Sharjeel Imam, a former JNU student, was arrested by the police on account of instigating violence and disruption of peace, during the anti-CAA protests that took place near the Jamia Milia Islamia University, on 28 January 2020. He was booked under several charges under the India Penal Code, 1860, and an investigation was instituted against him under the Unlawful Activities (Prevention) Act, 1967 (UAPA). He has been, since his arrest, fighting to obtain bail, and also against the investigation timeline that has expired.
Sharjeel is just one example, amongst various others, who have been charged under the draconian UAPA, as a ‘terrorist’ and imprisoned without even a trial. The UAPA has been recently amended by the Government. The amendment brought with it, a higher degree of control with the executive, in charging not just organizations, but individuals as well, as a terrorist under the Act. There have been protests and petitions filed against the amendment because it now gives an opportunity to the authorities to arrest any person showing dissent (in a lawful manner), against the Government.
The Unlawful Activities (Prevention) Act, 1967 (UAPA)
The UAPA was passed by the Government of India, to curb terrorism in the country, by identifying potential terrorist groups/organization, and preventing unlawful activities associated with them, and maintaining the sovereignty and integrity of the State.
The Act has been recently amended through the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA, 2019). The amendment was essentially brought to expand the definition of a "terrorist" under the Act. It was expanded to include "individuals" under Sections 35 and 36 of the Act. These sections pertain to the amendment of the Schedule with the list of terrorist organizations, as well as the Government's power to denotify any of these organizations.
UAPA 2019 Amendment
The UAPA, 2019 further widened the powers of the concerned authorities (officers with the rank of inspector) to investigate cases under Section 43 of the UAPA. There is also a provision for the constitution of a 'Review Committee' that has the power to 'denotify’ individuals earlier notified as a terrorist. While the authorities have the power to categorize individuals as ‘terrorists’, they do not have the power to convict or penalize them, under the amendment.
Another important consideration while analyzing the amendment is that an individual, who has been categorized as a ‘terrorist’, will not have recourse with the judiciary, for appealing his status as a ‘terrorist’. Only the concerned authorities under the UAPA can denotify such a status of the individual.
Why is the Amendment raising concerns?
This amendment has been considered by many to take away the basic human rights from individuals charged under the Act, thus violating several Human Rights doctrines. There have been several objections put forward in this regard:-
- The primary objection lies in the power of the authorities to categorize an individual as a terrorist.
- The non-judicial recourse to such a status means that the most important principle of law “innocent until proven guilty” is denied to the individual.
- It is also contended by many that, the amendment only tries to repress terrorism and not combat it. While the authorities can detain an individual on account of terrorism, they cannot convict or penalize them.
- The Government has been provided with "unfettered power", to declare an individual as a terrorist. There are no prescribed guidelines provided for such characterization in the amendment.
Therefore, several petitions have been filed before the Hon’ble Supreme Court to declare the amendment as unconstitutional. A PIL has been filed SajalAwasthi on the grounds that the amendment violates Articles 14, 19, and 21, of the Indian Constitution. Another petition has been filed by Association for Protection of Civil Rights (APCR), on the ground that providing the Government with such an unfettered and unbound power of discretion, to classify an individual as a ‘terrorist’, without any prescribed guidelines, is “antithesis to Article 14".
The Sharjeel Imam Case
Sharjeel Imam has been in police custody since 28 January 2020. An investigation was instituted against him under Section 43D of the UAPA. The provision regarding investigation provides a statutory period of 90 days to the concerned authorities for completing their investigation. This statutory period for Imam’s investigation was concluded on 27 April 2020. However, after detaining him for 10 more weeks, the Delhi High Court has now allowed for the extension of his investigation probe. Here is a summary of what transpired in his case
Imam had filed a plea challenging the Trial Court’s order dated 25 June 2020 on the extension of his probe by 3 months, beyond the statutory limit. The charges under which Imam was arrested initially, were on the counts of Section 124A (sedition), Section 153 A (promoting enmity between classes), and Section 505 (statements conducing to public mischief) of the Indian Penal Code, 1860.
On 28 January 2020, Imam was arrested from Jehanabad, Bihar, and imprisoned in the Guwahati prison. When Imam sought default bail after the statutory period for probe had ended, on those grounds and the extension of the probe, the bail plea was dismissed by the Trial Court. Furthermore, there was no required notice given to him, as required under the law, for such extension.
The High Court was convinced with the ASG, Aman Lekhi’s contention that the intent of extension of the probe was to complete the investigation within the original timeframe. It is only when such investigation can’t be completed that, the extension of time for investigation needs happen.
UAPA is a draconian law that intends to suppress dissent in the society, by bringing amendments that provide the Government with unfetters, absolute powers to charges both individuals and organizations as 'terrorist'. The story of excessive use of the UAPA doesn't end with Imam's. Several people who showed their dissent towards the Government have faced trials under this law. The Act doesn't especially do anything to fight terrorism. It does not provide a strategic recourse towards combating terrorism in general. It only tries to suppress the act and proceed against people showing dissent towards the Government and its policies. The Act doesn't even provide a provision to contest this categorization before the judiciary, before they are imprisoned, thus taking away their right to judicial recourse.