Updated: Jul 2, 2020
New Delhi: On 14 April 2020, while India was glued to the television and radio sets to carefully catch every word of the Prime Minister’s address extending the nationwide lockdown to combat the spread of Covid-19, two persons prepared to enter a lock-up.
They were Anand Teltumbde and Gautam Navlakha, who surrendered to the National Investigation Agency (NIA) in connection with an ongoing investigation arising out of the Bhima Koregaon violence that had occurred at the start of 2018, and which has already seen the arrests of nine other persons who remain in custody.
The Bhima Koregaon clashes of January 2018, the genesis of FIR No. 4 of 2018 registered at P.S. Vishrambaug in Pune on 8 January 2018, are now alleged as being part of a sinister conspiracy between members of the proscribed Communist Party of India (Maoist) (CPI-M), of which Navlakha, Teltumbde and several other activists and critics of government policies are allegedly members.
What did this conspiracy, according to the state, seek to achieve?
The police alleged in 2018 that another “Rajiv Gandhi-like incident” was being planned: the claim generated a sizeable media-storm and seemed to justify the invocation of India’s anti-terror law—the Unlawful Activities Prevention Act (UAPA). However, precious little of this allegation appears to be present in the chargesheets that were ultimately filed in Court. Rather, the allegations now focus on the accused person’s connections with hardcore communism’s revolutionary goals. The prosecution argued during Navlakha’s anticipatory bail hearing (and activist Sudha Bharadwaj’s bail hearing) that the conspiracy aspired to “[seize] political power through armed revolution by mobilizing the masses .”
On the strength of these allegations, then, the police has alleged that all 11 persons have committed and/or conspired to commit offences such as “waging war” (Sections 121 & 121-A of the IPC), committing “unlawful” and “terrorist” acts (Sections 13, 16, 18 of the UAPA), being members of, and recruiting persons to, terrorist organisations (Sections 18B & 20 of the UAPA), and being otherwise associated with such organisations and garnering support (financial and otherwise) for their cause [Sections 17, 38, 39 & 40 of the UAPA]. As investigations are ongoing against the roles of Messrs. Navlakha & Telumbde—their custody was recently extended—there may yet be some changes in the allegations against them.
Going by the prior experience on how long UAPA cases take, any trial into the allegations is bound to take several years, and it would be remiss on my part to pre-judge the case of the prosecution at this stage while investigations are still ongoing.
However, this does not preclude a criticism of India’s premier anti-terror statute itself. In this essay, I argue that the offence provisions of the UAPA that are at the heart of the ongoing Bhima Koregaon cases are criminally overbroad, excessively vague, and nothing short of a legislative carte blanche to state-sponsored violations of fundamental rights.
Of Terrorist Acts And Conspiracies To Commit Them
Section 15 of the UAPA defines “Terrorist Acts”, which can be punished with either life in prison or a death sentence if there has been a loss of life, or punished with at least five years or life imprisonment in all other kinds of cases. Few would disagree that terrorism merits serious punishments. But at the same time, the gravity of these punishments coupled with the stigma of being labelled a “Terrorist” for life demands a high degree of care and attention in determining what can amount to a Terrorist Act.
Almost all anti-terror laws across the world require that impugned acts must be committed with a specific “intent” for them to be punished under such laws. And, at the same time, they also limit what kinds of “acts” committed with the specified intent can be punished as “Terrorist Acts”. Common layperson ideas of terrorism from across the world suggest that this intent-act combination should be reserved for serious acts of violence that are committed for advancing political or ideological goals. Section 15 of the UAPA, however, seems to pay no heed to our common-sense approach.
Besides acts that cause death, Section 15 potentially labels as terrorism acts causing injuries or damage to property without any qualifier that the injuries or damage be serious. Hypothetically, then, basic property damage stands to be called a “Terrorist Act” under the UAPA.
One way to rein in the possibility of such hypotheticals being defined as terrorism is to prescribe specific “intent” requirements. Thus, only conduct that is committed with that specific intent can be labelled as a Terrorist Act in this framework. To this end, common law countries such as the U.K., Australia, Canada, Hong Kong, South Africa require that acts be committed for the “purpose of advancing a religious, political or ideological cause”. The standard suggested by the United Nations is lower, requiring that serious violence be committed with the purpose of intimidating the public or compelling a government to do or abstain from doing any acts.
However, Section 15 of the UAPA does not require that acts be committed for advancing a particular political or ideological cause, nor is it even a prerequisite that the purpose behind any such acts must be to spread terror or coerce government policy. The provision is so loosely drafted that acts which “threaten” or are even “likely to threaten” India’s unity, integrity, sovereignty, security or economic security can be punished as terrorism.
If this were not enough, the criminal overbreadth of the UAPA, its sheer perverseness, is best illustrated by Section 18 which punishes “conspiracy, etc.”. Not only does it proscribe inciting or conspiring the commission of these vaguely defined Terrorist Acts, but Section 18 goes much further and punishes persons for conspiring in acts preparatory to commission of a Terrorist Act.
With this clause the net for manufacturing criminality is drawn so far back that almost any harmless conduct stands a chance to be labelled not only as criminal, but as terrorism.
It is, therefore, apparent that rather than a provision which reflects the seriousness of what the words “Terrorism” and “Terrorist Acts” connote, what we have instead is an overbroad provision that allows for any acts of violence against person or property to be painted as threatening or likely to threaten India’s integrity, and for it to be retrofitted as a terror crime.
Criminalising Membership & Support for Terrorist Organisations
If the punishment of committing a Terrorist Act and conspiracies to commit them illustrate the criminal overbreadth of the UAPA, the clauses punishing membership of, and support for, terror organisations exemplify the vagueness at the heart of this statute. Very often it is these offences that form the heart of a UAPA prosecution, as they are likely to become in the Bhima Koregaon cases as well.
Section 20 of the UAPA renders being a “member” of a Terrorist Organisation which is “involved” in Terrorist Acts an offence punishable with a mandatory life term. It is possible to argue that the Supreme Court’s decision in Arup Bhuyan v. State of Assam (currently under review) would act as some sort of limit to this criminalization. There, the court held that membership offences can only punish “active membership” and not a case where a person ceased to be a member much before the organisation was “involved in” the terrorist act.
But even then, how, does one identify a member? Surely all organisations won’t have membership registers to prune through in order to make that decision. If, then, the approach is a subjective one, what guides the decision to label someone a “member”, as opposed to, say, someone one who “associates” or “professes to be associated” with the Terrorist Organisation and is punishable under Section 38, or someone who is punishable under Section 39 for merely giving “support” to the Organisation? Membership carries a mandatory life term, while associating or supporting a Terrorist Organisation carries a maximum ten-year term.
However, in spite of the critical effects of these classifications upon the lives of persons, the UAPA offers no guidance to officers or judges to differentiate between the categories, and thus sanctifies an approach wherein the arbitrary choices and preferences of the authorities, rather than a democratic law, decides the fate of those who are accused.
The Erosion of a Presumption of Innocence
Broadly defined anti-terror laws such as the UAPA serve as useful tools to curb dissent and suppress the voices of those inimical to state policy. They are especially effective since almost all countries equip anti-terror laws with provisions that dilute procedural rights available to accused persons, elongated pre-trial custody and make bail harder. Such critiques have been levelled against the Bhima Koregaon prosecution too, as the main accused thus far have been human rights activists and academics. This is a constant source of concern in the application of anti-terror laws, as highlighted by the 2018 report of the UN Special Rapporteur.
Besides the danger to civil liberties, what is sometimes not forcefully addressed is how the criminalisation of otherwise harmless conduct, and the wide enforcement discretion it confers upon the police, erodes the presumption of innocence.
As I have argued in an earlier piece for Article-14, the presumption of innocence is not a concept stuck in courtrooms, but it defines our interactions as responsible members of a society. At its heart, though, are two related concepts—not only is a person presumed to be innocent but also harmless (again, I rely upon the exposition by Professors Ashworth & Zedner).
Criminal law regulates how both of these presumptions are displaced. It respects both notions by requiring that there must be a reasonable suspicion that a person committed a harmful act before their liberty can be suspended by arrest. At the same time, it requires that this idea of reasonable suspicion not be coloured simply by assumed knowledge of a person’s previous conduct. To put it simply, the law does not promote rounding up the usual suspects when a suspicious activity is reported.
Of course, this is an idealised reflection. Criminology has shown us that the enforcement of criminal law by the police continues to rely upon stereotypes and not reasonable suspicion, which in turn leads to the creation of suspect communities within societies. But whilst this normally only offends the idea of innocence, we must realise that the criminalisation of otherwise harmless conduct poses an altogether separate problem. It does not require any objectively harmful act or consequence, and allows for the repackaging of ideas as crimes. In this guise, criminal law is little more than a thinly disguised veil to brutally enforce dominant ideologies promoted by state actors. Fundamental freedoms are thus hollowed out from within.
These problems are at the heart of the UAPA which, besides creating overbroad terrorism offences that have been the focus of this essay, also punishes a similarly vague notion of “unlawful activity”; vague enough to ensnare the photojournalist Masarat Zehra for doing her job.
Let us be clear that these dangers posed by criminalisation of harmless conduct under the UAPA and other laws are not sufficiently mitigated by having safeguards such as a strict intent requirement. Thus, consider the provision that penalises attending meetings only if the person harboured a specific intent (Section 39 of the UAPA for instance). While this intent requirement will help prevent a conviction in court, it will not do much to prevent an arrest and a possible UAPA prosecution, for the police continues to get its powers from the scope of conduct that the statute proscribes.
If attending a meeting can be a crime, and you attended one, that’s that; you must now suffer the punishments of the process to get your day in court and prove the lack of any intent.
Terrorism is dastardly and presents a risk to society and community life as we know it. This demands that we take terrorism seriously, and legislate about it seriously. This essay sought to demonstrate that India’s UAPA appears to discharge neither of these burdens.
The manner in which these laws eviscerate the twin presumptions of innocence and harmlessness is most evidently on display in the prosecution of the eleven persons who today stand accused in the Bhima Koregaon case. All of them have been named and shamed in the national media as “urban naxals” and “terrorists”, labels conventionally reserved for persons who pose the greatest harm to our shared community. And we are no closer to seeing the start of a trial.
The first wave of arrests happened in June 2018, followed by further arrests in August, with all of the accused now having spent over a year in custody on various allegations of either being in possession of letters, being mentioned in suspicious correspondence, or attending/organising meetings with problematic agendas. Many more years may yet go by before a trial begins, with the police still investigating some aspects of the case. And even then, assuming there are no logistical issues to delay matters, the UAPA itself is framed in such a manner as to require the accused to establish their innocence and show that their harmless conduct of sending letters or attending meetings was really just that.
It is arguable that the risks posed by terror crimes justify having more relaxed standards for displacing the twin presumptions of innocence and harmlessness that are discussed here. But even so, surely we require serious conversations about where to draw these lines. Must there not be a higher requirement in the law before the police are allowed to trigger the UAPA where the person is only accused of objectively harmless conduct? Is it justified that the law reveals their identities and allows their names to be emblazoned as terrorists in the public imagination, stigmatising and vilifying the accused and their families in the worst way possible for years as they struggle in prison?
The Unlawful Activities Prevention Act is only the most recent of India’s anti-terror laws that have allowed for this scenario to now become established as part of our shared reality. It is the collective shame of all Indians, and I hope, someday it will also be part of our redemption song.
(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)