Indian anti-terror law snags more than terrorists

Pendyala Pavana is no stranger to the world of social activism and government repression. Ever since she was a child she has seen her father, a revolutionary poet and activist, subjected to repeated criminal charges, accused of everything under the sun, including murder.

Twenty-four times he has been charged; 24 times he has been found not guilty. Still, Ms. Pavana is shocked by the way her father, Varavara Rao, is being treated in his latest ordeal. “It’s quite against natural justice, and his rights are completely denied,” she says.

Mr. Rao is one of 16 people, including respected human rights lawyers and university professors, detained in 2018 for allegedly plotting with a banned Maoist group to overthrow the government.

They have been charged under India’s principal anti-terrorism law, the Unlawful Activities (Prevention) Act, known as UAPA. This is a draconian, vaguely worded catchall law, dating from 1967 but amended several times since then, that allows detention without charge for 180 days, a duration far exceeding international standards. It also makes securing bail almost impossible, but its use very rarely leads to court convictions.

“There is no doubt the law is being abused,” says retired Supreme Court Justice Madan Lokur. “Strengthening the rule of law is one aspect of a liberal democracy; fairly implementing the law is another aspect. I think we are deficient on both counts." 

Critics complain that the UAPA is used indiscriminately. Meenakshi Ganguly, South Asia director for Human Rights Watch, says it is part of “an increasing trend in India where the authorities are abusing laws to punish peaceful dissent.” Police even used the UAPA to arrest Muslim students celebrating Pakistan’s recent victory against India in a cricket match, she points out.

Mr. Rao’s case has attracted particular attention because one of his fellow accused, tribal rights activist Father Stan Swamy, died in custody in July after being repeatedly denied bail in spite of his deteriorating health. Aged 84, he was the oldest person ever to be accused of terrorism in India, and his death led to widespread international outrage and condemnation.

A sense of fear

India has a history of passing strict but temporary pieces of anti-terrorist legislation and then letting them lapse or repealing them in the face of criticism that they were being unfairly used against government opponents and marginalized communities. Legal experts say that the UAPA, which is permanent legislation, is the most stringent law yet; critics see it as a weapon that Prime Minister Narendra Modi is using to crack down on civil society.

UAPA cases have been on the rise since 2014, when Mr. Modi’s Hindu nationalist Bharatiya Janata Party won office. A recent report by the Swedish V-Dem Institute rated India as an “electoral autocracy,” noting that India’s democratic decline was “one of the most dramatic shifts among all countries in the world over the past 10 years.”

In 2019, a total of 1,948 people were arrested under the UAPA, according to government figures, a 37% increase from the year before. But complaints that the law is used indiscriminately against government critics rather than against the terrorists it is officially meant to target appear to be borne out by another statistic: Of the 7,243 arrests made under the UAPA since 2016, only 212 – fewer than 3% – led to a conviction.

The law is not being used against any particular group or political party, says Suresh Veeraraghavan, general secretary of the People’s Union for Civil Liberties, a human rights watchdog. Rather, he says, police use it to target people speaking up for the rights of others. “The government is using UAPA as its preferred legal weapon to crush human rights and the democracy movement,” he charges.

“Those who are active and at the forefront [of demonstrations] are being arrested and investigated,” adds Asif Iqbal Tanha, a student detained last year under UAPA for his alleged role in a conspiracy related to Hindu-Muslim violence in New Delhi in 2020. “This is being done to give a message to the others that if they stand up in protest, this will happen to them, too. This is to create a sense of fear.”

In recent years, journalists, activists, and lawyers across the country have been booked under the UAPA.

“These laws exist to protect the public from indiscriminate [terrorist] attacks, not to punish views that the government may not like,” says Ms. Ganguly of Human Rights Watch.

Blurred lines

“The present government has been clamping down on dissent in various ways,” says Mihir Desai, a lawyer representing several of those detained with Mr. Rao. “But UAPA becomes the most dangerous because of your liberty being denied for years, together without any evidence being presented.”

Under the UAPA, bail is automatically denied if the court finds that police evidence makes a prima facie case that an offense has been committed. It can take years before that evidence is tested in court. Last year a man returned home after spending 11 years in a jail in Gujarat state on unproven terrorism charges, and two others were cleared of all charges, due to lack of evidence, nine years after they had been arrested.

Because the denial of bail is written into the law, “the moment the law is invoked, these procedures are not being misused; they are being used,” says Kunal Ambasta, who teaches at the National Law School of India University. “The moment you have such a law, you are waiting for ... abuse to happen.”    

Experts have also found indications that some of the evidence against Mr. Rao and his co-defendants in the case has been fabricated and planted on them. Earlier this year, studying the computers of activist Rona Wilson and human rights lawyer Sunil Gadling at the request of defense lawyers, Arsenal Forensics, a Massachusetts-based digital forensic firm, found that more than 30 fake documents had been inserted by an unknown hacker into their laptops.

In July, Ms. Pavana learned that her phone number was among those selected for surveillance using Pegasus spyware by a client of the manufacturer, Israel’s NSO Group. NSO says that it has sold its spyware only to governments. While she had always expected some form of surveillance on her father, “what was shocking to me was knowing that even my life is being completely observed by someone else. It really troubled me,” she says.

Such surveillance, and the use of the UAPA, seem to match the current public mood, says Mr. Ambasta. “The general discourse, both public as well as political, has shifted towards the greater prioritization of national security,” he says. “It’ll be political hara-kiri for someone who is ... contesting elections to say that they are going to repeal an anti-terror law.”

And courts almost always accept police evidence, keeping suspects locked up while they await trial. But in July the High Court balked, and granted bail to Mr. Tanha, the student being held on a conspiracy charge, and two others.

In its ruling, the court noted that “in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred.”

“If this mindset gains traction,” the High Court judges warned, “it would be a sad day for democracy.”