Party leader Abhishek Manu Singhvi, who led the arguments in SC in favour of the activists, had defended the amendments to the UAPA in 2008.

New Delhi: The Congress party has come out strongly against the crackdown on human rights activists under the Unlawful Activities (Prevention) Act, the anti-terror law that was introduced and strengthened by Congress governments in the past.

Congress president Rahul Gandhi posted a tweet hitting out at the RSS (and by extension, the BJP and the government) for the arrests by the Pune Police, but didn’t mention the law.

There is only place for one NGO in India and it's called the RSS. Shut down all other NGOs. Jail all activists and shoot those that complain. Welcome to the new India. #BhimaKoregaon — Rahul Gandhi (@RahulGandhi) August 28, 2018

In 2008, the Manmohan Singh government had enacted two key pieces of anti-terror legislation: Apart from amending the UAPA to give it more teeth, it had also passed the National Investigation Agency Act to combat terror in the wake of the Mumbai attacks.

The fact is that Congress leader Abhishek Manu Singhvi, who led the arguments in the Supreme Court Wednesday in favour of the five arrested activists, had defended the amendments to the UAPA in 2008.

In 2012, then union home minister Sushil Kumar Shinde had assured the Lok Sabha that the UAPA will not be “abused”, and the bill was passed without any debate.

“We are trying to bring more clarity in the existing legal regime. We are trying to identify deficiencies, if any, and to remove them in this legislation,” he had said.

“We would make new provisions more clear so that the police will also not have unlimited power. We would try to establish proper coordination with magisterial powers. This law will not be used against any particular section of people. The law of India is enforced uniformly for all, be they Hindu, Muslims, Jat or Christians.”

Despite the assurance, civil rights organisation People’s Union for Civil Liberties (PUCL), whose current general secretary is Sudha Bharadwaj, one of the five activists arrested, had condemned the passage of the bill, claiming it had the potential to be misused against activists.

UAPA amendments

In 2004, in one of its first major policy decisions, the UPA-1 government had repealed the Prevention of Terrorism Act (POTA), 2002, enacted by Atal Bihari Vajpayee’s BJP-led NDA government. The NDA government had used POTA extensively in cases related to Naxalism in Jharkhand and Chhattisgarh.

The UPA government later amended the UAPA to fill the void that repealing POTA had left.

According to experts, the 2008 amendments to the UAPA virtually brought back POTA, a law the Congress had claimed was draconian.

Also read: Bhima-Koregaon arrests: ‘Activists pushed Maoism, sought arms, waged war against state’

The amendments extended the ‘detention without bail’ period from 90 days to 180 days, extended police custody from a maximum of 15 days to 30, and made every offence under the act a cognisable offence, which meant arrests could be made without a warrant.

It also introduced a provision under Section 43E that the accused will be presumed to have committed an offence for which he has been arrested if arms or explosives have been found in his house along with evidence suggesting his involvement.

The BJP, then in opposition, had pledged its support to both the laws and called for stronger laws since it was advocating a tougher stance on terror. In the parliamentary debate before the laws were passed, Arun Jaitley had said the bills were only “half a step”.

The BJP and the Congress also traded charges to take credit for bringing in the “stronger” law. While BJP said the law heavily borrowed from POTA, Congress claimed that POTA was borrowed from TADA, which the party had enacted.

In 2012, the Congress-led government once again amended the UAPA to expand the definition of a terrorist under the act by changing definition of a “person” to include “an association of persons or a body of individuals”. The amendment ensures guilt by association.

Even the Left, which criticised the arrest of activists, had resorted to the same strategy when the party was in power in West Bengal. It had said that activists demanding the release of Maoist-backed tribal leader Chhatradhar Mahato would also be punished under the act.

How UAPA has been used

– In 2014, 975 cases of UAPA were registered in the country. A staggering 630 came from Manipur — a state that accounts for less than 0.2 per cent of India’s population.

– Last year, a trial court in Gadchiroli convicted Delhi University professor G.N. Saibaba for “idolising the Naxalbari uprising of 1967” which the prosecution “proved” through contents found on his laptop. The court had sentenced Saibaba to life imprisonment.

– In 2010, award-winning journalist Shahina K.K. was booked by the Karnataka police while she was investigating the framing of Muslims by the state police in cases of terror.

– In 2008, the Karnataka police had also booked 17 Muslim youth under the UAPA, alleging they had links with the banned Students’ Islamic Movement of India, after they were found with “jihadi literature”. After seven years in jail, a Hubli court acquitted them all, finding that the “literature” was in fact copies of the Quran.

– In 2007, civil rights activist Binayak Sen was booked under the UAPA and was later convicted along with Narayan Sanyal, a member of the banned Communist Party of India (Maoist). Sen, a noted physician who worked in tribal areas for decades, was convicted for supporting the Maoists by ferrying three letters purportedly written by Sanyal.

– Advocate Prashant Bhushan tweeted that Arun Ferreira, one of the five activists arrested Tuesday, was also arrested under the UAPA in 2007, when the Congress-led government was in power. Although Ferreira was acquitted later, he spent five years in jail.

– Also in 2007, Vernon Gonsalves, another activist arrested Tuesday, had been arrested by the Maharashtra Anti-Terrorism Squad under the UAPA. The police had alleged that Gonsalves was found in possession of huge amounts of explosives, but a Mumbai trial court acquitted him in 17 cases in 2014.

Also read: How trial & high courts respond to activists’ arrests is a test of independent judiciary

Not strong enough

Despite the criticism against the UAPA, experts say it is an inadequate law to deal with terrorism.

“Other countries, even Western democracies, have far more stringent laws to deal with terrorism and give sweeping powers to police. In my view, even TADA and POTA were not strong enough,” said Ajai Sahni, executive director at the Institute of Conflict Management.

However, Sahni quickly added that the problem lies in how the legal processes are abused by the government.

“The activists arrested could have just as well been arrested for sedition or any such serious offence and not under UAPA. The issue here is how government chooses to apply the legal process to intimidate and punish just by putting someone through trial,” he said.

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