While the urban-educated India cannot find time away from relating themselves to the memes popular over the internet, five prominent rights activists — Sudha Bharadwaj, Vernon Gonsalves, Varavara Rao, Gautam Navlakha and Arun Ferreira — have been arrested for allegedly ‘voicing their opinions’.
The Supreme Court ordered that the activists will not be arrested in the meantime, but will be put under house arrest till 6 September, 2018. Justice DY Chandrachud said, "Dissent is the safely valve of democracy. If you don't allow dissent, the pressure valve of democracy will burst." Twitter has been taken over by #NoMoreFakeCharges. But the question that we should ask is — Is the law that seized away their liberty, really draconian?
The law under consideration is the Unlawful Activities (Prevention) Act, (UAPA) 1967. It was enacted by the Congress and aimed to put a stop to activities which threatened the sovereignty and integrity of India. The ambiguity of the law restricts freedom of speech and expression and the court had to always actively intervene to protect the said rights of the citizens charged under this Act.
Article 19(1)(a) of the Constitution guarantees right to freedom of speecha and education. It is a natural right, meaning that we are entitled to it since our birth. Unlike a statutory right, which can at any time be revoked by a simple act of the Parliament, like the right to an anticipatory bail, this natural right can only be taken away during times of Emergency and that too in a restrictive manner. But, this right is not an absolute right. It has its exception provided under Article 19(2) of the Constitution of India. Some of those exceptions are sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order. So, as can be seen, the inception of the UAPA Act was grounded on the exception of sovereignty of the State as found in our Constitution.
The UAPA Act has undergone several amendments of the Constitution. An amendment was made in the year 2004 by the Manmohan Singh government to incorporate most of provisions of Prevention of Terrorism Act, 2002 (POTA), an Act which was previously withdrawn by the Parliament. Thus, this was a subtle way of introducing their fallen act into an existing one. Further, this act was again amended by the same government in 2008 after the Mumbai attacks. The latest amendment was made in 2012.
So, what exactly are the challenges imposed by the Act? The first problem lies with the definition clause itself. There is no definition of terrorism that has been provided. Terrorist Act has been defined under Section 15 and according to Section 2(k), the definition of a terrorist has to be construed according. This has a huge logical fallacy as this provides for a wide scope of interpretation which can be used and abused by the Government of the day.
Moreover, the definition of 'unlawful activities' under Section 2(o)(ii) includes action which disclaims, questions, disrupts the sovereignty and territorial integrity of India. So tomorrow, if a person proclaims the Doklam standoff was a victory for China, then, under such ambiguous definition, he or she can be said to be carrying out an unlawful activity.
Further, a bare perusal of Section 43D can show the loopholes in the law. According to sub-section 2(b), detention without filing of a chargesheet can be stretched upto 180 days. Even more shocking is sub-section 5 which allows the Court to, on a perusal of the case diary or the report made by the police, not grant bail to the accused if the Court believes there are reasonable grounds for believing that the accusation against such person is prima facie true. The simple logic that runs against this provision is that the report of the police which could be coloured based on their prejudice in which the accused will be painted guilty.
The government is also empowered to label any organisation as a terrorist outfit by a notification in the Official Gazette under Section 35 of the UAPA. This is in light of the fact that there is definition of terrorism in the first place. Even more funny was the fact that the membership of a terrorist organisation was a criminal offence under the act, but membership as such was not defined. So, if an 80-year-old man, demands agricultural reforms, and supports an organisation which has been notified as a terrorist group, he could be termed as a member of a terrorist organisation. This was, however, clarified by the Supreme Court in 2011 where they held that “membership” was limited to cases where an individual engaged in active incitement to violence.
It is to be remembered that the provisions under consideration have had their mirror provisions under the lapsed TADA and POTA Act wherein there were several wrongful arrests made in Gujarat and Punjab using the aforementioned Acts. The Punjab government has proposed an amendment to Section 295 AA of the IPC saying sacrilege of all religious texts is punishable with life imprisonment. If such acts and amendments would be enacted then it can turn out to be an indirect threat to democracy.
It should be remembered that a democracy which breeds draconian laws turns itself to a fascist state, and thus the BJP government should correct the mistakes that have been made by their political opponents by enacting this law.
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