Legal experts from the US, the UK and India have said India is abusing its anti-terrorism law to imprison human rights defenders and civil activists for years on false charges, without bail or even a trial.
Prime Minister Narendra Modi’s government was abusing this law, the Unlawful Activities (Prevention) Act (UAPA), even more aggressively than did the previous governments, and so it should be repealed, the experts said at a Congressional Briefing in Washington, DC, on Wednesday.
“The Government of India has been engaging in increasing and severe crackdowns on freedom of speech, routinely responding to peaceful critics with abuse of excessive penal actions,” John Sifton, the Washington, DC-based Asia Advocacy Director of Human Rights Watch, said. It was abusing the law “more aggressively to criminalize dissent and press freedom, undermine rights, freedom of expression and peaceful assembly.”
The UAPA defines terrorism in an “entirely vague and overbroad manner, encompassing a wide range of activities, including nonviolent… political protests,” Sifton, who holds a law degree from New York University, added. According to him, Modi’s government was abusing the UAPA also to target “members of the marginalized groups, including Dalits, tribal communities and religious minorities, in particular Muslims.”
The UAPA violated the International Covenant on Civil and Political Rights (ICCPR), to which India is a party, and which “outlines the fundamental due process and fair trial protections that are applicable at all times in all countries that have signed that treaty even during the states of emergency,” Sifton argued. UN Security Council Resolution 1456 mentions that a country’s counter-terrorism measures must comply with their international obligations under human rights law. “India has failed in those regards,” he added.
“Ban on organizations, making membership of groups a criminal offense, conducting warrant-less searches, seizures and arrests, compelling third parties to provide information without a court order, in camera hearings, secret witnesses and evidences, and most troublingly of all… detention without charge for up to 180 days [are] major procedural problems that create a… presumption of guilt,” Sifton added.
Waris Hussain, Adjunct Law Professor at Howard University, Washington, DC, said denial of bail and incarceration without trial constituted “the whole point of the UAPA,” and “the process was the punishment.” While the Indian judiciary had in the past passed “very brave” decisions protecting human rights, it was now “less independent to check the abuses of human rights that take place from the current administration.“
The criminal justice apparatus that includes the police, the prosecution and the investigatory agencies is complying with the problematic strategy of the government to silence dissent and diminish the right of free speech and other civil and political rights,” according to Dr. Hussain, who is also Senior Staff Attorney at the American Bar Association. The US Government and Congress, and the global community, needed to “apply countervailing pressure to tell [the judges] to step up to their reputational values.”
Dr. Mayur Suresh, Senior Lecturer in Law at SOAS University of London, pointed out that India’s police and prosecution “attempt to use speech acts to bring charges of membership of terrorist organizations” so as to ban those organizations, which is allowed under the UAPA. Police cite possession of literature as proof of terrorist activity to charge the accused under UAPA.
“Apart from the fact that the charges (under UAPA) are not aimed at obtaining a conviction, and are used to detain people for as long as possible, the mere charges filed for speech and membership cases serves to justify the further ban on the organizations,” Dr. Suresh said, citing the Students Islamic Movement of India (SIMI) whose banning in 2001 was followed by charges against individuals accused of being its members.
“These charges – not convictions, since there were none – were used to argue for a subsequent ban on SIMI… which in turn justified further membership charges” creating a “self-fulfilling circularity.” It was “abundantly clear” that the UAPA and its power to ban organisations posed a “fundamental threat to both the freedom of association and the freedom of speech and expression,” Suresh adds.
Joining the Briefing from India, veteran lawyer Indira Jaising, a former Additional Solicitor General of India, said the UAPA’s sweepingly defines terrorism as any action done “with the intent to threaten or is likely to threaten the unity, integrity, security, sovereignty of India.” But dozens had been charged under UAPA in two recent prominent cases — the sectarian violence in Delhi in February 2020 and the so-called Bhima Koregaon case from Maharashtra — when even the prosecution had not alleged any such threats.
She went on to say: “In the Delhi riots case, the young people were protesting against the Citizenship (Amendment) Act, which is highly discriminatory. There is no law that says you cannot protest against a law.” In the Bhima-Koregaon case, the “laughable” objections against one accused is that he “recited a poem by Bertolt Brecht” at a public meeting organized by a former Supreme Court judge. The poem called for rebellion against oppression, “which was a poetic way of saying we must all protest repression. It was taken to be an act of terrorism.”
Jaising said the draconian law denies pretrial bail “unless an accused person shows that there is reason to believe that he or she is not guilty. That is like asking to prove that I am not guilty whereas we know that the burden of proof is on the prosecution and that we are entitled to the presumption of innocence.”
Policy staffers from various Members of Congress as well as officials from the US Department of State attended the virtual Briefing. It was organized by Amnesty International USA, Hindus for Human Rights, Indian American Muslim Council, International Christian Concern, Jubilee Campaign, Dalit Solidarity Forum, New York State Council of Churches, Federation of Indian American Christian Organizations of North America, India Civil Watch International, Justice for All, Center for Pluralism, American Muslim Institution, International Society for Peace and Justice and Association of Indian Muslims of America.
Safoora Zargar, Jamia Millia Islamia student leader who was arrested last year for protesting against the CAA and was given bail months later only because she was in advanced pregnancy, recalled how the police came knocking at her door in the dead of the night.
“My in-laws and husband informed them that I was pregnant and needed rest” but the police took her away after rousing her from sleep, she said.
“I was not issued any notice for joining the investigation. I was not called for interrogation even once, simply arrested, without informing me that I was being arrested, without an arrest memo,” she said. “I was told at 10:30 pm in the night that I was being arrested, and my husband was made to sign an arrest memo that falsely showed my arrest at 5:30 pm. I was denied access to any lawyers.” Per Indian law, the police cannot arrest a woman after sunset and must present her before a magistrate at the earliest. But “all due process of law was bypassed. I was not even informed why I was being arrested and [of] the charges against me.”
After three days of police custody given by a magistrate, Zargar was charged under another case and her police custody was extended by two days. When she was to go to court, prison authorities “deliberately” misinformed her lawyers of the court’s location. “I cannot but stop myself from asking, if the very same police force that is supposed to enforce law and order has such blatant disregard for legal procedure and does not hesitate to bypass all due process of law at every single step, what does it say about the integrity of the police?” Eleven days after her arrest, she was charged under draconian UAPA to deny her bail.
Ritesh Dhar Dubey, Zargar’s attorney, said the Indian State had repeatedly refused “to recognize ‘speech and expression’ as a means of assertion of political sentience” and painted it as a criminal activity by “using tropes like national security, increasing terrorism, and more recently on ground of embarrassment to the current Indian Prime Minister.” He said while Safoora Zargar had been arrested for making a “seditious” speech, “till date the alleged speech has not been produced before any court.”