We are going through one of the most repressive times in post-Independent India where the fundamental rights of expression and the right to form any organization or association that can question government policies or fight for rights of the people have been criminalized. The government, armed with acts like Unlawful Activities Prevention Act (UAPA), is coming down heavily on all those standing up for the rights of economically and socially marginalized sections of people.
Not being satisfied with that, the government goes ahead and labels such political and social work as going against the territorial integrity of India or even causing disaffection against India and therefore unlawful.
If you are keen to pave the way for a society where debate, dissent and collective resistance to centralization of wealth and power form the core of democracy, try to see how the acts like UAPA are the biggest obstacles to a free India. It not only undermines existing hard won rights by toiling masses but criminalizes any expression or struggle for the rights of people.
Friends, now there need not be any trial that will prove you guilty of charges. Under the UAPA, it can take years to be acquitted. In 2015, the government’s own statistics show that 72.7 % charged under this law were acquitted. Imagine the number of people who spend time in jail for a crime they did not commit!
What is the crime of those arrested under the UAPA? If these are some of the questions on your mind, read on.
Q: Why should we be concerned about Unlawful Activities Prevention Act?
Imagine the dreadful scenario when the police can arrest you without any warrant as all other arrests require. Imagine the police taking 180 days to produce a charge sheet when criminal law otherwise requires 120 days. In India, this is now a reality. This is precisely what the security agencies can do to any of us due to powers afforded to it under UAPA. Should we be not concerned about such Acts?
In 2011, members of the Kabir Kala Manch (KKM), a cultural group formed in Pune after the Gujarat carnage of 2002, were arrested under the UAPA by the government of Maharashtra. You may wonder why a cultural group, which performs songs and plays opposing caste and communal atrocities, can become a threat to national security of the mighty Indian state. You will always be left wondering because while invoking UAPA the state does not have to justify its reasons. The members were charged of being associated to the banned Maoist party. No proof was presented before arresting Kabir Kala Manch members. What was their crime? They had led a cultural protest against communal pogroms carried by the RSS and spread awareness against caste atrocities through their performances. The dangerously vague provisions of the Act can be used or misused to target any differing voice.
Imagine if you say no to illegal corporate land grab, or support the right of workers to form a trade union or stand up for self determination of the people of Kashmir, your “intention” can be under scrutiny and be said to be going against the interest of India as this Act is interpreted by the powers that be. The right to express dissent against any actions or policies of an elected government has become criminalized; and one of the most effective weapons the state uses for such criminalization is the UAPA.
Let us understand what the UAPA is, where it comes from and why it has become so handy to those in power.
Q. What is UAPA?
The Unlawful Activities Prevention Act (UAPA) is an act by which central or state government has unlimited powers to ban an organization, arrest an individual and term any activity terrorist if it does not fit their agenda. The UAPA came into existence in 1967. In its original form it gave central government unlimited powers to ban any organization, which it believed was advocating secession.
If this was not bad enough, the law was amended in 2004, 2008 and 2012 to such an extent that for the vast majority of the people, the act acquired immense potential to turn India into a police state. For example, according to these amendments whose wordings remain completely vague, any activity which can even include writing, singing and dancing and that are interpreted by the government as “intentions” to disrupt territorial integrity of India or even more ironically, causing disaffection against India, can be considered unlawful. So for example, if you write in a public forum that demands of the Kashmiris for independence should be discussed, you may be arrested under UAPA.
And what does one mean by “causing disaffection against India”? If you say that current policies of the government like forcible and illegal acquisition of land for the benefit of big industrialists are wrong or you stand against caste atrocities, and write a song about it or perform a play about it, you can be arrested under UAPA just like the members of KKM were! Thus you do not have to actually commit any crime to be called a criminal under the UAPA.
We don’t have to second-guess the state here as they are fairly explicit. Because the Maoist party is banned, if your beliefs coincide with some of the beliefs of the Maoist party, you can be thrown in jail under UAPA. That is how Prof. Saibaba of the Delhi University, who is 90% disabled, is currently serving imprisonment after being convicted by a Maharashtra court under the UAP. You don’t even have to be a member of the banned organization. In a healthy democratic society, banning organizations without due process of law itself would be unacceptable. Arresting a person who was at some point member of a banned organization would be considered even more ridiculous and unlawful and arresting a person who may not even be a member of a banned organization but hold same set of beliefs would sound like law of a totalitarian state. But that is exactly what UAPA is and does.
The UAPA has neither any provisions for mandatory periodic review as earlier national security laws like POTA and TADA did, nor is it time bound. Moreover, the UAPA has become permanent legislation. Therefore, we need to come together for the repeal of this law!
Q. How does UAPA go beyond existing criminal laws?
The UAPA allows the police to search, seize and arrest without a warrant. It allows detention of the “accused” without filing of a charge-sheet for up to 180 days and police custody can be up to 30 days.
The underlying principle under all criminal law is that the accused is held to be innocent unless proven otherwise in a trial. The UAPA has turned this underlying principle on its head. The act primarily works on the presumption of guilt merely based on the evidence allegedly seized (which could include magazines of an organization from the time when the organization was not even banned!). It invalidates what till today defines evidence to be; the standard of inquiry thus falls.
While bail is a right, the UAPA makes it much more difficult to obtain bail. Unlike criminal law, anticipatory bail does not apply here! Thus, no legal mechanisms exist which can safeguard citizens against this rampant misuse of power by state and security apparatus.
UAPA is not only a license to arbitrarily arrest but also arbitrarily hold a person in confinement for long periods. Sections of the Act state that unlawful activities are punishable up to seven years imprisonment; conspiracy is punishable by not less than five years up to life; being a member of a terrorist gang or organization is punishable for life; offences relating to membership of a terrorist organization are punishable by imprisonment not exceeding 10 years; and any offence relating to support given to terrorist organization is punishable by imprisonment not exceeding ten years.
All this for a crime that remains undefined. In fact, you do not have to commit any crime to be arrested under UAPA! You can be arrested for your beliefs!
Q. Do we have the freedom to think independently and hold different ideologies ?
In the wake of the liberalization of the economy, the central and state governments have become increasingly intolerant to any opposition of its economic policies. In the last four years we have also seen the BJP/RSS government combining the neo-liberal paradigm with its Hindutva agenda and any opposition to its attempt to turn India into a Hindu Rashtra is termed anti-national. Thus if your ideology is against the ideology of the RSS or that of the World Bank, you are called Maoist and can be arrested under UAPA.
However, in May 2015, the Kerala High Court delivered a landmark judgment that just being a “Maoist” is no crime, and that the police cannot arrest a person just on that account. This came in the wake of several people being arrested by the police and paramilitary forces without arrest-warrants for believing in left ideologies. The court also stated that a balance has to be maintained between the needs of the law enforcement agencies and the protection of the citizen from oppression and injustice of the state.
Earlier in February 2011, the Supreme Court had ruled that mere membership of a banned organization does not make a person criminal unless he or she resorts or incites people to violence. The ruling assumed significance in the wake of life imprisonment given to the civil liberties activist Binayak Sen by a sessions court in Chhattisgarh. The Supreme Court passed the order while upholding the appeal of Arup Bhuyan, an alleged activist of the banned ULFA challenging his conviction.
Today, resistance to any coercive or exploitative move or policy made by the present regime to push its economic and communal policies by any organization or individual is deemed to be terrorist. When there is no answer to the organized demands of those struggling for their rights or to any writing or view expressed as a critique of the present regime, it has become expedient to term it as Maoist, Naxalite or Islamic terrorist.
Q. What are the fundamental rights under the constitution that the UAPA violates?
The UAPA violates two most important fundamental rights guaranteed under the Constitution of India: Articles 19 and 20. It violates the Right to freedom and speech and expression to form associations and unions. It also violates the Right to Life and Liberty.
The rights of workers to organize and to bargain for their rights with employers or managements, is being criminalized by invoking the draconian UAPA. On the other hand, Hindutva based student organizations like ABVP are getting a free reign in campuses while the rights of Muslim students to form organizations like SIMI have been vanquished.
Registered and old unions like Mazdoor Sangathan Samiti in Jharkhand, Bombay Electricity Contract workers Union and Mine workers in Sukinda district in Odisha have all been victims of UAPA induced injustices.
In Jharkhand scores of dalits and adivasis have been arrested under the UAPA and kept in prisons for long periods as undertrials. In Madhya Pradesh, the scenario is repeated with Muslims.
Q: Who can be arrested?
Anyone! But when the state is governed by an anti-people ideology and blatant bias for capitalists, some are more likely to be arrested then others.
Those who speak up when injustice is being meted out to them or others around them or are not in good books of the authorities for making demands on behalf of a community or exploited sections are vulnerable to such a repressive law. If you ask what the State is doing in Kashmir or why innocent people are shot dead in encounters or while demonstrating in a peaceful manner, your act of questioning is criminalized!
Looking at the hundreds of people arrested under the Act, we see that workers, students , political activists, lawyers, journalists and artists have all been arrested under this Act. A common factor among all the people arrested under UAPA is their opposition to injustice perpetrated on the most marginalized and most exploited sections of society: minorities, workers, adivasis and dalits.
Most of those who are arrested belong to the marginalized communities – Adivasis, Dalits, Minorities, Denotified communities. In 2013, 53% of population in prison was comprised of Dalits, Muslims and Adivasis who are actually 39% of the country’s population. Everyone is certainly not equal before the law.
Industrialists, ministers, VHP and Bajrang Dal members who commit atrocities against religious and caste minorities, police and security personnel who can shoot at unarmed civilians have and will always remain protected from acts like UAPA. Those lynching Muslims in cases of cow vigilantism have never been arrested under UAPA.
Q: Who has been arrested?
Anti-working class bias of this government means that workers who assert their rights are likely to face intense state repression. When workers try to unionize, they don’t do anything illegal and so to stop their activities government resorts to draconian laws like the UAPA.
Mazdoor Sangathan Samiti is a registered trade union in Jharkhand which has worked with the informal tribal workers since 1989. It has over 22,000 registered members. In November 2017 MSS organized a cultural program to celebrate 100 years of Russian Revolution. The BJP state government banned MSS since celebrating Russian Revolution is a criminal offence! This ban did not follow any legal procedure and MSS was not even allowed to defend charges against it. In February 2018, leaders of the MSS, Bachcha Singh and Deepak Kumar were arrested under UAPA with the all too familiar charge of them being associated with the Maoist Party.
The Bombay Electricity contract workers union is one of the most well organized unions in Bombay. Ever since its establishment in 2005, it has fought for rights of the contract workers to work with dignity and have won many struggles. In January 2018, 5 of its most prominent leaders were arrested for their supposed involvement in Bhima Koregaon violence under UAPA and still remain in jail. With most of the leadership in prison, the union has suffered a severe setback and Adani who now owns the company has a free run in exploiting workers further.
On June 12, 2017, three mine workers were arrested in Sukinda district in Odisha to intimidate and prevent the mine workers from forming a trade union and challenging human rights violations resulting from mass tribal displacement in the region, they were arrested under the UAPA on false and fabricated charges of conspiring to wage a war against the Indian state and inciting violence.
If you are a lawyer trying to get justice in such cases or a reporter trying to write what you see, you are not safe! Yes, UAPA also interferes with journalists and lawyers who uphold honesty and integrity of their profession and refuse to become lackeys of the rich and the powerful.
Santosh Yadav and Somaru Nag, two fearless journalists working in Bastar were jailed under UAPA in 2015 and then released after spending a year in jail as charge of them being a Maoist supporters turned out to be completely fabricated by the police. In fact in 2015 and 2016, Chhattisgarh police threw four journalists behind bar with the help of UAPA.
Advocate Murugan who works with political prisoners in Tamil Nadu was himself arrested and the charge was that he is a Maoist!
Surendra Gadling, a Dalit activist and human rights Lawyer who has worked tirelessly for release of political prisoners was arrested in June 6th for his supposed involvement in Elgar Parishad, which was a public meeting. Sudha Bharadwaj and Arun Ferreira, lawyers who are office bearers of the progressive lawyers organization Indian Association of People’s Lawyers (Surendra Gadling is also an office bearer) have also been arrested under UAPA and are currently in jail.
Vachinathan, who as a lawyer supported people’s movement in Tutikuddi against the Sterlite plant, was arrested. Charge against him was that he incited the protests. He is still in jail.
Scores of activists are arrested and kept in jail for extended periods under this Act. These activists come from different strata of society and their only “crime” is to fight for the oppressed and question government policies.
Shoma Sen, Mahesh Raut are activists who have fought for the rights of women and adivasis in Gadchiroli district in Maharashtra along with Sudhir Dhawale, a well known dalit activist and editor of an independent magazine, Rona Wilson who has fought for rights of political prisoners and lawyer Surendra Gadling, were arrested under UAPA with ludicrous accusation that they were fomenting hatred among communities by being in the organizing team of a Dalit Conclave called Elgar Parishad which was held in December 2017 in Pune, Maharashtra. In the same case, activist Vernon Gonzalves and poet Varavara Rao has also been arrested and are currently in jail. Charges under UAPA have also been brought against human rights activists and authors Gautam Navlakha, Anand Teltumbde and Stan Swamy and they are currently involved in a court battle challenging these charges against them.
Minorities, dalits, adivasis:
The list can go on and on. In 2015 over 100 arrests were made in Kerala alone under UAPA. 92 of those arrested were Muslims and the remaining were accused of belonging to the Maoist party! The arrests were so arbitrary that the police itself formed a special committee to investigate these arrests and found a number of them to be fabricated!
In Madhya Pradesh, UAPA is a demon which has terrorized the Muslim community. After the act was used to ban the Student Islamic Movement of India (SIMI) in 2001 (a ban which continues to be revoked even though not a single case against any SIMI member has been proven), Madhya Pradesh police uses the ban on SIMI to arrest scores of ordinary Muslims who are accused of being members of SIMI. As the Police does not need to give any explanation while using the UAPA, the ghastly scenario has emerged in Madhya Pradesh where prisons are filled with Muslim under trials, some of whom have also been `encountered’. Recently, more than 200 members of the Muslim community were charged under UAPA after a communal clash in Khaira village in Bahraich district of Uttar Pradesh reportedly instigated by Hindutva organizations.
Thousands of adivasis undertrials are in jail or facing charges under UAPA in the states of Chattisgarh, Jharkhand, Odisha, Maharashtra and West Bengal. The total number is around 8000 as per the National Crime Records Bureau of the government. Most of these adivasi men and women are from areas where struggles against forcible land acquisition or corporate loot of minerals and forest wealth is going on.
Q: These people who are being arrested under UAPA are basically activists who were working with people, supporting and participating in people’s struggles and movements. But who are these people who are struggling and why and for what are they struggling?
Over the last about three decades the situation of the poor sections of society has gotten very difficult. Not that it was easy earlier. But since the 1990s, the situation changed for the worse. While earlier there was some semblance of governments being bothered about the mood and the situation of people, after the 1990s, the entire scenario changed in most countries of the world, including India. The fact that the rich were becoming richer and the poor becoming poorer did not deter governments from following the same policies. The laboring poor, adivasis, dalits were rapidly dispossessed of whatever little they owned or had control over – land, forests, decent jobs, access to health care and education, nutrition, and all else. The share of the total national income that went to these sections of people became smaller and smaller. For example, according to an Oxfam study in the year 2017, 73% of the wealth created in India went to the top 1%, while the poorest 50% of the people got only 1%. Globally, 82% of the wealth in the year 2017 was cornered by the top 1%, while for the poorest 50%, there was no increase at all. For very large sections of people life became more and more difficult, with very long working hours, precarious employment, low wages, bad and unsafe working conditions, high morbidity and mortality, continuing violence against the most marginalized, while wealth and development continued unabated and was more and more concentrated in a very small section of the extremely wealthy.
In order to merely assert ones humanity and right to dignity and life, sections like workers, peasants, dalits, adivasis, women, forest dwellers, fisher-folk and many more sections had to come out and protest, to struggle, to organize. That became the only way in which they could live and not perish.
This struggle for survival and dignity, this striving for a better future for themselves and their loved ones has been termed by those very wealthy people and their spokespeople as subversive, as anti-national, as terrorism, as left-wing extremism. This is a weapon that seeks to de-legitimize the very real and legitimate struggles of the people, to malign and stigmatize people who do not agree with this obscene inequality.
Q: What has been the role of the media?
The time the trial under the UAPA takes in courts is both slow and uphill. Sections of the corporate media carry on a media trail where the presumption of guilt that the UAPA is based on is upheld in an irresponsible and biased manner. Thus, the opportunities of a free and fair trial are further jeopardized. The accused is pronounced guilty even before the trial is over.
In essence, such biased media reporting upholds the economic policies and the heavy repression of dissenting voices. The search for investigative and objective analysis has become a far cry. Facts are overridden by the propaganda of the repressive state and its media houses.
While the media sensationalizes arrests, it maintains a stony silence on the hundreds of meetings and marches and demonstrations held in Maharashtra, Delhi, Punjab, Madhya Pradesh, Chhattisgarh, Jharkhand, Odisha, West Bengal, Tamil Nadu, etc. by the public and democratic forces that oppose and question the misuse of the Act.
Q: What can be done?
The more we keep quiet, the closer it will come and swallow us, more and more of us. That is why we need to oppose UAPA in a more organized, collective and sustained manner.
Sustained because, earlier there were two very draconian Acts – POTA and TADA. Immense efforts and energies were expended by committed human rights organizations and other organizations to oppose those legislations. We succeeded in getting them repealed, only to have the most draconian and anti-democratic clauses being added to this UAPA. So after so much effort and organizing, we are back with the same provisions that take away almost all our political rights.
This is in no way an exhaustive analysis of the UAPA. This is merely a beginning to understand a very dangerous and repressive law. We need to understand it more deeply; but it is also important to act in ways that challenges this draconian Act and compels its repeal so that we are one step towards greater freedom and democracy!