Sedition law is on pause, but UAPA does its work

The Supreme Court, through its order on May 11 this year, stayed Section 124A. The bench led by the then-CJI N V Ramana stated that the sedition law, enacted to prosecute freedom fighters and maintain colonial rule over the nation, has since been misused owing to its broad interpretation and it shall not be used until further orders were issued by the court.

The court’s stay of sedition proceedings appears to have had no effect on those who have additionally been accused under the inhumane and draconian Unlawful Activities (Prevention) Act (UAPA), either concurrently or otherwise. Siddique Kappan -- he has been granted bail by the Supreme Court after 800 days in prison under UAPA but he remains in jail under PMLA offences; Ashif Sultan, Umar Khalid, and others stay behind bars because sedition is just one side of the story; UAPA continues to be a tool for the State to subdue dissenting voices, as we saw in Fr. Stan Swamy’s case.

Keeping criminal trials and processes under Section 124A in abeyance, the Supreme Court stated explicitly that sedition under other parts of the law, if applicable, would only proceed provided the court in question is of the view “that no damage would be caused to the accused”.

UAPA was enacted in 1967 to deter terrorist actions and other disruptive activities. The Act’s primary goal is to combat certain illegal associations and terrorist activities. This Act gives authority to not only arrest those participating in unlawful associations but also to proclaim them to be terrorist organisations.

Concerns regarding UAPA were raised when the dismal figures of the National Crime Records Bureau were made public. Only in 2014 were UAPA crimes documented as a separate category, since there was an increase in UAPA cases under the present government. There has been a 72% increase in UAPA cases in the last five years. In the last seven years, just 4.5% of the 6,900 cases taken to trial reached the point of conclusion. Between 2014 and 2020, 95.4% of cases were still undergoing trial at the end of each year.

UAPA blatantly violates the principle of natural justice and the fundamental protection provided to citizens under the Constitution. The Act gives undue power to authorities and law enforcement under Sections 43 A&B, which allow the police to search, seize, and arrest anybody without a warrant; under Section 43D, the police can keep anyone for 30 days in police custody and 180 days in court detention without a charge sheet.

Even though there is an outrageously high pendency rate, the most draconian provision in UAPA is the one governing bail. An accused cannot be released on bail under Section 43D(5) if a prima facie case can be made against him. Even anticipatory bail under section 438 of CrPC is ineffective under UAPA. According to the bail clauses in UAPA, even the formation of a prima facie case based on police search and seizure is sufficient ground to keep someone in detention. This directly hits at the judicial doctrine of ‘bail is rule, jail is an exception’.

In NIA vs. Zahoor Ahmad Shah Watali (2019), the Supreme Court made it virtually impossible to get bail till the trial ends in a UAPA case. Watali’s judgment states that while assessing bail petitions under the UAPA, courts must assume that every accusation in the FIR is true. Furthermore, bail can now be granted only if the accused submits evidence that contradicts the prosecution’s case. In other words, an accused is guilty until proven otherwise in these cases.

Bail proceedings under UAPA have devolved into a sham. With such rigorous evidentiary requirements, it is now difficult for an accused to secure bail, and it is an instrument for the government to keep someone behind bars indefinitely. It is nothing short of a nightmare for those who have been arrested. In UAPA, the process is the punishment for the accused.

For those facing both Section 124A and UAPA accusations in the same or separate cases, the stay of Section 124A, while a significant relief as it may be, would rarely result in any liberty. Their reality is continued incarceration under UAPA. It is clear that in UAPA cases, it takes years of incarceration to acknowledge that a major violation of the accused’s fundamental rights has taken place.

Since the court has taken a step forward to consider scrapping sedition, it is time to reconsider the relevance of laws such as UAPA that give dictatorial powers to the authorities and the police to conduct searches, arrest, and detain the accused in police custody. If these laws remain untouched by the courts, then there is practically no use in staying sedition as the administration can use laws like UAPA to silence its critics.

(The writer is a student of law based out of New Delhi.)