Greetings like “Comrade” or “Lal Salam” can land one in jail under the UAPA as per NIA’s chargesheet against Bittu Sonowal. When greetings start triggering anti-terror laws, it becomes important to revisit the definition of ‘anti-terror’. Every right guaranteed to citizen comes with a caveat taking away the absoluteness of such laws. For example, Article 19(1)(a) of the Indian Constitution guarantees the freedom of speech and expression and at the same time Article 19(2) allows for reasonable restrictions to be imposed on the same freedom to speech and expression. While in principle, exceptions might not be problematic, yet exceptions are usually used to quell voices of the opposition.
Extra-ordinary laws are not uncommon in the region. Starting from colonial times extra-ordinary laws have been part of Indian legal system. It is also important to reiterate here that, it is not only the current Government that has invoked UAPA, during the regime of UPA too, it has been invoked to suppress the voices of many. In last few years, there have been a series of arrests of the human rights activists in the Bhima Koregaon case to Meeran Haider and Safoora Zargar, student activists from Jamia Milia Islamia, in relation to anti-CAA protests. Adding to the list are the two student activists from Jawaharlal Nehru University associated with Pinjra Tod who have been slapped with UAPA. Gautam Navlakha who surrendered before the NIA headquarters in Delhi on 14 April 2020, wrote, “Under this double whammy (of the provisions under UAPA) jail becomes the norm, and bail an exception. In this Kafkaesque domain, process itself becomes punishment”. The arrest of Navlakha to Safoora Zargar including the previous arrests of human rights activists, none of whom have been granted bail, it appears all chaotic. But in this apparent chaos, there is an order. The order to suppress the voices of human rights activists or people in general who have voiced their opinion for the people otherwise excluded by the development agenda of the Government.
This order started off with discrediting of the term intellectual, as if being an intellectual or a thinking individual was criminal. Janaki Nair wrote in this context referring to the Gurmehar Kaur’s case, “One of the main casualties of this rising anti-intellectualism is the refusal of those attacking our institutions, individuals and practices to engage with the fullness of speech, its metaphoric nuances, its cadences and abstractions, even its confusions” (Indian Express, March 10, 2017). When the term “Urban-naxal” was used for the five activists arrested in the Bhima-Koregaon case, no one knew what it really meant. In fact in a recent RTI filed by India Today Group, the Left Wing Extremism Division in the Union Home Ministry did not have any information on who are “Urban Naxals” and where they operate inspite of the repeated use of the term by many in the Government (India Today, February 7, 2020). So where do we locate the term ‘Urban Naxal’ ? Vivek Agnihotri used the term “Urban-Naxal” hours before activists such as lawyer Sudha Bharadwaj, poet P. Varavara Rao and journalist Gautam Navlakha were arrested on the charge of being conspirators in the Bhima-Koregaon violence in 2018. Agnihotri, in his book titled “Urban Naxals” apparently “exposes” the nexus between an India-wide Maoist terror movement and their supporters in urban centres such as academia and media. It needs to be noted here that the role that intellectuals from the academia or media played in negotiating the space between the people excluded by the State and the State itself is not unknown; the only thing that is new here is the criminalisation of the role played by intellectuals. Nirmalangshu Mukherji, wrote in 2013, “Given the role of the media and the official political order, who will assist the people to resist? This urgent question reopens the old issue of responsibility of the intelligentsia interpreting and changing the role. In particular, intellectuals in academia and mainstream media — teachers, writers, journalists and other managers of ideas— enjoy, perhaps, the maximum benefits of the combined effects of democracy, freedom of expression, globalisation of knowledge and skewed economic development”(N. Mukherji, The Maoists in India, p. 76).
The genesis of UAPA
How is UAPA different from other extra-ordinary laws? If we dig the history of extra-ordinary laws we can go as back as colonial laws, but the laws that were similar in nature of UAPA is TADA and POTA which were also anti-terror laws. The Indian parliament till today has so far enacted three anti-terror laws, the Terrorist and disruptive Activities (Prevention) Act (TADA) in 1985, the Prevention of Terrorism Act (POTA) in 2002 and the Unlawful Activities Prevention Act (UAPA) in 2004. TADA lapsed in 1995 and POTA was repealed in 2004. The repeal of POTA was also followed by amendment of an existing law- the Unlawful Activities prevention Act, 1967 (UAPA). This amendment of 2004 made changes to the definition of “terrorist act”, “terrorist organisation” from the repealed POTA and included POTA provisions pertaining to punishment for terrorist activities and organisations. UAPA (2004) therefore, absorbs the provision of both TADA and POTA.
Changes since 2019
The UAPA too has been amended on multiple occasions. The most recent amendment came in 2019 (UAPA, 2019) which dealt with expanding the definition of “terrorist” to include individuals. The amendment does not specify the grounds of terming an individual as a terrorist. Prior to the Amendment, only organisations could have been designated that way and individuals were not covered. This has the effect of allowing the National Investigation Agency much greater scope to take control of cases that would otherwise fall under the domain of the police in individual states. Those arrested under UAPA can be in prison up to 180 days or more without a charge sheet being filed. The case filed against Akhil Gogoi affirms this point. Akhil Gogoi was initially arrested for his alleged involvement in the anti-Citizenship Amendment Act (CAA) protests in Assam last year but later on he was brought under the custody of NIA and charges were levelled against him under UAPA. A report of December 2019 said, “The NIA has formally taken up the investigation in the case and has booked Gogoi for waging a war against the Nation. The investigation in the case has been formally transferred to NIA, who will now look into the case.” (The Print, 15 December 2019).
In addition to above, the ‘sunset clause’ also differentiates UAPA from TADA and POTA. Inspite of wide misuse of TADA and POTA laws, it had a ‘sunset clause’ according to which these laws can be repealed if it is established that their existence is no longer required. Under a ‘sunset’ provision, a law will cease to be in operation after a fixed point of time unless further legislative action is taken to extend the law but the UAPA is a permanent statute.
The process shouldn’t become punishment
The recent unrest in Assam is associated with the arrest of Bittu Sonowal, a close aide of Akhil Gogoi. NIA, in its chargesheet against Sonowal, mentioned that he has referred to some of his friends as ‘Comrade’ and used words such as ‘Lal Salam’ among others. In the chargesheet filed on May 29, it was also mentioned that Sonowal uploaded a photo of Lenin with the words, ‘The Capitalists will sell us the rope with which we will hang them’ (Outlook, June 4, 2020).
#lalsalaamComrade was trending on twitter ranked as number one on 10th Jun 2020. This was the response from the activists to these categorisation of “terrorist” by such laws. The problem with these laws is that it has a scope of misuse. The above mentioned incident appears farcical. Another primary critique of anti-terror laws is that it bypasses constitutional safeguards that are provided in the constitution for a fair trail. The anti-terror laws should be implemented with utmost seriousness, such incidences make a mockery of theses laws. The blatant use of the UAPA should not make way for everyday violations of human rights, especially when the entire country is going through a period of crisis owing to the pandemic.