At a press conference held by 37 organisations and social groups on Wednesday opposing the arrests of five activists by Pune police at the Mumbai Press Club, advocate Mihir Desai, one of the speakers, said: “I will not say that the law (UAPA) has been misused as this is the very purpose of this law; to keep people behind bars for long periods as they cannot apply for bail.”
One of the demands raised by the groups was to repeal the Unlawful Activities (Prevention) Act, 1967, under which the activists had been booked by Pune police alleging that it has been repeatedly used by the state to muzzle dissent. There have been several demands to scrap the law that has been amended four times since it came into being in 1967.
Manisha Sethi, an activist of the Jamia Teachers Solidarity Association, who has written Kafkaland — Prejudice, Law and Counterterrorism in India, said: “The most dangerous thing about the law is the vague definitions of things like ‘unlawful’ and ‘terrorism’ that are nebulous and ever-expanding. It is quite subjective and the executive can easily declare anything unlawful.”
She added: “The Act says unlawful activity includes anything spoken, signed, written, signs or visible representation, which can also make songs or a painting unlawful.”
Sharib Ali, programme head at Quill Foundation, a research and advocacy group, said some of the provisions of the UAPA, like denial of bail, have made it a law used for long preventive detentions.
“Some of the provisions of the UAPA do away completely with our constitutional safeguards. At some point, the government, those who formulated the law, have to be held accountable and asked to review the law and asked whether it has been effective. It has not been effective in the sense that it has silenced dissent and targeted those who are healthy for the constitution and the country,” Ali said.
Mohammed Atik, a computer engineer, spent four years in custody, from 2008 to 2012, before being granted bail. He was booked under the UAPA, along with other charges, after being arrested by Mumbai Police on charges of being a member of Indian Mujahideen.
While granting him bail in 2012, the Bombay High Court had observed that there was no prima facie evidence to show his active part towards achieving the objectives of an organisation by unlawful means or resorting to violence.
Currently practicing law, Atik said: “The public representatives have enacted the law keeping in mind the safety and interest of citizens. But there is more misuse of the law than proper implementation. To change this, there should be some accountability on the police regarding its misuse or deliberate wrong application to keep the accused behind bars for a longer period. Even from the point of view of the accused, there should be a remedy in the law to bring the accused, who have spent many years in incarceration, in the mainstream.”
Nearly 10 years after the offence was registered, the trial is yet to commence in the case with 13 of his co-accused still behind bars.
Other cases of prolonged incarceration and eventual dropping of UAPA include Rakesh Dhawade’s case. He was booked in the 2008 Malegaon blast case. He was in prison for over nine years till the court passed an order dropping all charges, including UAPA, against him only finding evidence to try him under the Arms Act.
Asked about the law, former Mumbai Police Commissioner M N Singh, however, said there was need for an anti-terror law like the UAPA.
“The country is still grappling with the problems of terrorism and Naxalism. Other countries have tougher laws than ours laws to deal with such issues. If you want the police to investigate such cases, you cannot tie their hands and expect them to take on such elements. There are reasonable safeguards within these laws to ensure that they are not misused. It is a very narrow-minded thought to scrap the law and the country will have to pay a huge price if the law is scrapped.”
He added: “There could be one in a 100 cases where the law may have been wrongly used. But what about the other 99 cases where it is required?”
The complexities of the UAPA can also be seen in its interpretations by courts.
The Bombay High Court in an order in January 2013 had granted bail to members of Kabir Kala Manch, a cultural group. “…It needs to be emphasised that in view of the fundamental freedoms guaranteed to the citizens of this country, the activities that can be justified with reference to those freedoms and the activities, which go beyond that and attract criminality, need to be clearly demarcated,” Justice Abhay Thipsay had said in his order.