What is the UAPA and Why Are Arrests Under It So Problematic?

What is the UAPA and is it being used to target academics, activists and lawyers? We explain the draconian law.

(This story was originally published in 2018 and was later updated to include more recent developments like the Watali judgment and Umar Khalid’s arrest. It is being republished on 15 June 2021 in light of three UAPA accused – Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha – being granted bail by the Delhi High Court.)

On the night of 13 September 2020, activist Umar Khalid was arrested by the Delhi Police for allegedly playing a role in the organisation of the Delhi riots in February 2020, based on his speeches and involvement in the anti-CAA protests that swept the country from December 2019 onwards.

Khalid is the latest among activists, intellectuals and other dissenters to be accused of such a role in the supposed conspiracy behind the Delhi riots, and booked for it under the Unlawful Activities (Prevention) Act 1967 (UAPA), following similar arrests of Meenan Haider, Safoora Zargar, Devangana Kalita, Natasha Narwal, Khalid Saifi and many others.

The UAPA has also been invoked this year against Kashmiri journalists like Masrat Zahra and Gowhar Geelani, over their work in Jammu & Kashmir.

It has been over two years now since the UAPA became a household name after the arrests began in the ‘Bhima Koregaon’ case, which has seen prominent human rights advocates, activists, lawyers and intellectuals accused of instigating the violence in Bhima Koregaon in January 2018, and being involved in Maoist plots.

The accused in that case, arrested and charged under the UAPA, include advocates Sudha Bharadwaj and Surendra Gadling, lawyer and author Arun Ferreira, revolutionary poet Varavara Rao, as well as activists Gautam Navlakha and Vernon Gonsalves – the number of such persons arrested recently went up to 15, including DU professor Hany Babu and activists from the Kabir Kala Manch.

But what exactly is this UAPA? Why are human rights activists being charged under it? And what is the significance of using this law against them?

What is the Unlawful Activities (Prevention) Act?

The UAPA was introduced in 1967 as a legislation to set out reasonable restrictions on the fundamental freedoms under Article 19(1) of the the Constitution, such as freedom of speech, right to assemble peacefully and right to form associations. These restrictions were meant to be used to safeguard India’s integrity and sovereignty.

Over the years, terror-specific legislations like Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA) were repealed after running into legal trouble, and the UAPA became the primary anti-terror legislation in India. Since 2004, there have been a number of amendments to the UAPA to make it stricter when it comes to the rights of accused, and include more terror-related offences.

In line with its stated objectives, the UAPA punishes the commission, funding and support of “unlawful activities” and “terrorist acts”.

“Unlawful activities” is a term referring to any action that supports or is intended to support secession of any part of India, or “disclaims, questions, disrupts or is intended to disrupt” the sovereignty and territorial integrity of India.

“Terrorist acts”, defined in Section 15 of the UAPA, refer to any violent acts meant to threaten the security of India, or to strike terror in people in India or abroad.

However, its most controversial aspect has come to be the declaration of certain organisations as “unlawful associations”, “terrorist gangs” or “terrorist organisations”. Once any organisation has been declared by the government to fall within one of these categories, even being a member of it becomes a criminal offence.

Vague Concepts That Can be Used to Arrest Activists and Lawyers

The provisions of the UAPA have an extremely wide ambit, which makes it possible to use them against not just criminals and terrorists, but even authors, academics, lawyers for alleged terrorists, and human rights activists.

As lawyer and legal scholar Gautam Bhatia has previously pointed out in The Hindu, the definition of unlawful activities includes terms which are “staggeringly vague and broad”. For instance, under Section 2(o) of the UAPA, questioning the territorial integrity of India is an unlawful activity.

But why should mere questioning be a crime? And what exactly will be considered as questioning? Similarly, it is also an unlawful activity to cause “disaffection against India”. With no definition of disaffection in the UAPA itself, this becomes a provision that is ripe for misuse. Even if these offences were not arbitrary and ambiguous, punishing such things would “come close to establishing a regime of thought-crimes” as Bhatia points out.

The punishment of membership of unlawful associations, terrorist gangs and terrorist organisations is similarly problematic. Terrorist organisations are simply those designated as such by the state, which get included in a list in Schedule 1 of the UAPA, and if you’re found to be a member of one of these, you could be imprisoned for life.

However, there is no definition of membership in the UAPA, which has allowed investigating authorities to use even the flimsiest of excuses to book people as members of unlawful associations or terrorist organisations – from possession of books and pamphlets, to expressing sympathy for members of the organisation or the aims of the organisation. For instance, when investigating links to Naxal or Maoist groups, articles about revolutionary movements, even copies of the Communist Manifesto, have been used as “evidence”.

In 2011, the Supreme Court was hearing a challenge to the conviction of a person for being a member of a banned organisation under the old TADA (which was the same as membership of banned organisations under the UAPA). In the landmark Arup Bhuyan case, the apex court passed an order which clarified that

“mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”

However, even after this ruling, this has not meant that those charged with membership on flimsy grounds have been able to get justice from the courts. In 2013 and 2014, the Bombay High Court granted bail to activists from the Kabir Kala Manch who had been arrested under the UAPA, citing the Arup Bhuyan judgment. But in 2015, the same High Court refused bail to other activists from the group – though they were finally granted bail by the Supreme Court, they had to remain in jail till January 2017.

Draconian Procedural Aspects of the UAPA

The UAPA has become a weapon of choice to use against dissidents (by previous governments as well – see the arrest of Binayak Sen during the UPA’s tenure) not just because of its ambiguous substantive provisions, but also its draconian procedural provisions, which allow the state to keep people in custody for extended periods of time without bail.

Section 43D(2) of the UAPA doubles the amount of time one can be remanded to police custody (to 30 days), and allows 90 days of judicial custody even for offences which would otherwise only allow up to 60 days.

If a person is charged with an offence under the UAPA, they cannot get anticipatory bail even if released by the police, and getting bail is almost impossible. This is because Section 43D(5) states that a court cannot release someone on bail if they are accused of terror-related offences, and from the case diary and other basic materials, the case against them is prima facie true.

The bail provision is particularly problematic since it basically allows for nearly indefinite imprisonment even without conviction of the accused, without even any concrete proof – the prosecution/police/state version just needs to indicate a terror-related offence on the face of it.

While high courts like the Delhi High Court had tried to ensure that the police have some reasonable evidence to back up their claims of a prima facie terror-related case for the bar on bail to apply, the Supreme Court in the Watali judgment of 2019 delivered a judgment which has allowed the authorities to say that the courts cannot strictly scrutinise the material provided to claim that there is a prima facie case. This has made it even more difficult for people accused under the UAPA to get bail, even if the case against them is extremely flimsy.

Indefinite Imprisonment Without Trial

Even if the person is eventually acquitted of the charges, the delays in conducting judicial proceedings mean the case may only get heard several years after their arrest – failure to get bail means they have to spend the entire time in jail. For instance, Sudhir Dhawale, one of the first five activists arrested in the Bhima Koregaon case back in June 2018, had previously been kept in jail for 40 months before he was acquitted the last time.

To ensure that they can keep the accused in custody for as long as possible, the authorities will often throw the book at the accused. In addition to IPC offences, they often set out a laundry list of UAPA charges, including all possible terror-related ones, against the accused in the hopes that something will stick.

Take for example the list nine UAPA offences with which the Bhima Koregaon accused are charged:

1. Section 13: committing, abetting or advocating the commission of an ‘unlawful activity’ – activity relating to secession from India, disruption of our sovereignty or integrity, or causing disaffection against India.
2. Section 16: committing a ‘terrorist act’
3. Section 17: raising funds for a ‘terrorist act’
4. Section 18: conspiracy to commit a ‘terrorist act’
5. Section 18B: recruiting someone to commit a ‘terrorist act’
6. Section 20: being a member of a ‘terrorist gang’ or ‘terrorist organisation’
7. Section 38: being associated with a terrorist organisation - in this case, the Communist Party of India (Maoist)
8. Section 39: inviting support or giving support to a terrorist organisation
9. Section 40: raising funds for a terrorist organisation.

This tactic of just throwing in terror-related charges to make it difficult for the accused to get bail, even if there is no material to support them, has been used in the Delhi riots cases as well.

When Safoora Zargar applied for bail, for instance, the Delhi Police only provided material which made out a prima facie case of an ‘unlawful activity’, not a terror offence under the UAPA, but because they had also booked her under one of the terror offences, the court refused to grant her bail.

She was eventually released on bail on humanitarian grounds after the government agreed to this in the Delhi High Court, avoiding an adverse finding on this legal point.

(This story was originally published in 2018 following the arrest of the Bhima Joregaon activists. It has been updated to include recent developments like the Watali judgment, as well as more recent cases including Umar Khalid’s arrest.)