The recent death of an 84-year-old Jesuit preacher in judicial custody has once again turned the international spotlight on India’s broken justice system. According to investigative agencies, Father Stan Swamy, a tribal rights activist suffering from Parkinson’s disease, was part of a dangerous Maoist conspiracy to overthrow the government.
In response to international criticism following his death, including from the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the U.S. State Department, India’s Ministry of External Affairs maintained that Father Swamy was treated “strictly in accordance with the law.”
The trouble is that the anti-terror law under which Father Swamy was charged – the Unlawful Activities (Prevention) Act, (UAPA) – is so draconian in its provisions as to be incompatible with the minimum protections guaranteed in a democracy.
Father Swamy was the oldest of the “Bhima Koregaon 16,” a group of left-wing activists, poets and academics, most of whom have been languishing in jail for close to three years in pre-trial detention.
It is no matter that the evidence against these accused is extraordinarily flimsy, consisting of unsigned letters found on their electronic devices and literature on the banned Communist Party of India (Maoist). The charge of “unlawful activity” under UAPA is vaguely defined and can cover any act which “disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India” or “causes or is intended to cause disaffection against India.”
Even that limited, circumstantial evidence has recently come under the scanner. A Washington Post report, citing Arsenal Consulting, a Massachusetts-based digital forensics firm, suggests that critical pieces of evidence, including a letter outlining a plan to assassinate Prime Minister Modi, were planted by a malware application on the computers of at least two of the activists.
The UAPA has become the favorite instrument of governments – both at the central and state levels – of quelling dissent. The suspects charged under the law are tried in special courts, and are denied bail if the courts have reasonable grounds to believe that the charges against them are “prima facie true.” There is no provision for anticipatory bail. A Supreme Court judgment in 2019 reinforced this stringent bail procedure by issuing a directive that courts considering bail should not examine the evidence too deeply but must go by the prosecution version based on “broad probabilities.”
A person can be detained under the UAPA for six months without a charge sheet even being filed against her. While the law provides for extension of detention in the event of discovery of new evidence connecting the accused to the crime, courts have routinely flouted this standard, and extended detention on the basis of “progress of investigation.” This has resulted in political dissidents being locked up indefinitely with little possibility of bail.
The Modi government has displayed few compunctions in unleashing the draconian law against its political opponents, including protesting students, agitating farmers, and troublesome journalists. As was the case with other anti-terror legislation, the UAPA has been disproportionately used against the most marginalized in Indian society: tribals, Dalits, and Muslims.
“The most flagrant abuse of the UAPA, and constant rejection of bail applications of those accused as a means of silencing opposing voices, can be seen in the Bhima Koregaon cases, including Father Swamy’s case, as well as the cases pertaining to protests against the Citizenship (Amendment) Act (CAA), where mere thought is elevated to a crime,” former Chief Justice of the Delhi High Court A.P. Shah wrote recently in The Hindu.
The UAPA has also lately been a critical tool in the crackdown on civil society in Kashmir. Outlook magazine reported that the number of cases under UAPA in Kashmir had shot up from 45 cases in 2014 to 255 cases in 2019.
“The UAPA is being used for anything and everything in Kashmir,” a Srinagar-based lawyer told the website Scroll. “Earlier, a stone-pelting incident would invite the charges of rioting, attempt to murder or other provisions, but now even those cases are being registered under UAPA,” he added.
The fact that the conviction rate under UAPA is abysmal is beside the point. The government informed Parliament earlier this year that only 2.2 percent of cases registered under the UAPA from 2016-2019 ended in court conviction. This is unsurprising because the UAPA is usually employed in those cases where the evidence seems too scanty for the normal procedure of law, and detentions are often driven more by political than legal necessity.
Opposition parties have joined in the outrage at the death of Father Stan Swamy. Congress President Sonia Gandhi was among a group of ten opposition leaders who wrote to the president calling for action against those responsible for foisting “false cases” against the priest. They went further and demanded the “release forthwith” of all those detained under “politically motivated cases, misusing draconian laws like the UAPA.”
The problem is that the opposition parties carry little credibility on the issue, as most of them have been complicit in the abuse of anti-terror laws. The Congress-led United Progressive Alliance (UPA) gave the UAPA its present shape by its amendment in 2008, passed in the aftermath of the Mumbai terror attacks. Having repealed the dreaded anti-terror law POTA (Prevention of Terrorism Act) as part of a campaign promise, the Manmohan Singh government reintroduced many of POTA’s stringent provisions in their altered version of UAPA.
The Congress-led government amended the UAPA again in 2012, criminalizing the right to form associations by expanding the definition of “person” to include “an association of persons or body of individuals, whether incorporated or not.” In fact, it was this provision that was used to build the case against Father Swamy.
The indiscriminate use of UAPA by the political establishment is also due to India’s weakened judiciary, which has either stepped aside or actively abetted the government in cases seen to involve national security. The recent judgment by the Delhi High Court granting bail to three student activists slapped with UAPA was so striking because it was a rare spark of principled jurisprudence amidst an almost consistent record of conformity.
A few months back, two middle-aged Muslims from Maharashtra, Mohammed Ilyas and Mohammed Irfan, were acquitted after spending nine years in jail, charged under the UAPA. They had been accused of being part of an Islamist conspiracy to kill politicians, police officers, and journalists, but were eventually let go for lack of evidence.
“If I was granted bail earlier, I would not have lost so many years of my life, despite there being no evidence against me,” Ilyas said after his release.