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Journalism of Courage
The Delhi Police has sealed the office of news portal NewsClick, alleging it received money for pro-China propaganda. The FIR against the portal invokes the Unlawful Activities (Prevention) Act (UAPA), the stringent anti-terror law.
The main allegation in the FIR against NewsClick is that the newsportal allegedly received illegal funding from China routed through the United States.
It is learnt that the FIR has been registered under various Sections of the UAPA. Among the key provisions invoked is Section 16, which prescribes punishment for terrorist acts.
Section 15 of the UAPA defines “terrorist act” and is punishable with imprisonment for a term of at least five years to life. In case the terrorist act results in death, the punishment is death or imprisonment for life. This is an offence that describes violent acts that are serious in nature.
The provision reads: “Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, [economic security], or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,…”
The provision describes the use of “bombs, dynamite or other explosive substances; causing death or loss/ damage/ destruction of property; disruption of any supplies or services essential to the life of the community in India; damage to the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material” as terrorist acts.
The other provisions invoked against NewsClick include Section 13 (unlawful activities), 16 (terrorist act), 17 (raising funds for terrorist acts), 18 (conspiracy), and 22 (C) (offences by companies, trusts) of the UAPA, along with IPC sections 153 A (promoting enmity between different group) and 120B (criminal conspiracy).
UAPA presents an alternate criminal law framework where the general principles of criminal law are reversed. By relaxing timelines for the state to file chargesheets and its stringent conditions for bail, the UAPA gives the state more powers compared with the Indian Penal Code (IPC).
Enacted in 1967, the UAPA was strengthened by the Congress-led UPA government in 2008 and 2012. The test for denying bail under the UAPA is that the court must be satisfied that a “prima facie” case exists against the accused. In 2019, the SC defined prima facie narrowly to mean that the courts must not analyse evidence or circumstances, but look at the “totality of the case” presented by the state. In NIA v Zahoor Ahmed Watali, the SC read the bail provisions strictly, holding that courts must only be satisfied that a prima facie case can be made out to deny bail, and not consider the merit or the admissibility of the evidence.
Section 43D(5) reads: “Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.”
It adds: “Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
