A narrative is underway, and the Tripura police is showing how it can best be done. First, members of VHP and HJM take out a march protesting against another country. The march attacks houses, shops and vandalises a mosque. Next, a fact-finding team visits the area and releases its findings blaming the police for inaction. Within a few days, the police books the activists under S.13 of UAPA (and other IPC sections), and soon after, another 102 social media users (overwhelmingly Muslims) under the same sections for spreading “objectionable news items and/statements”. The police hold that there was a “one-to-one correlation” between the fact-finding team’s visit and social media users.
The protests, ranging from the Editors’ Guild to sections of the Opposition, against the police action are heartening. After all, there is something flagrantly wrong as NCRB reports zero UAPA cases in Tripura between 2014-20. Nonetheless, the police actions are not irregular or episodic; they are part of a pattern visible elsewhere in the country. Recently, the Jammu and Kashmir police booked students, faculty and staff of two medical colleges under S.13 (UAPA) and S.505 (IPC) for raising “anti-India slogans” during the Indo-Pak cricket match. Earlier, in March 2021, an assistant professor at Udhampur was booked in an old case under various sections of the IPC and UAPA. In February 2021, a grieving father in Pulwama was booked under the same section for allegedly raising anti-India slogans during the funeral march for his son who had died in a gunfight. NCRB figures reveal a third of all UAPA cases in 2020 have been registered in J&K, with a more than five-fold rise between 2014-19.
Such egregious application of the UAPA has caused concerns regarding its alleged “misuse”, and the rational answer would be to find ways to check “misuse”. But what constitutes the division between use and misuse? Consider S.13 (punishment for unlawful activities), which the police use often in conjunction with other sections of the law. Besides the usual inventory of well-defined verbs in S.13(1), such as “commits”, “advocates”, “abets”, “advises”, “incites” or “takes part”, there is S.13(2) which reads: “Whoever, in any way, assists any unlawful activity of any association declared unlawful… shall be punished.” What does “in any way” mean? S.2(o), which defines “unlawful activity” does so in even more vague terms, as anything done by a person, whether as an act, or words, verbally, through signs or otherwise. What does “otherwise” mean? Likewise, S.39 criminalises support to a terrorist organisation, where “support” is not even defined!
The semantic slippages are politically convenient as the UAPA vests extremely wide and arbitrary powers in the government to label something an “unlawful activity”. The political “use” of UAPA is scripted into the law itself, and the question of “misuse” does not arise. There need be no actual challenge to the sovereignty of India, as any act, at any time, can be declared unlawful or terrorist regardless of its content and objective. In the past, persons have been arrested under S.13 and 39 on the pretext that they possessed “banned” books and pamphlets, that they participated in protests etc., although the Court has clarified that books and pamphlets do not an unlawful or terrorist activity make. Even so, it took two levels of appeal, to the high court and then the SC, for Thwaha Fasal (journalism student) and Alan Shuhaib (law student) to obtain bail against allegations of support to Maoist groups.
So, even when we believe that social media posts, per se, cannot be said to constitute an “unlawful” or “terrorist” activity, we are witnessing how they can be labelled as unlawful. This triggers a host of draconian procedures effectively barring bail, reversing burden of proof. By the time judges get to apply themselves to the allegations, the accused would have already spent years in custody. The conviction rate of 2.2 per cent testifies to how the UAPA enacts process as punishment.
The police action in Tripura is a reminder that the UAPA is a catch-all law with a grim political caveat. Who will be booked or not is a political decision. It is time for political parties to eschew their blinkered approach and make an effort to repeal this unlawful law.
This column first appeared in the print edition on November 12, 2021 under the title ‘An unlawful law’. The writers are secretaries, PUDR.