A Breach in Freedom: Understanding UAPA


India was pushed into complete lockdown on 22nd March. This was done to contain the outbreak of Covid-19. Some say this lockdown was a blessing in disguise. Mountain ranges were visible from faraway places after decades. All kinds of wildlife could be seen open in the street claiming what was rightfully theirs. But this blessing turned into condemnation for some people. Daily wage laborers had to walk barefoot to return to their homes. And some had to walk behind the bars under the provisions of national security laws. Against the plight of these workers and a nation besieged by an invisible enemy, the government is trying to make its way to an authoritarian majoritarian democracy by utilizing the lockdown to suppress dissenters especially those who protested against the CAA_NRC in India. 

When it comes to national security there are a plethora of laws persevering to keep India safe from terrorist activities. The labyrinth of state security laws, in which India finds herself increasingly entangled every passing day, began with Preventive Detention Act (1950-69) which empowered the authorities to detain an individual for up to one year without any charges. This was done to curb the disruption and violence caused by the partition of India. Then came the notorious AFSPA (Armed forces Special Power Act) in 1958 infamous for its tendency to provide the armed forces with the greatest institutional impunity against human rights violations. This law was first introduced in Nagaland which eventually spread, like coronavirus devoid of any cure, to all the seven northeastern states and of course to the erstwhile state of Jammu and Kashmir. Afterward, it was Unlawful Activities (Prevention) Act 1967, and there was no stopping to such laws which kept on proliferating from Maintenance of Internal Security Act 1971-77 which reinstated the powers of PDA to National Security Act 1980, a result of blending two laws, namely; PDA and UAPA, to Terrorist And Disruptive Activities Act 1985-95, Prevention of Terrorism Act 2001-2004 and National Investigation Agency Act. All these laws reek of colonial barbarism which was or are being used mainly to muzzle dissent and protests. Sensing this fear, Surendra Mohanty of Gantantra Parishad had said in the parliament at the time of passing of the AFSPA, “we want a free India. But, we don’t want free India with barbed wires and concentration camps, where havaldar (sergeants) can shoot at sight any man”. The then PM of India Pt. Jawaharlal Nehru then replied, “ where there is violence it has to be dealt with by government, whatever the reason for it may be; because otherwise, you drift; the country drifts into; if I may use the word, Fascist methods”.

The passing of UAPA in 1967 and its continuation with a dangerously amended version tends to vindicate Mr. Surendra’s fears. When the UAPA was passed in 1967 it was done to ‘strengthen the security’ of the nation. It gave the authorities to mark organizations as “unlawful” and also freeze not only bank accounts but all kinds of activities of the members and sympathizers of that organization. But the problem and the hidden dictatorial tendency of the Act came into the forefront when the law didn’t define the term unlawful clearly. The term “unlawful” is so vaguely defined under Section 2 (1) (O) of UAPA that it has taken within its ambit a broad spectrum of activities including something as fundamental as the possession of Marxist literature. This has led to rampant misuse of the law which has led to politically motivated arrests of political opponents and human rights activists.

After the Act was amended in 2019 it put enormous power in the hands of the government. The law this time gave the government the power to designate individuals as a terrorist and seize their property without any proper evidence and process, for any act, as Section 15 of the Act states, which ‘threaten’ or are even ‘likely to threaten’ unity and integrity of India. This definition of terrorism is so vague and overbroad that even a melee or a trivial act of violence against a person or property, which in any way is related to the government, can be deemed as a threat to India.

This calls for a boisterous laugh because India is a nuclear able country but the parameters which are set forth to gauge the intensity of threat to India’s “unity, sovereignty, integrity, and security” is set so low that even possession of communist or revolutionary literature can throw you behind bars under the provisions of UAPA. This shows the sinister intention of the government which is bent to muzzle any kind of dissent and doesn’t want any new idea to burgeon and tramp over it before its inception.

The amendment came with an assurance from the Home Minister that no human rights will be violated and the law will only be used to tackle terror. The witch hunt of the organizers of Elgar Parishad who are mostly lawyers, human rights activists, and academicians, and of the anti-CAA protestors who are mainly student activists, by the police forces us to look the other way. The charges invoked against them are nothing but blatant abuse of power. How can someone be booked under anti-terror laws for protesting? Their arrests are not only condemnable but also violate their fundamental rights. The Act violates the right to freedom of speech and expression enshrined under Article 19(1) (a). Also, the degradation of the social life of the person can’t be overlooked. 

If the provisions of the UAPA were to be used specifically for the terrorist and to counter-terrorism it would have been a good law and the government deserved every bit of credit for bringing them to justice. But that has not been the case. Even though the likes of Masood Azhar and Hafiz Saeed were charged under the provisions of UAPA they are still free. The ones behind bars are activists, lawyers, and academicians. It seems that the key counter-terrorism law is less effective against the terrorists and is more effective at quelling dissent. All these incidents have put a doubt in the minds of all those citizens who dream of India as a country where dissent is given the same reverence as the many of gods of this land, where protests for a fair cause is as holy as the Ganga, where the loudspeakers of the Jama Masjid can blare with ‘Inquilab Zindabad’ to instill fear in the hearts and minds of the oppressors. With this law in place, many feel like the argumentative nature which is required for the democracy to thrive on will be lost and what will prevail is silence. Silence is a powerful enemy of social justice. If the government is let loose to formulate and implement such draconian laws and use it against its people, then we will not be giving a bright and thriving India to our posterity.


Fahad Ghani is a second year Law student at Aligarh Muslim University. He tweets at @FahadGhani6

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