24 September 2020 10:36 AM

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PRIYAMVADA & PRATYUSH DEEP | 30 DECEMBER, 2019

Amended UAPA against Protestors: You Prove Your Innocence, Prove You’re a Citizen, Prove You Belong

Centre puts into practice recent changes to UAPA and NIA Acts


The groundbreaking protests against the Citizenship Amendment Act in Assam have turned the state into a battleground. At the time of writing, firing by the armed forces had reportedly killed five unarmed protestors, and the police had arrested 190 people and taken 1,406 people into preventive custody across the state.

Assam based RTI activist and leader of the Krishak Mukti Sangraam Samiti, Akhil Gogoi, who was placed under preventive arrest on Thursday, has now been booked by the National Investigation Agency under the amended Unlawful Activities (Prevention) Act.

Gogoi is the first individual arrested under the amended UAPA which had triggered debate through the year on the excessive powers it gives to the central government, and the threat that it would be used to target specific demographics, mass leaders or the political opposition.

Three other KMSS leaders, namely Dharjya Konwar, Bittu Sonowal and Manash Konwar, were also arrested under preventive detention and sent to jail. After they got bail, the NIA arrested Konwar and Sonowal again on Monday night.

The amended UAPA allows agencies under central control to designate individuals as “terrorists” and so far in Gogoi’s case the NIA alleges that his “visible representation and spoken words… have abetted, incited hatred and caused disaffection towards the government…” It also accuses Gogoi of being involved in “terrorist activities”.

Hiren Gohain, a literary critic who has observed Gogoi's politics from close quarters described it as “pro-peasant and anti-centre, in the sense that the centre has been very negligent about the real development of Assam.”

“Gogoi’s arrest is condemned by all sections of society because he had given momentum to the movement against the CAA in upper Assam. He with all his limitations is a mass leader who can organise and mobilise people. Thus his arrest is obviously designed by the government to weaken the movement or divert it,” said Gohain.

The KMSS is one of the key organisations behind protests against the CAA since 2016. During Anna Hazare’s movement towards the end of the last UPA government, the organisation played a critical role in organising against “corruption” in Assam.

Yogendra Yadav, head of the political party Swaraj Abhiyan, feels that arresting Gogoi “is a government ploy to put him behind bars as he is an uncompromising leader and one of the leading anti-corruption crusaders and environmental activists. The government also tried to arrest him earlier under sedition charges, and has been targeting him for quite some time.”

The All Assam Students Union which has been at the forefront of the Assam Movement has also “strongly condemned” Gogoi’s arrest.

Others opposing the CAA have like Gogoi been arrested under Sections 120B, 120A, 153A, 153B, and 18/39 of amended UAPA, without considerable evidence being presented of their involvement in unlawful acts.

Kunal Ambasta, who teaches at the NLSIU Bangalore, describes it as an “extortion of powers” by the centre. “The problem with UAPA is it allows for convenient arrest and custody of people who are protesting the policies of the government, without having to substantiate any allegations. The final adjudication of guilt or innocence is years away, but in the meantime, long incarceration, lack of procedural rights such as bail, and the ignominy of being branded a terrorist, effectively punish a person through the process itself.”

Gogoi’s arrest is also being seen as punishing “thought crime” in Orwell’s concept from the novel 1984. CPI-ML leader and secretary of the All India Progressive Women’s Association Kavita Krishnan believes this goes against the democratic ideals of dissent. Designations like “terrorist” bring disrepute to the individual and violate “Article 14, 19 and 21 of the Constitution of India” that grant freedom of expression, liberty and equal status, Krishnan said.

The National Investigation Agency’s FIR also alleges that Gogoi has “links” with the CPI (Maoist), a banned organisation under UAPA. But according to Ambasta, “mere association with a banned organisation is not a crime, as laid down by the Supreme Court itself in the case of Arup Bhuyyan.”

Nor can this form the basis for arrest under the amended UAPA, which requires an offence to have been committed, he added.

In the amended UAPA, a conspicuous change is reversing the onus of proving guilt. “Under criminal law, the prosecution has the burden of proving the guilt of the accused. When this burden is reversed, with the onus shifting onto the accused to prove her innocence, then it goes against the tenets of criminal law” Ambasta believes.

“Sometimes, the prosecution has to prove some basic facts such as presence of the accused in the vicinity of an attack for the court to place the burden on the accused, which is provided for under law. To place the burden of proving that a person is not a ‘terrorist’ after being so designated through the UAPA amendment, is equivalent to placing the judicial function at the feet of the political executive. There is no due process here” he said.

If unable to defend themself, an innocent can be convicted for an indefinite period of time with no provision for anticipatory bail or a ‘sunset clause’ or ‘periodic review’. In the wake of ongoing protests against the NRC and CAA, where thousands have been arrested or detained across the country so far, the absence of such clauses can invite the civil death of the person.

“Such changes have changed the whole maxim that an ‘individual, unless proven guilty, is innocent in the eyes of law’. Here the state is already seeing the individual as a criminal,” says Anil Chowdhary, head of the Indian Social Action Forum or INSAF, an umbrella platform of 700 NGOs and people’s movements.

The amended UAPA also empowers the NIA to conduct investigations, raids and eventual arrests anywhere in the country without the consent of the state government. This confers the NIA with absolute powers to make arrests or seize or attach the property of suspects in the course of its work.

“One also has to see the UAPA Amendment along with the amendment to the NIA Act, which gives this central government agency wide powers to infringe on the areas under the jurisdiction of state police forces,” Ambasta said.

The amended NIA law gives powers to the agency to investigate crimes “relating to Indians and the interests of India” in a vaguely worded provision where “interest” is left just as much undefined as “terrorist” under the amended UAPA, he explained.

“Law and order is a state subject and not one for the union government to interfere in. The NIA as a union government force cannot and should not bypass state police. Ordinary penal laws and procedure are fully capable of dealing with terror offences in India.”

Now that such changes to the law are being put into practice, there is imminent fear that they will be used to subjugate political resistance in any form.

Speaking earlier on draconian laws like the UAPA, senior advocate Colin Gonsalves said that a robust democracy like ours is moving away from that path. “There exist two ways: fascism and democracy in present time, where it is the fascist path that is harming national security and peace.

“This law does not display an obsession with national security, rather, it is an obsession with crushing individuals, who see that India should foster its democratic ideals.”

Cover illustration - Mir Suhail

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