From Pinjra Tod to Kashmiri journalists: What's the deal with UAPA?

A week after Natasha Narwal and Devangana Kalita, activists from the feminist collective Pinjra Tod were arrested, Narwal has been charged under the Unlawful Activities Prevention Act (UAPA).

Since the anti-Citizenship (Amendment) Act (CAA) protests and abrogation of Article 370, this legislation has been a recurring and prominent feature—invoked against activists like Sharjeel Imam, students such as Safoora Zargar, Meeran Haider and Gulfisha Fatima, and journalists in Kashmir, most recently, 26-year-old photojournalist Masrat Zahra.

Over the last few years, Maoist ideologue and poet Varavara Rao, lawyer Sudha Bhardwaj, and activists Gautam Navlakha and Vernon Gonsalves, have been charged under the Act.

Still, the statute and its implications have remained under the radar, as amendments to UAPA came when the bifurcation of Jammu and Kashmir as well as the changes in its semi-autonomous status held the nation’s attention. Passed on 14 August 2019 with little scrutiny, said amendment, among other things, widened State subjectivity—allowing the Centre to label an individual a terrorist if it “believes" it to be the case.

Mint spoke to Chitranshul Sinha, advocate-on-record in the Supreme Court and author of The Great Repression: The Story of Sedition in India to understand what being charged under this law means, both in its use by the state and for those charged, particularly during a lockdown. Edited excerpts.

Broadly, what is it that sets UAPA charges apart from criminal charges under the Indian Penal Code (IPC)? Under what circumstances is UAPA ideally to be invoked?

The UAPA is a special statute which was enacted in 1967 as a law to prevent, curb and punish any ‘unlawful activity’. Such activities were, loosely speaking, seditious activities or such other activities against the territorial integrity and sovereignty of India. The UPA government in 2004 expanded the scope of UAPA to include terrorist activities and targeted terrorist organizations. So these provisions are very specific and are in addition to offences contained in the IPC, which are to be invoked only in cases of threat to the sovereignty and territorial integrity of India.

How do these charges affect students and activists? Why do you think they are becoming such a common feature since the anti-CAA protests? Have the amendments to the UAPA last year impacted the way they have been used against students of late?

Prior to the Act being amended in 2019, UAPA was only aimed at organisations or groups which indulged in unlawful activities. Even the 2004 amendment, which included terrorist activities within the purview of unlawful activities, did not target individuals.

However, in defining terrorist activities the amendment used very broad language and applies to such offences which are considered to be committed to ‘strike terror’ in the minds of people. However, the term ‘strike terror’ has not been explained or defined in the Act, thus making it vulnerable to misinterpretation.

This mischief has been further propagated by the 2019 amendment which empowers the government to designate individuals as 'terrorists'. The Home Minister, while introducing the amendment, unwittingly revealed that this was also aimed at 'urban naxals', which is a term popularised by the right-wing to target activists and individuals who are perceived to be anti-establishment.

Activists and students are being arrested under these provisions for their participation in anti-CAA protests to stigmatise them and burden them with the procedural tyranny of the UAPA. This helps in creating a narrative where dissent is labeled as 'anti-national'.

The Act is also being used against journalists in Kashmir. Is there a link between the UAPA and civil liberties?

The amendments of 2019 also enhance the offences under UAPA to a nature of 'federal crime' because the National Investigation Agency (NIA) has been empowered to investigate and prosecute such offences in cases where it deems necessary. As mentioned above, now that individuals can also be prosecuted under UAPA, it is being exploited to curb dissent and reporting on Kashmir. With amendments over time, and breadth of applicability of its penal provisions, UAPA is definitely a threat to civil liberties in Kashmir or elsewhere in India.

Given that these are grave charges and require legal urgency, how does the lockdown impact the need and availability of legal help—both in terms of seeking and providing it?

The lockdown has definitely caused problems in access to courts and legal representation, but to my knowledge courts have been functioning throughout to hear urgent bail pleas and other applications.

What is the way forward—challenge to the amendment?

The amendment has already been challenged by way of a writ petition before the Supreme Court in 2019 (Sajal Awasthi vs Union of India) in which notice has been issued. The petition is still pending adjudication and no stay has been granted on the operation of the amendments.