The date, September 13, marks three years of Umar Khalid’s incarceration under the Unlawful Activities [Prevention] Act (UAPA), a colonial-era draconian law. He was charged under the UAPA in a case allegedly linked to the February 2020 Delhi pogrom.
With the passing of three years of his jail, even India’s Supreme Court adjourned his bail for the sixth time in the case on the same day, shattering all the hopes that Khalid would be freed any time soon.
On June 9, a conference was held at the Press Club of India to express solidarity with Khalid’s continued incarceration of 1,000 days. Lawyers, activists, journalists, and academicians came together to express their dissent against the use of this law against the ruling regime. The ruling dispensation has been utilizing anti-terror laws and security agencies to curb dissent in a manner that has led academics to characterize India as undergoing significant ‘democratic backsliding’, and India has been demoted from a ‘free’ to a ‘partly-free’ country due to continuous human rights violations and throttling of journalists.
The ruling dispensation, known as the Hindu Nationalist Bharatiya Janata Party (BJP), has been in power since 2014. During this time, India has witnessed the imprisonment of more than 12,000 individuals under the UAPA as per the statistics of the government body, the National Crime Records Bureau (NCRB), of whom Khalid is one among the many.
The timeline within which so many individuals have been imprisoned is relatively short, yet the BJP’s support for the draconian law has deep historical roots. Hence, it is significant to understand how the BJP managed to hijack the anti-terror law to fulfil its agenda from a historical standpoint.
While the contemporary stance of the BJP regarding the utilization of the UAPA appears undeniably autocratic, a retrospective examination of their historical standpoint reveals that their present endorsement of this stringent legislation has changed as per their suitability of being in power or opposition.
The author, Aakar Patel, in his book, Our Hindu Rashtra, explains that the Bhartiya Jana Sangh (BJS), the precursor to the BJP, vehemently opposed the notion of ‘reasonable restrictions’ present in the first amendment of the Indian constitution, which impinged upon freedom of expression, and the concept of ‘preventive detention’ laws, a foundational element of the UAPA, during the 1950s. Their position on this law changed in 1967.
When the Indira Gandhi-led Congress government brought the UAP bill to Parliament in December 1967, the then-Indian Prime Minister, Atal Bihari Vajpayee from the BJS, opposed the enactment of the bill and criticized the committee.
He said, “The committee was handed a donkey with the hope of turning it into a horse. However, the result is that it has become a mule. Now, it’s acceptable for the home ministry to use this mule to carry weight, but if the ministry thinks it can sit on this mule and fight the battle for national integrity, then I humbly oppose it”.
Surprisingly, despite Vajpayee’s criticism, the then BJS’s manifesto still carries traces of hypocrisy regarding extraordinary laws. The BJS 1967 manifesto shows, while promising to repeal problematic laws that curtail individual civil liberties, also includes a line stating, “Care will be taken to ensure that fifth columnists and disruptive elements are not allowed to exploit fundamental rights”. The year officially marked the saffron party’s tacit support for this problematic law.
UAPA: Muslims are the primary target
The anatomy of the UAPA is strategically wielded by the BJP to foster a binary division, creating an ‘us’ versus ‘them’ narrative that categorizes individuals as ‘good Hindus’ and ‘bad Muslims.’ The case of the Student Islamic Movement of India (SIMI) provides a pertinent illustration of this binary construct. Mayur Suresh and Jawahar Raja, in their work, ‘Detrimental to the peace, integrity and secular fabric,’ elucidate that SIMI, originally a student organization, adhered to and followed Islamic principles. Dr Shahid Badar, the leader of SIMI, asserted in 2001 that then-Home Minister L.K. Advani of BJP bore responsibility for the demolition of the centuries-old Babri mosque, which ignited nationwide riots in 1992.
In the aftermath of the 2001 World Trade Center attack, the government seized upon the opportunity to associate SIMI with terrorist entities like Al Qaeda and figures such as Maulana Masood Azar, leading to the organization’s ban under the UAPA on September 27, 2001. The state narrative linked SIMI with destructive forces, painting it as an imminent threat akin to larger terrorist organizations. To this day, SIMI remains on the list of proscribed entities.
The state has portrayed SIMI as an antagonistic ‘other,’ ominously pervasive and posing a potential hazard to both the populace and the very institution that imposed its ban. Strikingly, an Islamic organization’s dissent against the state has culminated in its proscription under the UAPA.
However, this is not the case with Hindutva militant outfits such as Abhinav Bharat (AB), which possess a troublesome history of fomenting communal discord. The AB is allegedly involved in a series of seven bombings across five states, resulting in the tragic deaths of 119 individuals. One of its former members, Pragya Singh Thakur, was allegedly linked to these purported attacks, as well as the 2008 Malegaon Blast.
While the central agencies, including the National Investigative Agency (NIA), assumed control of the investigation and filed UAPA cases, most of the accused, including Thakur, were granted bail mysteriously after the BJP assumed power in 2014. Thakur, while canvassing for her 2019 general elections in a live press conference, admitted that she was responsible for demolishing the Babri mosque. She won the 2019 general elections as minister of the BJP.
These two case studies are interconnected rather than isolated, revealing a pattern where the saffron party penalizes certain organizations based on their identity and dissenting nature while it escorts free far-right organisations with majoritarian tendencies. Present, India’s Home Minister Amit Shah has outlined four criteria for designating an individual as a UAPA threat. However, the rules seem disparate for different organizations. A notable instance is that of Yati Narsinghanand, a Hindutva leader accused of delivering genocidal speeches against Muslims. Despite satisfying all four UAPA criteria, he has not been charged under the UAPA.
Interestingly, in 2019, India’s Prime Minister Narendra Modi dismissed the notion of “Hindu Terror” or its existence. However, his silence on the escalating hate crimes against minority groups in India showcases a paradoxical stance. This unfolding narrative underscores the selective utilization of UAPA by the central government to target specific communities, aligning with its propensity for fostering divisive distinctions.
Modi’s endorsement of draconian measures
The BJP’s stance on draconian laws remains untroubled until these laws impact the party directly, whether it is in opposition or power. In a video conference during the ‘Chintin Shivir’ with state Home Ministers at Surajkund on October 28, 2022, PM Modi commended the draconian UAPA as an effective tool to combat terrorism in India. He praised UAPA for providing the ‘impetus’ to the ‘system’ to simultaneously tackle the ‘terrorism’ propagated by Naxals who employ both arms and intellectual tactics to influence the youth.
This statement vividly underscores the broader government perspective that the state is justified in employing stringent laws to confront entities that challenge its ideological framework. Given its historical trajectory, such statements elucidate that draconian laws have become essential for the BJP’s survival within its existing political landscape. Hindu nationalists thrive on countering their ideological enemies with keywords like Naxals, Islamic fanatics, Maoists, Pakistanis, anti-nationals and so on. Hence, UAPA is used against those who fit into these keywords.
During his tenure as the Chief Minister of Gujarat, Modi exhibited contradictory positions regarding the National Counter Terrorism Centre (NCTC) – NCTC is a central body that works on investigation and intelligence inputs and primarily draws its powers from the UAPA – On December 30, 2012, he wrote a letter to the then Congress-led United Progressive Alliance (UPA) government expressing concerns that the implementation of the NCTC might jeopardize the safety and security of Indians.
In another letter, he criticized the proposal, contending that it violated the principles of federalism as the central government had not consulted state governments before drafting the proposal. He warned that it could essentially act as a ‘federal police’ overriding the will of state governments. Ironically, in current times, the BJP does not seem to voice the same concerns it had when Modi was Gujarat’s Chief Minister, particularly regarding the NIA, which conferred extensive powers to bypass federal principles, a stance Modi had staunchly upheld during his tenure in Gujarat.
However, as times have changed, his government is endorsing the establishment of additional NIA offices across India as part of an effort to counter terrorism ahead of the 2024 Indian general elections. NIA is under the direct auspices of the central government of India and has the power to curtail federal limits, which PM Modi was against long time back.
Human rights lawyer Rebecca John delivered a lecture during a seminar at the Delhi High Court in September 2018, focusing on the topic of “Understanding the Unlawful Activities [Prevention] Act 1967.” In her concluding remarks, she posed a crucial question: “Is it not time to ask whether the UAPA is running counter to the established canons of jurisprudence?” John’s question is pertinent as the escalating number of UAPA cases indicates that the judiciary has largely failed to rein in the extensive powers granted by the Parliament. The substantial number of individuals enduring prolonged periods of incarceration under the BJP’s rule highlights the judiciary’s inability to effectively scrutinize the framework of the UAPA amendment.
Legal expert Gautam Bhatia elaborates on the concept of “sealed cover jurisprudence” observed in UAPA cases. Under this practice, the government submits evidence to tribunal courts that remain undisclosed to the accused and their legal representatives. The government justifies sealing the evidence by deeming it too sensitive for public scrutiny. Subsequently, judgments are made by judges based on this sealed evidence. This approach denies the accused the right to comprehend the grounds for their detention under draconian law cases.
Italian jurist Giorgio Agamben references Sebastiano Satta in his work Remnants of Auschwitz: The Witness and the Archive. Agamben explains that the notion of punishment is not strictly adhered to in the judicial process; rather, the entire process of judgment itself serves as a form of punishment for the accused. This encompasses the trial, incarceration, and even execution. Agamben introduces the idea that in this context, the concept of acquittal could be viewed as a form of “judicial error,” as every individual is inherently “inwardly innocent.” Ironically, the truly innocent person is often the one enduring years of imprisonment without a definitive verdict.
A glaring example of this can be seen in the case of Delhi University professor G.N. Saibaba, a 52-year-old wheelchair-bound person suffering due to physical disability. Saibaba has been incarcerated in Nagpur Central Jail for the past eight years on alleged Maoist links under the UAPA. Despite being discharged by the Bombay High Court, he was re-arrested on the orders of the Supreme Court within 24 hours of his release. This cycle of imprisonment, shifting judgments, and the transition from one case to another culminate in a lifelong ordeal for individuals involved in UAPA cases. Agamben’s perspective resonates with Saibaba’s situation, where the denial of justice becomes a prevailing reality for the accused.
How long will the UAPA persist in the system?
How long will the UAPA continue to be a part of the legal landscape? Can we anticipate its eventual cessation? The persistence of this draconian law raises questions about its longevity within India’s criminal justice system. In the July 2022 issue of Caravan, Nileena MS reports the perspective of Sharib Ali, co-founder of the Innocence Network of Quill Foundation (INQF). According to Ali, the introduction of the UAPA and the NIA has marked a critical turning point that has contributed to the erosion of democratic values in India.
While laws like the Terrorist and Disruptive Activities Act (TADA) and the Prevention of Terrorism Act (POTA) were temporary measures that lapsed, the UAPA seems to have entrenched itself as a permanent fixture within India’s criminal justice framework. This is because both the NIA and UAPA combine elements from various past draconian laws, creating a comprehensive approach that is less likely to fade away easily. In essence, it appears that the UAPA is unlikely to see its conclusion unless the judiciary intervenes to safeguard democracy. Otherwise, the law could continue to be systematically utilized for personal and political gains, even at the expense of unjustly punishing the innocent. The Hindu nationalist government and anti-terror laws work in tandem, with dissenters being their primary targets; often, the victims are Muslims.
Jayant Pankaj is a freelance journalist. His primary research interests are data analysis, communalism, privacy, political economy, and so on.
