In the current political process, there are no mechanisms for the people to challenge the arbitrary arrests under legislation such as the Sedition law and UAPA.
Photo: Protests against CAA
A few days ago, three student activists who were arrested under UAPA more than a year back were released after the Delhi High Court granted them bail. But thousands of activists who have criticised the government’s policies and actions on several issues continue to languish behind bars.
There is a specific reason for such a large number of arrests. India is a country where there is vast discontent with the existing system of inequalities, lack of opportunities and inability of the economy to cope with the demands of basic necessities. Workers are underpaid and on the brink of poverty, their families live in despair and on the brink of survival, the countryside is full of problems with agriculture in doldrums. In other parts there is a clash between traditional lives of tribal populations and the needs of industry for raw materials. In such a situation there is a major contradiction between those who are demanding a better life and those that seek to maintain the status quo. Inevitably the clash leads to a situation where any kind of voice speaking against the system needs to be crushed. This situation has become particularly bad with the all round economic crisis.
The Sedition law and various repressive laws such as UAPA have been used routinely against critics by ruling governments over the decades. But recent years have seen a large increase in such arrests. Data from the National Crime Records Bureau’s Crime in India statistics for 2019 confirm these observations. Ninety-three cases of sedition were filed in 2019, a 165% jump from 35 in 2016. In 2019, 1,226 UAPA cases were filed, a 33% increase from 2016.
According to the data, in 2019, the highest number of cases were registered in Manipur at 306. It was followed by Tamil Nadu (270), Jammu and Kashmir (255), Jharkhand (105) and Assam (87). However, the highest number of arrests made under the UAPA in 2019 were in Uttar Pradesh, with 498. This was followed by Manipur (386), Tamil Nadu (308), Jammu and Kashmir (227) and Jharkhand (202).
There has been a 72% increase in the number of arrests made under UAPA in 2019 compared to those made in 2015, according to data provided by the Ministry of Home Affairs (MHA) in the Lok Sabha.
UAPA permits detention without charge for up to 180 days. It has become a convenient tool to silence dissidents. Such long periods of pre-trial detention circumvent safeguards in the criminal justice system such as requirement of evidence and burden of proof on the part of the authority. It permits the state to punish those whom it wants to, regardless of whether they are even remotely committed with any crime, without proving any allegations. Recent amendments to UAPA in 2019 have given the Union government the power to notify an individual as a “terrorist” without any trial. Moreover, police custody under UAPA can also be extended to 30 days, increasing the possibility of torture to extract “confessions” and custodial violence.
The fact that authorities are allowed to file cases indiscriminately is apparent from the low conviction rates. In 2019, in 9% of the sedition cases (pending from previous years and filed in 2019), the police closed the case because of insufficient evidence or because the accused was untraceable! 11% of UAPA cases (pending from previous years and filed in 2019 in the same year) were closed for the same reason. Even charge-sheets were filed in only 17% of the sedition cases and 9% of the UAPA cases – meaning that only in these low percentage of cases did the authorities manage to gather any evidence that could be presented to courts. The conviction rate in sedition cases in 2019 was 3.3%. In a reply by the government in the Lok Sabha it was revealed that only 2.2% of cases registered under the UAPA between 2016-2019 ended in convictions..
But low conviction rates are no reason to believe that those arrested get justice. Acquittal is a long and expensive process and most activists do not have the wherewithal to muster legal support and the bail amount. The process of arrest and detention is itself a big punishment and that is the threat that the government has conveyed to those who have dared to raise their dissent.
Despite the criticism of sedition and UAPA, there are no signs that the government is planning to repeal or curtail them. An increase in the number of cases filed under these provisions has a chilling effect on any form of dissent, a trend that does not look like it will abate soon.
The courts have interpreted these laws in various instances and cautioned the government to use them sparingly but have always upheld the necessity for such laws. The stand of the courts reflects the discussions in the Constituent Assembly as well as the Constitutional provisions for using preventive detention as a right by the authority. Herein lies the contradiction between the right against preventive detention of citizens versus the right of authority to the arbitrary use of such laws to quell dissent. If the authority in power is not accountable to the people, is not constrained by law to provide evidence for arrests and submit itself to the principle of ‘burden of proof’ such laws will remain in statute books. Even if such a law is temporarily removed by governments faced with mass protests, the law will be introduced again in another name, since such laws are totally within the ambit of constitutional provisions to suspend fundamental rights by the authority using the ‘reasonable restrictions’ clause, without being constrained to provide evidence and proof. The declaration of the emergency in 1975 itself was one such act where the authority acted arbitrarily and without accountability, but completely in compliance with the Constitution.
In the current political process, there are no mechanisms for the people to challenge the arbitrary use of such laws. They do not have the right to initiate legislation to protect their rights and interests or to annul legislation which are contrary to their interests. This situation has to change. The authority cannot be the sole sovereign power to decide by itself what is in the interests of the country. It has no moral right to enact and implement laws which give it untrammeled power and are not subject to principles of natural law. Such laws and the principles by which they draw their legitimacy have become anachronistic in modern society which considers that rights of human beings are universal and inviolable, and that sovereignty should reside in the hands of the people.