The Unlawful Activities (Prevention) Act, 1937 (UAPA) is India’s primary anti-terrorism legislation that is widely used by the government as a political tool to authorise rampant arbitrary arrests of any dissenter, protestor or social activist whose opinion is not in congruence with the ideological aspirations of the government. The illegality of such arbitrary arrests is only matched by the unconstitutionality of the protracted pre-trial incarcerations which accompany them. This potent illegality and unconstitutionality stem from the fact that the UAPA is devoid of any constitutional protection or human rights framework. In a criminal trial under UAPA, the presumption of innocence is extinguished, the fundamental right to fair trial, just hearing, and speedy justice is suspended, the burden of proof is reversed and all the cardinal evidentiary requirements and criminal procedure laws are heavily watered down.
Owing to such expropriation of the rights from the trial framework, it is tempting to argue that such trials take place in what has been called the “zone of anomie” by Giorgio Agamben, where there is a withdrawal of law from the system and an island of lawlessness is created. However, the quest to locate a normative theoretical framework which could dexterously explain the actions of the state will only be completed, once its functionality is analyzed through the lens of what Nasser Hussain has called “hyperlegality”. This concept, in stark contradistinction to the zone of anomie, states that in modern emergencies, there is not a lack of law, but rather a proliferation of laws and technicalities that are executed through two actors: (1) Classification of Persons and (2) Creation of Special Venues in law.
In the Indian context, the retribution to dissenters and activists begin via this very classification of persons into categories like “anti-nationals”, “urban-naxals” and “Hindu-haters” that is subsequently fed into the national news narrative with the purpose of delegitimizing their protest/dissent. Such classifications are often tactically routed in intersectionality of caste, religious minority, gender and ideological inclinations. The need to create this classification is such, that UAPA was notoriously amended in 2019 to include within the powers of the government, the power to label even individuals as “terrorists”, something that was earlier reserved for application only on organizations. Notably, this categorization of an individual as terrorist is not executed post a judicial hearing or legal scrutinization, but is done on executive whims.
In a constitutional democracy, such branding of a citizenry attracts the scrutiny of the constitutional courts and therefore to bypass such scrutinization, Hussain argues, creation of special venues in law is done. In the Indian context, this happens by creating an entirely new architecture of law – the UAPA Tribunals. A person accused under the UAPA is now tried not by a constitutional court, but by a UAPA Tribunal, which empowers the state to strip the accused of his/her rights and liberties as it is the government itself that dictates everything from the special rules under which such tribunals would function to the composition of cherry-picked judges that would adjudicate the cases. These rules, make the protections of due process, fair trial, natural justice and human rights wither away and creates an isolated ecosystem of adjudication that reflects a high degree of executive deference.
UAPA, by making the definition of “unlawful activity” fluid, allows the government to designate any action/activity as unlawful and subsequently refuse to publish details of it under the garb of “public interest”. This is somewhat represented in the structure of the tribunal. For example, the number of judges presiding over such matters is kept to a minimum of one, so as to avoid any dissenting opinions. Furthermore, the act allows the government to seize securities and currency from the people declared part of unlawful association but it remains dead silent over the procedure/nature of inquiry that needs to be conducted to reach this conclusion.
As Hussain argued, the classification of people needs to be followed by proliferation of laws and technicalities. In the Indian context, this requirement manifests itself through the abundance of authorities that the act creates for the purpose of fabricating technical and jurisdictional barriers for the people seeking relief under the act. For instance – an application against the notification given under section 3 has to be made to the central government, whilst an application for the purposes of section 36(4) needs to be made to the review committee, and an application against the prohibitory order under section 7(1) has to be made to the district judge. An application for seeking permission with respect to section 8 has to be made to the district magistrate and obviously the authority for deciding the viability of the notification under section 3 remains the UAPA tribunal. This complex web of authorities is used to make the process of relief overly-technical and exasperating so that the accused could be deliberately kept in jails for longer periods without any judicial relief. It should also be noted that according to National Crime Records Bureau, only 33% of accused are actually found guilty by the tribunal and the rest are just incarcerated for protracted periods without any trial or possibility of bail, as the act makes the securing of bail in UAPA cases an impossibility by making it dependent upon the opinion of the prosecutor itself.
Vague charges are used to accuse protestors of anti-national activities and evidence is presented in sealed envelopes in the tribunals without affording the opportunity to the accused to even see the evidence, leave alone allowing him/her to refute it. Moreover, such trials are artificially characterized as “civil” adjudication rather than “criminal” trial so that the accused could be sentenced even on the basis of his forcibly extracted “confessions”.
In trials under this UAPA framework, it is the state itself that initiates the process, notifies the individual as terrorist, supervises the adjudication, constitutes the tribunals, appoints the judges, dominates the review committee and above all, frames rules to govern the mentioned processes. Unfettered discretion, executive supremacy and a pliant tribunal system are the most fundamental predicaments with the current regime of UAPA adjudication and if the vibrant democratic spirit of the country is to be saved, the Indian judiciary must step up to uphold the rights of its dissenters and protestors as the legislature is unlikely to intervene for the purpose of relinquishment of such unbridled powers.