On 3 November, two lawyers who were part of a fact-finding mission to Tripura to look into the claims of anti-Muslim violence in the state, were sent notices by the Tripura Police informing them that there was a criminal case against them for their social media posts and statements regarding their findings.
Advocates Ansar Indori of the National Confederation of Human Rights Organizations (NCHRO) and Mukesh of the People's Union for Civil Liberties (PUCL) were told that a case has been registered against them at the West Agartala Police Station...
"for promoting enmity between religious groups as well as provoking the people of different religious communities to cause breach of peace."
Troublingly, the case against them isn't just under provisions of the IPC meant to deal with this kind of situation, but also the draconian Unlawful Activities (Prevention) Act – the UAPA.
Not only is the invocation of the UAPA extremely questionable from a legal standpoint in this case, it also appears to be another example of the worrying trend of misuse of this special law just to make bail difficult.
'Invoking UAPA is Too Much of a Stretch'
The fact that the Tripura Police have filed a criminal case against the members of the fact-finding mission is itself a matter of concern, even leaving aside the UAPA issue.
The lawyers went to the ground on behalf of PUCL, surveyed the areas where violence took place, and spoke to eyewitnesses and locals before arriving at their findings, which were shared on social media.
These claims have been made by news reports on media sites like Maktoob Media and even Al Jazeera, referencing statements by locals.
The report also suggests that there is a need for further investigation, and has recommended the setting up of a committee headed by a retired high court judge to do so.
The police may dispute aspects of the report, titled 'Humanity under attack in Tripura; #Muslim lives matter' (which can be accessed here), including the specific finding on vandalism of the Chamtila mosque in Panisagar, but that would not necessarily merit a criminal case against the fact-finders.
The manner in which the fact-finding mission was conducted and the contents of the report clearly show there was no intent to spread hatred or incite violence. Establishing such intent is crucial for even the IPC offences they have been booked under: Sections 153A (provoking enmity/hatred between communities), 153B (assertions prejudicial to national integration), 503 (criminal intimidation), and 504 (intentional insult to cause breach of peace).
Senior advocate Mihir Desai, vice-president of PUCL and a leading human rights law expert, notes that these kind of alternative fact-finding missions which question official narratives have been around for a century, with Mahatma Gandhi leading such attempts in Champaran and calling for one into the Jallianwala Bagh massacre – and have not faced this kind of pushback.
"But this is a government which doesn't want any alternate narrative to emerge from anywhere on any issue. So, essentially, this is nothing else but a way to bring about a chilling effect on people who want to come out with an alternate view from that of the official position."Mihir Desai
Assuming there are some grounds to contest what the fact-finding mission has found and stated on social media, Desai says he "does not understand" why the UAPA has been invoked when provisions like Section 153A already cover the allegations of the police, that the social media posts by Indori and Mukesh promoted enmity between different communities.
Section 13 of the UAPA prescribes the penalty for 'unlawful activity' – up to seven years' imprisonment plus a fine.
'Unlawful activity' is defined in Section 2(o) of the UAPA as any act which:
is intended to support or incite a claim to bring about secession of a part of India;
disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India;
causes or is intended to cause disaffection against India.
From a plain reading of this section, it is difficult to see how the Tripura Police have slapped an 'unlawful activity' charge against Indori and Mukesh, even if we accept their allegation that the information shared by them on social media about attacks on the Muslim community in Tripura is false or inflammatory.
"It is absolutely shocking," says Dr Yug Mohit Chaudhry, a senior advocate and leading criminal lawyer in Mumbai. "I don't know if this is a case of bungling by the police or complete intolerance for dissent. But there have to be some facts to actually attract the UAPA, it's too much of a stretch here."
There are no key Supreme Court judgments which deal with the interpretation of the offence of 'unlawful activity' under the UAPA, so it is not easy to point to a clear authority against the police's action here.
However, the Supreme Court's landmark Kedar Nath Singh judgment of 1962 on the offence of sedition does offer some insight into how such offences have to be understood.
While sedition under the IPC and 'unlawful activity' under the UAPA are different criminal offences, the definitions of both include inciting "disaffection against India".
In Kedar Nath Singh, the court had noted that any criminal law provision which has an impact on freedom of speech has to be tied to one of the grounds for reasonable restrictions on speech in Article 19(2) of the Constitution.
When it came to the offence of sedition, the relevant ground was disturbance of 'public order'. The Supreme Court held that for some act to amount to inciting "disaffection against India", it needs to involve an intent or tendency to create disorder by 'resorting to violence'.
Without any actual connection to violence, the offence of sedition cannot be invoked, as the Supreme Court has held in subsequent cases as well, including the Balwant Singh judgment in 1995.
When it comes to the lawyers and their social media posts, they have neither called for violence and nor has any violence been committed as a result of their statements. The UAPA charge, therefore, makes very little sense here.
UAPA Being Used to Make Bail Difficult?
So if there are no grounds to make out a UAPA case here, why has it been invoked against the lawyers?
Both Desai and Chaudhry believe this is because of the complications this creates for getting bail.
Because the police have used the offence of 'unlawful activity' under Section 13 rather than one of the terror-related offences under the UAPA, the dreaded Section 43D(5) of the UAPA, which makes bail nearly impossible to get (at least from the lower courts), does not apply in this case.
However, as Desai notes, the UAPA prohibits grant of anticipatory bail in any case under it, including for 'unlawful activity'. As a result, Indori and Mukesh cannot approach the courts under the regular procedure for anticipatory bail, which is what people in their position would normally do.
Chaudhry points out that they could still do so as the police would still have to show that the UAPA is attracted by the facts of the case. "Simply because the police put UAPA charges would not bar anticipatory bail," he explains.
Nonetheless, in practice, this is unlikely to help in a lower court. Which means the two lawyers would probably end up having to argue this in the high court, which can grant protection from arrest outside of the regular anticipatory bail procedure as well.
As the police have not yet arrested the two lawyers, instead sending them notices under Section 41A of the Code of Criminal Procedure, this issue is likely to be an important one in the coming days.
Invoking the UAPA also has consequences for the regular bail procedure if the lawyers are eventually arrested. Even though the strict conditions specified in Section 43D(5) for terror offences wouldn't apply, courts look at the seriousness of an alleged offence when they have to consider whether to grant bail to someone.
Bringing in a UAPA charge would allow the Tripura authorities to drum up the seriousness of the case against the two lawyers, which would help them contest any attempt to obtain bail.
This casual usage of serious criminal charges even when not really justified, just to make bail more difficult, has become part of an increasing trend in recent years, from a 165 percent increase in sedition cases from 2016-2019 to a major jump in UAPA cases.
According to data cited by the Ministry of Home Affairs, the number of arrests made under the UAPA steadily increased from 2015 to 2019, from 1,128 to 1,948. Only 2 percent of those arrested in this time have been convicted. Since 2019, in Jammu and Kashmir alone, 2,300 people have been booked under the UAPA, 1,100 of whom are still in custody.
The normal modus operandi has seen terror charges under the UAPA being used even in cases involving students, activists, protesters and journalists, because of the bail conditions.
However, in 2021, there has been a degree of pushback from high courts across the country, which have scrutinised the police's claims to see if terror charges are really warranted, and upon finding they are not, granting bail to accused persons.
The most notable amongst these was the Delhi High Court, when it conducted a detailed analysis of when criminal action should be considered to rise to the threshold of terrorism, when granting bail to Delhi Riots accused Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha.
While the Supreme Court has said the Delhi High Court's orders in that case should not be treated as precedent, it conducted a somewhat similar analysis recently when granting bail to two UAPA accused from Kerala.
This perhaps explains why Section 13 and 'unlawful activity' has been used by the Tripura Police in this case and the Jammu and Kashmir Police in the case involving students celebrating Pakistan's win over India in the T20 World Cup.
Given the vagueness of what can be considered an 'unlawful activity' and the intent of the executive, it is highly possible that cases under Section 13 will start becoming more common.
This provision may not be as stringent, but it will still make getting bail more difficult, including in terms of public perception. "There are these anti-national offences which are being resorted to by the police every time people do things that the government is not in agreement with, whether it is waging war, sedition or the UAPA," suggests Chaudhry.
Over to the Tripura High Court
Whether this particular case of seeming misuse of the law will be nipped in the bud is likely to be up to the Tripura High Court. The high court took suo motu cognisance of the recent violence and has asked the state government to submit a report on it by 10 November.
As part of its directions, it had said the police should take action against those who'd been spreading hate and falsehoods on social media – which played a major role in the violence as The Quint has documented here.
The police's attempts to go after the fact-finding mission appears to be at odds with the intent of the court's directions, so it is something that could very well be considered at the next hearing on 12 November.
In the meanwhile, the lawyers are also likely to approach the high court for quashing of the case against them, as well as to secure protection from arrest.
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