived as terrorist activity – which according to the new law can be defined as terrorist unless proven otherwise!

The UAPA Act was presented by Home Minister Chidambaram saying "...at the same time ensuring against any possible misuse of such provisions." But the Act does not have any such provisions and there is a total absence of any checks against misuse, with the police investigating agencies being held accountable to no one. How can one ensure that preventive detention and denial of bail is not used like weapons by the State — something that Binayak Sen, Abhay Sahu and many others know only too well.

The challenge now is to figure out how we can strategise to create an opinion against these repressive laws, to protest them, to ensure that minorities are not further persecuted, and to send the message across that tougher laws are not the solution to fighting terror.

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Links:

PUDR: http://www.pudr.org

Unlawful Activities (Prevention) Amendment Act, 2008:

http://164.100.24.219/BillsTexts/LSBillTexts/asintroduced/Unlawful%20Activities%2076%20of%202008.pdf

National Investigation Agency Bill 2008:

http://164.100.24.219/BillsTexts/LSBillTexts/PassedLoksabha/75-C.pdf