UAPA, PMLA allow today’s Warren Hastings to exploit law for political gain

Today, when the freedom of thousands of Indian citizens is curtailed and they are imprisoned without conviction, the sanctity of our hard-fought freedom movement is eroded

India’s struggle against colonialism was not merely for a regime change. It was a national freedom movement. (Express Archives)

Written by: Shailendra Sharma

6 min readDec 13, 2023 06:43 PM IST First published on: Dec 13, 2023 at 06:43 PM IST

In 1775, Raja Nand Kumar, an influential person in Bengal, was executed by hanging. His trial and subsequent conviction during East India Company’s rule is called the “judicial murder” of Raja Nand Kumar.

Today, almost 250 years on, this event reminds us what the abuse of judicial processes to settle political matters looks like.

Nand Kumar had accused Warren Hastings, the then Governor General of Bengal, of bribery and corruption. Hastings was found guilty by the Council of East India Company and asked to return the embezzled amount. He got even with Nand Kumar by having him charged in a forgery case. All 12 members of the jury were Englishmen and having found Nand Kumar guilty as charged under English law, they sentenced him to death.

Also Read | Supreme Court must use cases pending against UAPA to examine its scope

Two key issues were ignored during the trial. First, till then, there was no provision for applying the Forgery Act, 1728, an English law of the British Parliament, on Indians. Yet, Nand Kumar was tried under the law. Second, the jurisdiction of the Supreme Court at Fort Williams, which was established in 1774, was arbitrarily expanded to try an alleged crime committed much before its formation.

So, why was the Supreme Court and the Forgery Act pressed into service?

The Supreme Court was involved in keeping the local Diwani Adalat out. It was the Diwani Adalat, consisting of Indian magistrates, that tried cases involving Indians as per the prevailing laws. Despite no territorial jurisdiction, the English Act was invoked because the punishment under that law was death by hanging as opposed to imprisonment and fine. Nand Kumar’s fate was sealed the day he was charged with an offence under English law, to be tried in a court run by Englishmen.

Nearly 250 years later, after the rise and fall of British Rule in India, and more than 70 years since the adoption of the Constitution of free India, let us examine two laws — the Unlawful Activities Prevention Act (UAPA), 1967, and the Prevention of Money Laundering Act (PMLA), 2002, and see how far we have come.

While the UAPA is a 55-year-old law, amendments in 2019 empowered the government to designate an “individual” as a terrorist on the same grounds as “organisations”. Similarly, the PMLA is a 2002 Act but the rules have been amended from time to time to expand its applicability.

Also Read | Karan Thapar writes: If they weren’t Kashmiri Muslims, would the students have been charged with UAPA?

The UAPA began to be strengthened from 2004 onwards in response to the UN Security Council resolution calling for stringent measures against global terrorism in the wake of the September 2001 terrorist attack in America. The PMLA was enacted as India’s commitment to the UN resolution of 1990 to “develop a mechanism to prevent financial institutions from being used for laundering drug-related money” and being a signatory to the 1998 UN declaration on countering the “World Drug Problem”. These laws were an outcome of the global situation in which sovereign nations like India were expected to create a strong legal mechanism to face the menace of global terrorism and drug trafficking collectively.

Now let us look at its application in India.

According to a statement by the Union Minister of State for Home in Lok Sabha, 4,690 people were arrested under the UAPA between 2018 and 2020. But only 149 were convicted in this period.

So, what happens once a person is arrested under UAPA? Under section 43D(5) of the Act the “accused person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

In the case of PMLA, as per the Enforcement Directorate, up to March 31, 2023, 5,906 people were charged and so far, only 24 have been convicted. For ones who are arrested, section 45(1)(ii) of PMLA applies, which says, “no person accused of an offence shall be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence”.

In a nutshell, the freedom of a person arrested under UAPA or PMLA remains suspended unless the court finds “reasonable ground” to believe that he/she is not guilty, that is, basically imprisonment without conviction. The basic tenet of justice, “innocent until proven guilty” does not apply in these cases, leading to thousands of people being arrested and put in jail for months and years even when the charge against them is yet to be proven. So, a stringent law, which was enacted to combat organised terrorism and drug trafficking, seems to have empowered the already powerful state against its citizens. No wonder the Warren Hastings of today also uses it for “judicial kidnapping” of uncomfortable opponents, just like the Warren Hastings of colonial India used the Forgery Act for “judicial murder”.

India’s struggle against colonialism was not merely for a regime change. It was a national freedom movement. Today, when the freedom of thousands of Indian citizens is curtailed and they are imprisoned without conviction, the sanctity of our hard-fought freedom movement is eroded. In every day and age, there is bound to be a Warren Hastings, but it is the duty of every Indian who has sworn to protect the Constitution and uphold the rule of law to not be the jury that facilitates the “judicial murder” of Nand Kumar. Don’t let this “judicial kidnapping” of thousands of Indians continue.

The writer is Principal Advisor to Director (Education), Government of NCT, Delhi. Views are personal