On the Supreme Court’s Verdict on the Arrest of 5 Activists under the UAPA

PUDR welcomes the Supreme Court’s order on the petition filed by Prof. Romila Thapar and others for extending protection from custody to the five activists- Gautam Navlakha, Varavara Rao, Vernon Gonsalves, Sudha Bhardwaj and Arun Ferreira- arrested a month ago by the Maharashtra Police. A three-judge bench in its 2:1 majority judgment, even in refusing the demand of the petitioners for constituting a Special Investigating Team, recognised the damage to individuals that can be caused by such arbitrary arrests and has enabled every possible challenge to this power before the appropriate courts to secure personal liberty of the five activists. An inspiring and detailed assertion of the rights to personal liberty and to political opinion in the judgment delivered by Justice Chandrachud, in his dissent, is heartening.

The two differing opinions in the judgment, have given occasion to PUDR to reiterate the obvious flaws and possibilities of misuse within the UAPA, especially the notion of ‘association’ which forms an important source of arbitrariness under the law. The UAPA blurs all distinctions for the causes for association and overlooks the fact that association may arise from multiple needs involving the family or the community, religious, cultural or economic. Equally, associations may arise from institutions of democracy, elected representatives, political parties, bureaucracies of all kinds—from revenue and land to forest and water, courts and tribunals at various levels—as well as civil society organisations concerned with civil, political and economic rights or those promoting people’s welfare through provision of access to basic necessities through community efforts or charity. The UAPA condemns all such association as criminal based on political prejudices of governments in power. Instances abound of threats to and criminal prosecution of family members, community representatives, lawyers and other advocates, civil rights activists and those providing welfare.

For those charged in this manner, the UAPA gives virtually unlimited power to the police to arrest and keep people in jail for long periods. Provision for bail is restricted to the extent of either being non-existent or is extremely difficult to avail, which has ensured that all those accused rot in jails endlessly, sometimes for many years, even to be finally acquitted and declared innocent by the courts. Furthermore, the application of UAPA works as a character-assassination, condemning the accused even before investigation has begun. Selective statements by the police, even more selective anonymous releases to media houses, high-pitched accusations masquerading as facts, leading to custody remand orders by magistrates without even reading the charges or the basis to permit arrest has all become commonplace in the world of UAPA. The circumstances of the present case have sharply brought out the abuse that the vesting of such extreme power permits and the same is on record with the Supreme Court and the High Courts at Delhi and Chandigarh.

Besides lawyers, researchers and political activists, those working in the field of safeguarding human rights are particularly prone to be victims of the abuse of law. They have to necessarily engage with people, organisations and groups that hold opinions, which are at odds with the state or with the governments in power. In such a context, the personal whim of a police officer or the desire for vendetta for a politician or removing an irritant for a government can easily lead to registration of cases where association is criminalised and the innocent are framed. Therefore, an immediate stop is required to the use of this expansive view of association given in the UAPA, to the provisions to keep accused endlessly in prisons and to halt the arbitrary sway of the powerful.

PUDR shall continue to strive for the repeal of laws such as the UAPA and campaign against it through the courts, the legislatures and society at large.

Shahana Bhattacharya, Sharmila Purkayastha

Secretaries, PUDR

1st October 2018