Draconian Law

Saibaba conviction: How a draconian law has turned mere thought into crime

The Unlawful Activities (Prevention) Act removes the distinction between belief and action, criminalising speech and thought as "terror".

Forty-eight-year-old Gokalkonda Naga Saibaba, a professor of English at Delhi University, suffers from a spinal disorder that has resulted in the rapid deterioration of his muscles and nerves. The condition means Saibaba cannot walk or use his left arm. His rib cage is collapsing onto his lungs. He is 90% disabled and requires constant medical care to stop his condition from declining precipitously to an extent that could be a threat to his life.

It is maybe a testament to the warped world we now live in that this severely disabled man has been sentenced to life in prison on charges of being a terrorist on Tuesday. How could a man who cannot move be a terrorist? Indeed, there is nothing linking Saibaba to any direct taking of civilian life or destruction of property, which is what one might logically assume a terror charge might consist of. As his lawyer Rebecca John told Scroll, there was no evidence that he had “any role to play in any violence, or in incitement to violence, or any active participation at all”.

What Saibaba was convicted for, instead, were his thoughts and ideology.

The court held that he was a Maoist. He was accused of idolising the Naxalbari uprising of 1967 and “promoting and propagating communist ideology”. Evidence against him consisted of literature allegedly found on his laptop from which the court deduced that he was associated with the banned Communist Party of India (Maoist). In this case, John said, it seemed that the state was “trying to enter the mind of a person, into what his ideology is”.

In most legal systems, only acts are criminalised. Thoughts are not. That was till now. Now many legal systems are using terror as a convenient excuse to make certain thoughts themselves criminal, fulfilling George Orwell’s prophecy in his dystopic novel 1984. In this trend, India is something of a world leader with the existence of the Unlawful Activities (Prevention) Act, under which Saibaba was convicted.

The UAPA was passed 50 years ago…

…in 1967 by the Indira Gandhi’s Congress government. The Act severely curtailed the fundamental rights of free speech, association and peaceful assembly.

In 2008, the Act was amended by Manmohan Singh’s United Progressive Alliance government, immediately after the Mumbai terror attacks, to expand its powers greatly. It was amended again in 2012, making it even harsher.

As it stands now, the act gives draconian powers to the state to harass people.

  • Expanded definition of terror: “Terror” under the Unlawful Activities (Prevention) Act includes even the “disruption of any supplies or services essential to the life of the community in India or in any foreign country”. Which means even an industrial strike could now be “terror” if the government so chooses it to be. Moreover, simply being the member of a “terrorist gang or organisation” is enough to merit life imprisonment, even if the accused played no actual part in a crime. This has led to cases where the police has tried to prove membership of the Communist Party of India (Maoist) simply by pointing to the person possessing “Maoist literature” – a unique case of your reading choices leading you to prison.
  • Encourages police torture: Gruesome torture is an almost regular part of policing in India. The UAPA makes it even easier for this to occur since it allows the police to detain someone for up to six months without filing charges.
  • Overturns presumption of innocence: Innocent until proven guilty is a fundamental feature of the common law system that India follows. The Unlawful Activities (Prevention) Act, though, overturned it in 2008. A person is automatically assumed to be guilty if weapons are recovered from him. India’s lawmakers, in a convenient bit of naiveté, did not consider the prospect of the police itself planting arms on a person even though instances of such false cases are rather common in India.
  • Arbitrary bans: The Unlawful Activities (Prevention) Act empowers the state to ban organisations summarily without having to provide a reason. This leads to a curiously Kafkaesque situation: how can an organisation logically contest its ban in court if it does not know why it was banned in the first place?
  • Guilt by association: This rather well-known logical fallacy is also a key part of the UAPA. In 2012, the Union government expanded the definition of a “person” to include “an association of persons or a body of individuals”. Given this clause, as this Human Right Watch report points out, a person could be charged with terror for simply being in contact with another accused. When it was pointed out that the proposed 2012 amendment contained a logical fallacy, the Union government’s “solution” was to reply with a legal fallacy and overturn the legal presumption of innocence. The Union Home ministry said

“Now, there can be one question that there may be some members of an association, group or a company who were not associated with that decision to keep terrorist funds or with the decision of financing terrorism. It is possible, but there is also a provision here that where any person, any member of a firm or any member of a company is not associated with it, he can produce evidence for that purpose to show that he is not associated with that.”

Unsurprisingly, UAPA is being used to silence people the State doesn’t like.

Saibaba, for example, was a vocal critic of the Union government’s policies with respect to adivasis in central India’s mineral-rich corridor. In 2010, a journalist, KK Shahina was charged under the Unlawful Activities (Prevention) Act for investigating the framing of Muslims by the Karnataka Police in cases of terror.

Manipur, a tiny state with 0.2% of India’s population accounted for a whopping 65% of UAPA cases in 2014 – a statistic that might have something to do with the excessive state repression it faces.

In 2011, the Maharashtra Police arrested Jyoti Chorge for being a Maoist. The proof they cited was simply that she possessed literature of the banned Communist Party of India (Maoist). While the Bombay High Court had then acquitted her, ruling that “the possession of certain literature…would amount to an offense…is a shocking proposition in a democratic country like ours”, this lesson, it seems, was ignored in the Saibaba conviction, where literature about the Naxalbari uprising was used as evidence by the court.

In 2008, the Karnataka police charged 17 Muslim men with being a part of the banned Students Islamic Movement of India. Accused under the Unlawful Activities (Prevention) Act, the police produced “jihadi literature” as proof. Later this “jihadi literature” turned out to be copies of the Quran and the case collapsed – but only after subjecting these young men to seven years of imprisonment.

Given the extremely odd framing of the UAPA – which criminalises thought rather than action – the human rights abuses under this law seem only set to increase.

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