In recent years, the Unlawful Activities (Prevention) Act (UAPA) has been under increasing criticism and controversy. While it was intended to combat terrorism and ensure national security, its execution and repercussions have raised worries about the erosion of civil freedoms and the suppression of dissent. That is why there is a need for careful examination of the law so that it has its claws harshly over unlawful activities and, simultaneously, does not tamper with human rights violations!

Multiple instances hint how UAPA, which was once made to counter terrorism and safeguard the national interest, have been draconian and slashing the civil liberties of the nation’s citizens!

Case 1- Newsclick founder Prabir Purkayastha.

The recent case is the release of Newsclick founder Prabir Purkayastha, a 74-year-old journalist, whose arrest has been declared ‘invalid’ by the Supreme Court. The apex court of India on May 15 granted the release of Mr Purkayastha in a case involving the UAPA. 

Last year, the Special Cell of Delhi Police captured NewsClick founder Prabir Purkayastha, citing an attempt to “disrupt the sovereignty of India” through his news service, supposedly sponsored by China. The charges against him were that the news site he owns received money to propagate pro-China propaganda in India. 

The apex court of the nation ruled that Mr Purkayastha’s arrest was invalid under the eyes of the law’. At first, it may sound good that the person is being freed from the prison. However, when you dive deep, you will realise how this arrest made under UAPA, which is now declared invalid in the eyes of the law’ hints at the statement about violation of the human rights and erosion of the civil liberties of the Mr Purkayastha. 

Why did the SC say that the arrest was invalid under the eyes of the law’?

As per the arrest memo, Mr Purkayastha was arrested on 03.10.23 at 5.45 p.m. by invoking draconian UAPA provisions on the ground that he had allegedly obtained funds through Chinese entities to spread pro-China propaganda. Also, the police refused Mr. Purkayastha’s request to give him a copy of the FIR. He received a copy of the FIR only after a Sessions Judge ordered him to police custody at 6 a.m. on October 4, 2023. The senior journalist’s lawyer, advocate Arshdeep Khurana, was told of the grounds for arrest on October 5, 24 hours after his client was remanded in police custody.

Violation of ‘Right to be informed’.

A bench of Justices B.R. Gavai and Sandeep Mehta noted that neither Mr Purkayastha nor his appointed lawyer were given the grounds for his arrest in writing, which is “sacrosanct and cannot be infringed under any circumstances.” At that time, the law officer for Delhi Police (who arrested Mr Purkayastha) claimed that the UAPA required the police to just “inform” the accused of the ‘reasons for arrest’ rather than providing them in writing to him. This verdict stresses the importance of law enforcement authorities following appropriate procedure and due process, particularly in tough UAPA instances where the accused bears the reverse burden of evidence. This makes securing bail exceedingly difficult in certain circumstances.

During the proceedings, senior advocate Kapil Sibal, appearing on behalf of Mr Purkayastha, claimed that the FIR was not made available in the public domain, nor was a copy provided to him until his arrest and remand, which violated the fundamental right guaranteed by Article 22(1) of the constitution. Furthermore, the Court was informed that on the morning of 04.10.23, Mr Purkayastha was brought before the remand judge at his apartment without notifying his authorised lawyer, Mr Arshdeep Khurana. He was instead represented by a legal assistance lawyer whom he had never worked with before.

Justice Mehta said there was no “rhyme or reason” for not sending the remand application to Mr Khurana ahead of the early morning court hearing on October 4. The police team chose to inform Mr Khurana through WhatsApp about the remand order, which was also an hour after the hearing. In summary, the Supreme Court determined that Mr Purkayastha was left heavily handicapped when his personal liberty was dangling by a thread on October 4 morning.

The right to be informed about the grounds of arrest stems from Article 22(1) of the Constitution (an arrested person shall be informed of the grounds of arrest and allowed to consult a lawyer of his or her choice), and any violation of this fundamental right would invalidate the arrest and remand process. The mere fact that a chargesheet was filed in the case does not justify the illegality committed during the arrest and initial remand to police custody.

Violation of the law. 

Not only this arrest violated the rights of the individual, but also violates the rules of Indian legal system. How? Justifies the statement below by  Justice Mehta. 

Justice Mehta concluded in a scathing judgement that “This entire exercise was carried out in a clandestine manner and was nothing but an obvious effort to circumvent due process of law; to lock the accused to police custody without informing the man the grounds on which he has been arrested; to deprive the charged of the opportunity to use the services of the legal practitioner of his preference so as to oppose the request for police custody remand, seek bail, and also to mislead the court. When a government harms a person without following the exact course of the law, this represents a breach of due process, which violates the principle of law.

Now, what were the probable grounds on which the investigative agencies believed that Mr Purkayastha was spreading pro-China Propaganda?

The investor in Newsclick- The sequence of moves was presumably triggered by questions about the objectives of a NewsClick investor and allegations of his close ties to the Chinese government. However, the investigating authorities did not point to a single piece on the website that constituted illegal propaganda against India. 

Based on an article in The New York Times titled ‘A Global Web of Chinese Propaganda Leads to a U.S. Tech Mogul‘, the government authorities launched a deliberate campaign of vilification and deception against the website. Their actions appear motivated by a desire to demonise a media organisation, therefore suppressing critical journalism. No government can or should pursue journalists or any individual purely on suspicion of funding, undermining the Constitution’s protection of free expression. 

One paragraph in the story said, “Corporate documents reveal that Mr Singham’s network supported NewsClick, a news website that ‘sprinkled its coverage’ with talking points from the Chinese government,”. According to one video, “the working classes are still inspired by China’s history,” this video clearly shows how China’s policies can be an example of learning for other countries. Is it a crime that any news website takes the example of another nation that may or may not be a good friend of the source nation and explains how their policies have helped in growing the nation? 

Justice Tushar Rao Gedela of the Delhi High Court noted in his verdict on October 13, 2023, that the acts accused in the NewsClick case had a direct influence on “the stability, integrity, and sovereignty of the country” and have serious national security ramifications. He also repeated Solicitor General Tushar Mehta’s claim that the email exchanges between Mr Purkayastha and other organisations were an attempt to portray Jammu and Kashmir and Arunachal Pradesh as “disputed territories.”

However, given the strict terms of the UAPA, the Court emphasised that the investigating agencies should now establish grounds for arrest in writing after redacting what they perceive to be “sensitive material.”

Who will take the responsibility that for more than half a year, a person was kept in jail for something that is now invalid under the eyes of the law’?

The arrest date is 03.10.23, and the release date is 15.05.24 – A span of 7+ months.

Suppose his custody was illegal and his arrest was not in accordance with the law. Who would compensate him for such “arbitrary” and “illegal” arrests, wasting 7 months of his life, barring 7 months from his civil liberty, barring 7 months from his journalistic duties and the pain the family has felt for more than half of a year?

The Supreme Court stated that its decision was not a reflection on the merits of the case against Mr. Purkayastha. As a result, whether the septuagenarian is likely to be detained again or not is not defined, as no conclusions on the merits of the case were reached. As a result, everyone who commits an offence should face charges. However, the procedure should not contradict legal principles, and investigative agencies do not have the authority to violate someone’s rights in the nation.

This is not only one case. As mentioned at the start of the article, there have multiple cases in the past that have attracted criticisms from many intellectuals that the act UAPA punishes more the innocent individuals, than the actual criminals.

Case 2 – Another case is the Bhima-Koregaon one.

Several public intellectuals, human rights advocates, and civil society activists were imprisoned for years after being prosecuted under the UAPA in the Bhima-Koregaon conspiracy case. The case was first investigated by state police in the BJP-ruled state of Maharashtra, but shortly after an opposition administration assumed control of the state, the Modi government handed over the inquiry to the NIA. This case again has segments that justify that inappropriate arrests under draconian UAPA erode the civil liberties of individuals. The custodial death of father Stan Swamy in 2021, an accused in the Bhima-Koregaon case, attracted enough criticism from many. 

In 2021, following Swamy’s death, United Nations Human Rights Chief Michelle Bachelet asked the Indian government to free all 15 co-accused in the Bhima Koregaon case pending trial, expressing worry about the death of 84-year-old Jesuit priest and tribal activist Stan Swamy in custody. They called on the Indian government to guarantee that “no one is imprisoned for exercising their fundamental rights to freedom of expression, peaceful assembly, and association.” intellectuals have argued that rampant misuse of such stringent laws like UAPA and keeping suspects in custody without charging them, and allowing the courts to hold them without bail, hints to ‘shrinking of civic space in India’.

Furthermore, Arsenal Consulting, a US-based digital forensics firm, conducted an independent investigation that called the Pune Police chargesheet into question. This investigation revealed that individuals’ laptops, which reportedly housed the majority of the damning evidence, were hacked during a 22-month period, with 52 files placed to implicate the activists. 

Furthermore, the inquiry found no evidence to show that those persons were aware of the incriminating content on their laptops. The analysis determined that all of the co-defendants were targeted in the same manner. It is unsurprising that the prosecution’s broad accusations in this instance, failed to withstand judicial scrutiny. There have also been claims that some of the supposed evidence was remotely planted on the accused’s laptops. The moment has come for a thorough examination of the merits of the entire case.

Though some of the accused activists have finally been granted bail, however, charges have not been framed even five years after their arrests, implying that such accusations, until proven, and the act of detaining the accused in jail erodes the civil liberties of the individuals. When no charges can be framed, how can they be kept in jail, compromising their individual freedom?

Case 3- The heartbreaking case of GN Saibaba.

For more than a decade, G.N. Saibaba, a wheelchair-bound former Delhi University professor, “yearned for justice.” Following his detention under the UAPA for alleged Maoist affiliations, many courts denied his several pleas for emergency and medical release. On March 5, this year, the Bombay High Court’s Nagpur Bench acquitted him and five others, stating that the prosecution had failed to establish the case beyond reasonable doubt. While acquitting these individuals in March 2024, the High Court bench ripped into the state’s case for its lack of technical correctness and questionable evidence, labelling the trial court’s decision a “failure of justice.”

When the Nagpur Bench acquitted Saibaba on March 5 this year, it held that downloading communist or Naxal material from the Internet or being a supporter of the ideology could not be considered an offence under the UAPA. “There is no additional material to draw the charge of conspiracy, save from vague claims that they collaborated to conduct war against the government or support weapons battle,” the court stated. It further said that “the trial held notwithstanding breaches of required requirements of the legislation UAPA constitutes a failure of justice.”

It is sad that a person like Ram Rahim, against whom heinous accusations have been proved is getting parole, a person like Brij Bhushan Sharan Singh is walking free, against whom charges have been formed, but a person with 90% disability have been tortured behind bars for almost a decade just for intellectual pursuits, which were mistaken as an attempt of committing a crime! 

Why does this draconian UAPA need to analysed carefully in the present context?

These are not only the few cases mentioned above. There are many allegations that came under light that how the investigating agencies are misusing the powers of UAPA on the pretext of something else. The arrest of Indian activist Umar Khalid under UAPA has also drawn criticism from many. The arrest of Mr Purkayastha also hinted that people who are against the governmental policies and protest against the ruling government are more at scanner to be caught under UAPA so that they lose their right to get bail. 

However, this was not the actual purpose of enacting the laws like UAPA. They were formed to provide safe barricades to the nation; however if they are creating thorny bushes for the citizens of the nation, without proving them guilty, then these laws need to carefully analysed and reformed, so that the guilty gets the punishment and innocent gets the bail, at the earliest.

The conclusion, to date, is in the case of Mr Purkayastha.

The SC said that they are not commenting on the charges brought against Mr Purkayastha; however, they are focusing on the need for justified actions by investigating agencies, which are lased with gigantic powers under UAPA. As a result, the septuagenarian is likely to be detained again, as no conclusions on the merits of the case were reached. 

Inventiva, in this article, neither comments on the person arrested nor advocates anything about the alleged claims that were made against the news agency. However, after watching numerous instances that show how people have suffered under UAPA, they were given bail after a very long time (in cases ranging for a decade), with a lack of justified shreds of evidence, have to go through a series of trauma, when they are put behind bars. It violates the law of Indian democracy that ‘everyone is equal before the law’ and invalidates the phrase “innocent until proven guilty”, which is the presumption of the legal system. 

The bottom line.

A individual spends three to four years, or even a decade, in jail before being acquitted because the prosecution failed to show his guilt. This is now happening in a large number of situations. According to G. Haragopal, a human rights activist and retired professor from the University of Hyderabad, almost 97% of the arrests were conducted without any proof under the UAPA cases. According to him, UAPA allows a person to be arrested without proof, which is anti-democratic. In many cases, the trial didn’t start until many years after the arrest, eroding the civil liberties of the individuals.

Speaking to a news outlet, Prof. Haragopal, who was once booked under the UAPA, stated that the laws should be democratic and civilised, but not repressive. Previously, criticising governments was deemed sedition. However, now, even commenting on national issues is now considered sedition.

This is wrong. People have the right to protest for the acts of the government if they feel they are inappropriate. Even the country’s Supreme Court Chief Justice referred to dissent as the “safety valve of democracy.” Justice Chandrachud stated that restricting criticism and instilling fear in individuals go beyond the violation of personal liberty and adherence to fundamental norms.

Therefore, as the Supreme Court asserts, investigative agencies should follow due process of law, and the civil liberties of the citizens shouldn’t also be harmed, as seen in the above cases. We urge the government to rectify the law thoroughly so that the people who are harming the sovereignty of the nation should be duly punished, and the people innocent should not be harmed by eroding their civil liberties.