By Ritik Tyagi, National Law University, Jodhpur
This article aims to study the plight of protesters in India during the anti-CAA protests. The author has made an attempt to establish how the government may use its legislative weapons so as to suppress protests against government policies. The article starts with explaining the rights of protesters in India, moving forward with considering the bail denial case of Ms. Safoora Zargar, why was bail denied, enactment of Unlawful Activities (Prevention) Act, 1967 in her case and the possible reasons for the same. Focus has also been given to the various draconian provisions of the UAPA and how its provisions can be used to even suppress peaceful protests.
RIGHTS OF PROTESTERS IN INDIA
The right to protest peacefully is enshrined in Article 19(1)(a) which guarantees the freedom of speech and expression and Article 19(1)(b) which assures citizens the right to assemble peaceably and without arms, of the Indian Constitution. These freedoms are subject to some “reasonable restrictions” in the interest of public order. These reasonable restrictions are:
· If the security of the state is in jeopardy;
· If the friendly relationship we share with a neighbouring country is at stake;
· If public order is disturbed;
· If there is contempt of court;
· If the sovereignty and integrity of India are threatened.
The Supreme Court of India thorough cases like Maneka Gandhi v. Union of India and Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. has held that citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.
Thus, keeping in mind their right to protest, the protesters should also remember their duties while protesting. The government too should abstain from any arbitrary action towards the protesters.
SAFOORA ZARGAR’S CASE
Safoora Zargar, a 27-year-old research scholar in sociology at Jamia Milia Islamia, Delhi was arrested on April 10, 2020 on charges of blocking a road and obstructing traffic. After securing bail in that case, she was re-arrested on April 13, 2020 under the Unlawful Activities (Prevention) Act, 1967. The police claimed that she was involved in instigating riots which occurred in February 2020 in north-east Delhi.
After being denied bail for the third time citing UAPA, there are certain flaws in the order of the court regarding the same. The most serious flaw being the court conflating “unlawful activity” with “terrorist activity”. The Unlawful Activities (Prevention) Act, 1967 (UAPA) is India’s Anti-terror law with the main aim to make powers available for dealing with activities directed against the integrity and sovereignty of India.
The UAPA,1967 seeks to criminalise dissent and ideological differences by proscribing/banning organisation as per the discretion of the authorities. Members or other people can simply be put behind bars under the worse of regulations by simply stating them to be members of any such proscribed organisation.
It is due to this act that the very act of legitimate expression of dissent becomes a criminal act due to the wide discretionary powers to the authorities.
Owing to the vague definitions of what is ‘unlawful’ and ‘terrorism’, the application of the act depends wholly on the discretion of the government. The act can be used to even suppress constructive criticism of the government. In toto, the UAPA can be said to abridge freedom of expression, assembly and association, guaranteed by Article 19 of the Constitution of India,1949, the bedrock of democracy. Once banned, an organisation is denied the right to engage in legitimate mass organisation activities, leaving it no option but to carry on its struggles through violent and armed means.
It is no surprise that the government may well go beyond the text of law through the impact of this act, and project those charged under this Act as an especially dangerous category of criminals. This comes as a very powerful weapon against dissent in the hands of the government.
Through a number of judgements, Indian courts have reiterated that laws which curbs fundamental rights are essentially unconstitutional and fundamental freedoms could only be curbed in the most extreme cases. (Romesh Thapar judgement)
The UAPA act since its enaction in 1967 has been under criticism owing to its various aspects including a vague definition of what is defined as a ‘terrorist act’ (2012 amendment expanded its definition to include offences that threatened the country’s economic security).
As per the act, a criminal is anyone who upholds an ideology common to that of an organisation which is unlawful/terrorist even in the absence of any violent act, hence, mere membership or association with such an organisation will be construed as a crime and will be an offence. Going by this logic, there is a very high chance that the organisation advocating the rights of a certain minority or of the oppressed sections can be easily banned under this act.
Another reason for referring to this act as a Draconian law is the prevalence of a provision that allows detention for up to 180 days and police custody for up to 30 days with the authorization to create special courts, wide discretion to hold-in camera proceedings(closed-door hearings) and use secret witnesses but contains no sunset clause and provisions for mandatory periodic review.
As per Indian laws, a person who is accused of a criminal offence can be granted bail before trial if he can show that he will not abscond, tamper the evidence and threaten witness. However, the moment UAPA comes in these provisions are not applicable, instead the provisions under section 43D (5),
Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
Chapter 4 and 6 deal with terrorism acts and membership of terrorist organisations. Denial of bail to Safoora Zargar under section 43D (5) is not as per the law because the charges against her deal with unlawful activities which is dealt with under chapter II of the UAPA, 1967 and no restrictions to bail is mentioned thereof rather terrorist activities. Still, the order being passed by the honorable court resulting in denial of bail to her seems to be on the lines of thought policing, something which should not be happening in a constitutional democracy.
Thought policing, a term which finds its mention in George Orwell’s novel 1984, means discovering and punishing thought-crime, personal and political thoughts unapproved by the government.
Irrespective of Safoora’s stance on the Citizenship Amendment Bill, 2019, the government has no right to deny any citizen the right to protest and show dissent by unfairly enacting the provisions of any law, the laws need to be followed in letter and spirit.
The enactment of Unlawful Activities (Prevention) Act, 1967 by conflating “unlawful activity” with “terrorist activity” in Ms. Zargar’s case thereby attempting to suppress the voice of a protester was not only unethical but also seems to indicate that the law enforcement agencies might be following the orders from a “higher power”.
The right to freedom of expression guaranteed by Article 19, subject to reasonable restrictions for the security of the state, should not be undermined just so as to suppress a critique of the status quo. This case of denying bail to Ms. Safoora Zargar is more likely a case of thought policing and implementing the UAPA act in her case, the age-old tactic of the government i.e. using its legislative weapons to eliminate any threats to its policies and decisions.
 INDIA CONST. art. 19 cl. 1(a) INDIA CONST. art. 19 cl. 1(b)  Maneka Gandhi vs. Union of India (1978 AIR 597, 1978 SCR (2) 621)  Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. (2012 (5) SCC 1)  The Unlawful Activities (Prevention) Amendment Act, 2008 (35 0f 2008)  INDIA CONST. art. 19  Romesh Thappar vs. The State of Madras (1950 AIR 124, 1950 SCR 594)  See supra note 5.  The Citizenship Amendment Bill, 2019.