Why are governments so fond of anti-terror laws?

Representative image

In its report opposing the bail plea of activist and Jamia Co-ordination Committee member Safoora Zargar, the Delhi Police stated, “Unless evidence in rebuttal is presented (which can only be at trial) she cannot claim to be innocent of the acquisition made against her”.

Let’s unpack this statement. Zargar, the police argues, cannot seek bail claiming to be innocent of the allegations made against her unless she presents evidence of the same. However, she will not have the opportunity to present that evidence until trial (typically, years later). Zargar was granted bail, after the Centre backtracked and withdrew their objection, on June 23.

Section 43D of the Unlawful Activities (Prevention) Act, 1967 (UAPA) bars a person accused of offences under certain chapters relating to terrorism from being granted bail if the court is of the opinion that there are reasonable grounds for believing that the accusations are prima facie true. (Notice the use of four extremely vague terms, significantly lowering the standard of proof required from the police).

The State has often taken advantage of this dilution. When the Supreme Court heard a petition seeking an impartial inquiry into the Bhima Koregaon riots after the Maharashtra government arrested prominent activists under the UAPA, the government presented evidence in a sealed cover. A line from the dissenting judgment of Justice DY Chandrachud is instructive: Perusing the allegedly incriminatory materials, Chandrachud remarked that the allegation that each of the five individuals was engaged in the alleged activities (on the basis of the material) “is taking liberties with the truth”.

The two judges who constituted the majority, however, expressed their confidence in the state government’s investigation, and allowed it to continue. Now, two years later, the arrested activists are still in jail, and any evidence of their actual involvement seems more smoke and mirrors than anything substantial.

It is expected that when the statute grants wide scope for the executive to detain and charge a person, the judiciary will also impose a higher level of scrutiny over their claims. Yet, from Kashmir to Kerala, the UAPA, as well as other such draconian laws have been invoked with almost no challenge from the judiciary.

In November 2019, the Kerala Police arrested two men aged 19 and 23 years, after spotting them on the road “standing in suspicious circumstances”. Thereafter their homes were searched and what the police considered as ‘incriminating material’ to show their membership of the banned organisation CPI (Maoist) was discovered. On the basis of this material the police (later taken over by the National Investigative Agency) charged the two with provisions relating to terrorism and successfully opposed their bail-pleas, till earlier this month a special NIA Court objectively examined the facts.

Finding that while the accused are indeed members of the banned organisation, the court said that none of the evidence collected showed that that they conspired do any terrorist act, or that their membership was with intent to further any terrorist activities (as the statute required); and granted them bail — but after 10 months of incarceration on arguably dubious grounds.

Almost simultaneously, two other UAPA cases against alleged Maoist leader Roopesh were quashed by another Kerala court finding that the Kerala Police “had shown a ‘dishonest intention’ to detain the accused in jail indefinitely”.

In Uttar Pradesh, the high court similarly quashed the detention of Kafeel Khan, who was detained under the even more draconian National Security Act, 1980, since January. This law allows the State to detain a person for up to 12 months without a charge, and without access to a lawyer.

One might be tempted to argue that terrorists don’t need lawyers, but as we have seen repeatedly, often the State brands opponents as terrorists only to cut them off from their legal remedies. Kashmir leaders, including former Chief Minister Mehbooba Mufti, continue to be detained under the Jammu and Kashmir Public Safety Act, 1978, which has similar provisions, for over a year without recourse to a lawyer, or the right to file for bail.

After about nine months of incarceration, the Allahabad High Court, hearing a Habeas Corpus plea filed by Khan’s mother, found that the detention itself, as well as its extension, were bad in law, and set him free. Justice was served, but after nine months of being locked up (and allegedly, tortured), that is cold comfort.

In fact, there is ample evidence to suggest that the government has been using these laws to imprison its antagonists rather than for investigating any serious threat. In a reply to Parliament this week, Minister of State for Home G Krishan Reddy stated that out of 3,005 cases registered under the UAPA between 2016 and 2018, only 27 percent resulted in a chargesheet.

A chargesheet is filed when an investigation concludes that there is sufficient evidence to bring the accused to trial. Similarly, between 2017 and 2018, 1,198 people were detained under the National Security Act, of whom 563 continue to be behind bars.

These laws — all dating back decades — presume good faith and forbearance on behalf of the government wielding it, and for the courts to be extremely sceptical of the government’s claims. Sadly, today we see governments willing to push the boundaries, and with accused denied traditional legal protections, the courts must be more vigilant and hold the State to a higher degree of scrutiny.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.