In recent years, the Modi government has repeatedly used the UAPA against rights activists, students and journalists critical of the state. Now, some are challenging the law’s constitutionality.
Lincy Franita, 30, rues not meeting her granduncle one last time in prison. But, perhaps, it was always beyond her control.
“Under the current dispensation, his death was on cards, but I wish I could see him,” laments Franita.
Grandniece of a prominent Indian tribal rights activist Father Stan Swamy — who passed away last week while in a pre-trial detention in the western Indian state of Maharashtra — Franita cannot come to terms as to how her 84-year-old uncle was deprived of even basic facilities in jail, which she believes led to his death.
“He (Swamy) was suffering from Parkinson’s disease. He couldn’t eat properly and wanted a sipping straw but the jail authorities denied him even that. He was also denied warm clothes,” she told TRT World.
Father Stan Swamy was serving detention under the stringent Unlawful Activities Prevention Act (UAPA), a law in India that allows the government to detain an individual for months without a trial. Swamy along with several other prominent academics and activists was accused of being linked to banned radical leftwing groups and instigating sectarian violence in Maharashtra in 2018 — a charge he and his companions denied.
The octogenarian was the oldest person in India accused of terrorism.
His death has again brought the draconian UAPA into the spotlight, with critics of the Indian government terming it as a tool to suppress any dissenting voices against the government. In recent years, Indian authorities have repeatedly used the law against rights activists, students and journalists critical of the state.
“I believe it was a cold-blooded, institutionalised murder,” said Father Cedric Prakash, Swamy’s friend and a fellow activist for more than 40 years.
“There is no evidence they (the government) could find about him for all these months while he was detained. But he was still in jail and wasn’t allowed bail. What kind of law allows that,” Prakash said, referring to UAPA.
Authorities as per the law can detain people up to six months without the need to produce any incriminating evidence or initiate a trial. Individuals have often spent decades jailed before being acquitted of all charges.
“Everybody knows that it was a framed case and evidence was planted against him. All the ten major political parties in the country asked for an investigation. But this law made him a terrorist,” added Prakash, who is also honored with Chevalier of the Legion of Honour — one of the highest French civilian awards — for his human rights activism in India.
An affidavit filed by the National Investigation Agency (NIA) today refuted the claims against the investigation in which Swamy was imprisoned. It stated the petition against the investigation was trying to question the agency’s credibility in fighting “towards the prevention of unlawful and terrorist activities in the country”.
UAPA was first enacted in 1967 by the Indian Parliament to ‘prevent unlawful associations’ in the country but it has been amended several times over the decades.
In 2019, India’s rightwing Bharatiya Janata Party (BJP) led by Prime Minister Narendra Modi inserted two new sections in the law that allowed government to categorise individuals as ‘terrorists’. Earlier, the law could only designate conglomerations as terrorist organisations.
The 2019 amendment by the government violates several international conventions ratified by India, including the International Covenant on Civil and Political Rights, 1967.
Human rights activists in the country say the law violates the Indian constitution as it does not mandate a fair hearing opportunity and gives arbitrary power to the government to target any opposition.
In a 2020 parliament debate, India’s Home Minister Amit Shah defended UAPA saying it was essential to keep law enforcement one step ahead of terrorists.
The fight for revocation
65-year-old Beyummah, a single mother, has been struggling to see her youngest son Zakariya, who was picked up by the Indian police at the age of 19, charging him under UAPA in connection with a bomb blast in 2008 in the South Indian city of Bengaluru.
Beyummah maintains her son had no role in the blast and has been framed because of his Muslim identity.
Because of the stringent provisions in the law, the ailing mother has spent only four days with Zakariya in twelve years, one of them to grieve the death of his newly wedded brother in 2016.
In March 2020, she finally decided to move to the Supreme Court of India to challenge the UAPA and the new amendment. The Public Interest Litigation (PIL) plea is requested to declare the act ‘unconstitutional and violative of fundamental rights’.
“I challenged UAPA to get my son back,” Beyummah told TRT World.
“There should not be another family destroyed by them (the government),” added Beyummah, who is clinically depressed because of the overlapping tragedies.
Nahas AH, president of the Solidarity Youth Movement, a Muslim advocacy group in the South Indian state of Kerala supporting Beyummah’s petition, says the law has sent hundreds of people to jail, many times without informing the grounds for arrest.
“Many groups have come forward to challenge the new amendment introduced in 2019 but we find the entire law unconstitutional and hence have asked for its complete revocation,” he said.
Legal experts who challenge the validity of the law say that the unilateral executive power in nature of designating the individual as a terrorist is a violation of basic human rights.
“UAPA infringes upon the rights of the reputation and the dignity of the individual that is an inseparable aspect of the rights secured under the (Indian) constitution. The word terrorist is defined in such a way that you can include anybody,” explains Jaimon Andrews, Beyummah’s advocate who is challenging the law in India’s Supreme Court.
“The definitions are vague in UAPA. For example, section 2.0 talks about ‘unlawful activities’ but without a framework, so even peaceful protests can be called unlawful activities. The ambiguous and vague definitions lead the executive to have unchecked power to use the law against anyone and anything,” adds Andrews.
Even though the case is pending in court, Andrews says it is not being heard because there is no urgency or resolve shown by the judiciary to consider it.
“Since the Supreme Court for the last one and a half years is working on video conference mode because of the pandemic, the number of cases listed are much fewer and tend to be in queue.”
The figures provided by the Indian government itself concede that only 2.2 percent of cases registered under the UAPA end in court conviction, yet it continues to liberally invoke the law.
According to government data, 1,948 persons were arrested under the law in 2019 compared to 897 in 2015, an increase of 72 percent.
Critics and legal experts opposing the law say that the law is being used as a “retributive measure” by the government to quell any dissent or criticism of the state.
“The voices of dissent are being silenced and their Right to Liberty and reputation is being compromised by implicating them with false and frivolous charges for the mere reason of speaking truth to the power,” says Malik Motasim Khan, General Secretary of Association of Protection of Civil Rights (APCR), which has also approached the Indian Supreme Court in 2019 to challenge the constitutional validity of the new UAPA amendments.
Khan believes the objective of the law seems to be to punish the critics of the government through a “rigorous process”.
“Otherwise, what legitimate aim does the state seek to achieve by declaring a person as a terrorist without even providing an efficacious remedy to challenge his notification?”
Kamini Jaiswal, a veteran lawyer practicing at the Indian Supreme Court told TRT World that the law is being specifically used by the BJP government to target minorities, particularly Muslims.
“It is state terrorism, as the law has been abused and used disproportionately against marginalised groups. To be honest I have no faith in the judiciary either as it has failed to act responsibly.”