Altering the Compensatory Scheme under The Unlawful Activities (Prevention) Act: An aim at reducing false convictions

Shiluti Walling[1]

Abstract

The Unlawful Activities (Prevention) Act was amended in 2004 following the repeal of Prevention of Terrorist Activities Act (POTA) for its gross violation of human rights. It nonetheless retained the dubious provisions of its repealed counterpart and following subsequent amendments in 2008 and 2012, it has evolved into a draconian legislation that is misused to persecute minorities whether ethnic, religious or political. With Constitutional safeguards being circumscribed, fairness ensured by established criminal procedure and the rules of evidence are altered for the terror accused. In multiple instances, individuals are falsely convicted under terror charges as the provisions of UAPA are liberally invoked by the investigating agencies with no repercussions for the same. This paper highlights the lacuna mentioned and aims to quell the flaw in the criminal justice system by suggesting a compensatory mechanism to address such wrongful convictions in hopes of reducing the evident problem.

Introduction

“First they came for the Socialists, and I did not speak out because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out because I was not a Jew.

Then they came for me—and there was no one left to speak for me.”-Martin Niemöller

The Unlawful Activities (Prevention) Act [hereinafter referred to as “the Act”] is an extraordinary law that curtails an accused’s fundamental rights, particularly articles 19[2] and 21[3] that allow a citizen of India to form peaceful associations and accord a protection to an individual’s life and liberty respectively. At this point, it is relevant to note that an extraordinary law is one that exceeds the usual, average, or normal measures[4] that circumscribe legislations. They legitimise exceptions in procedures of investigation and trial. The legitimacy of procedural exceptions stems from political decisions identifying and affirming the existence of a state of emergency that makes such exceptions imperative.[5]

The Act is not the first of its kind. Although the all-encompassing security measures encapsulated under the Prevention of Terrorism Act (POTA) were rescinded following the victory of Congress Party-led UPA coalition in 2004, however, many of its questionable provisions were shifted into the criminal code through the revision of the Act in the same year.[6]

The special status of the Act allows it to violate the procedure established by law.[7] Section 15 of the Act lays down what constitutes a terrorist act. It emphasises on the mens rea or the intent,[8]however, terrorism is nowhere defined in the Act. Justice A.S. Anand in Hitendra Vishnu Thakur[9] highlighted the difficulty in trying to lay down what constitutes ‘terrorism’. In addition, the Kerala High Court in Vikraman[10] acknowledged that the scope of what constitutes a ‘terrorist act’ under the UAPA if far more wide-reaching than its repealed predecessors. Even the likelihood of causing terror in the people or any section of the populace would be construed as a terrorist activity under the Act.

The 16th Constitutional Amendment allowed for the imposition of ‘reasonable restrictions’ in the interests of the sovereignty and integrity of India. It was termed as the “Anti-DMK Bill” as it aimed at curtailing the freedom of speech and expression in the context of quelling the burgeoning agitation for succession by Dravida Munnereta Kazhagam (DMK) in the state of Madras. Ironically, it had been enacted when the calls for ‘Tamilnad’ had died to a lull in the wake of the Chinese aggression.[11] The UAPA has an interesting pre-2004 history. It was enacted in 1967 in the context of the Naga rebellion.[12] It was the 16th Constitutional amendment that gave the legislation validity. It was a ‘reasonable restriction’ with an aim to protect the sovereignty and integrity of India.

The power to search, seize and arrest: too draconian?

Constitutional safeguards

The fundamental rights of association, assembly and expressionguaranteed by the Constitution are imperative for the functioning of a democracy; however, all of these rights are curtailed by the Act. Art. 20 (3)[13] of the Indian Constitution embodies the privilege of the right against self-incrimination. Although the origin of the right to silence is unclear, it can be traced back to Medieval England.  The right to silence is based on the principle ‘nemodebetprodereipsum, which is translated to- the privilege against self-incrimination.[14] This privilege, however, extends only to testimonial compulsion.‘It was in Selvi[15] where it was held that compulsory administration of scientific techniques, namely narco-analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) bear a ‘testimonial’ character and thereby triggers the protection of Art. 20 (3) of the Constitution.[16]

POTA allowed for the collection of samples from an accused and reluctance to provide the demanded samples would invoke the statutory provision for the courts to draw an adverse inference against the accused.[17] The constitutional validity of the section was affirmed by relying on the Kathi Kalu Ogadh[18] case which stated that impressions of the thumb, foot or palm did not constitute an individual being a witness against himself and therefore did not attract the protection of Art. 20 (3) of the Constitution. The CrPC was amended in 2005 following the repeal of POTA to give more power to a registered medical practitioner to use reasonable force necessary to ascertain facts.[19]

The tussle between the CRPC and UAPA

Criminal Procedure mandates that an individual arrested without a warrant must not be detained for more than twenty-four hours.[20] In the event that the police cannot complete its investigation within the stipulated time, a magistrate can extend the period to 180 days on the fulfilment of certain requirements for grave cases.[21] These provisions of the CrPC reverberates the fundamental right against arrest and detention accorded to all individuals.[22]

The Act’s provisions permit the police to search, seize and arrest ‘suspected’ perpetrators of terror crimes and bail becomes an impossible task as section 438[23] of the Criminal Procedure Code does not apply[24]. The accused is not granted bail unless the Public Prosecutor has been given an opportunity of being heard on the application for such release. In addition, the Act authorises the creation of special courts, with wide discretion to hold in-camera proceedings[25] (closed-door hearings) and use secret witnesses. Adding to the peculiar nature of the Act, it does not contain any provision for mandatory periodic review[26] or a sunset clause meaning that the ceremonial repeal of the law post the initiation of state action- whether by the police or the courts would be redundant as the law would still be applicable.[27]

The Act, since its adoption has been amended twice, in 2008 and 2012. Accordingly, the Act now embodies the draconian provisions of its repealed predecessor POTA. Courts can deny bail if onits initial perusal, if the court believes that there exist reasonable grounds that the accusations against the individual are prima facie true.[28]

The maxim ‘generalia specialibusnon derogant’ in the context of extraordinary laws had been discussed in Jayanta Kumar Ghosh[29]where the court held that in the case of an inconsistency between the general provision and special provision, the special provision shall prevail.

The law of evidence

Ambiguous definitions of what construes terrorism, accompanied by severe penalties and wide ancillary powers of detention and investigation, can be misused to persecute political opponents or authorize repressive measures against unpopular or marginal religious and ethnic populations.[30] The deviation of the Act from established principles of criminal jurisprudence is wide and far-reaching. For instance, there exists a presumption of guilt on the accused[31], therefore the burden to prove innocence shifts to the accused. This is not only contrary to the very conception of the common law dictum of ‘eiincumbitprobatioquidicit, nonquinegat’ (the burden of proof is on he/she who declares, not on one who denies) but also seems a prima facie violation of the rule of law. The dice remains loaded against the accused even after a case goes to trial as evidence which ordinarily would not be made admissible in a crime of murder can be used as conclusive proof for convicting an accused under the Act. State investigating agencies, on the other hand need to put in minimum amount of work for the accused’s prosecution in court[32] In order to curb police tyranny, any incriminating statement made to a police officer is not admissible as evidence against the accused.[33] However, some police officers have admitted that using coercive forces in order to elicit confessions from criminal suspects is their primary investigation tool, as opposed to gathering forensic evidence and eye witness testimonies.[34]

In R. M. Malkani[35], the Court had laid down certain guidelines as to when telephonic conversations could be admissible as evidence by applying the doctrine of res gestae[36]. When the voice is identifiable, the conversation is relevant to the matters in issue and there is proved accuracy of the recording, then the recording is admissible. The Act permits such recordings admissible if the accused is furnished with a copy of the order.[37]

International standards

Traditionally, wrongful convictions have been seen as a domestic problem largely undeserving of national or international attention. While international law guarantees a right to a fair trial, countries have long varied in what rights they grant defendants to factually challenge their convictions. The degree to which a country permits such challenges reveals that country’s “confidence . . . in its norms and mores,” including the accuracy of criminal convictions and attitudes towards human rights.[38] Fairness at trial, the accuracy of sentences, and limiting convictions to those for actual offences are all principles that are reflected in international treaties such as the U.N. Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR)[39], but they have failed to provide any meaningful remedy for wrongful conviction. However, many of these human rights treaties do provide for compensation for the wrongly convicted once exonerated. For instance, ICCPR Article 14(6) provides that persons whose convictions were reversed based on new evidence of innocence or a miscarriage of justice should receive compensation.[40] Provisions of human rights treaties are not directly enforceable in the absence of concurrent enabling domestic legislation however the Constitution mandates respect for international law and treaty obligations.[41] The Supreme Court in India too expressed in Vishaka[42] that International Conventions if not inconsistent with fundamental rights must be read into domestic legislation in order to promote the object of the constitutional guarantee.

Additionally, since many human rights’ conventions have a strong double jeopardy principle, the United Nations Human Rights Committee, which is tasked with issuing general comments interpreting the ICCPR, also noted that reopening criminal proceedings could be justified by exceptional circumstances,” which could be considered “a resumption of a criminal trial,” and not a retrial in violation of double jeopardy. However, the transition from states adopting innocence claims as a matter of practical necessity to adopting them as a legal obligation is still an on-going process.[43]

In contravention to its international obligations, India has failed to create a legislative framework that provides for compensation to victims of wrongful prosecution/conviction as mandated by the ICCPR.[44] India did put forth its reservation regarding compensation for victims of wrongful arrest while ratifying the ICCPR in 1979, however; numerous landmark judgments (discussed in the subsequent) have put the arguments to rest.

In the wake of the 9/11 terror attacks in 2001, UN Security Council Resolution 1373 was adopted. Although it directed all States to adopt measures to combat international terrorism, it did not contain any provisions that ensured the adherence to human rights norms.[45] This shortcoming was corrected with subsequent resolutions; specifically UN Security Council Resolution 1456.[46] This resolution clarified that any steps taken in combating international terrorism must comply with international human rights, refugee and humanitarian law.

India has implemented resolution 1373 post-2001 while enacting counter-terrorism laws that deviate not only from ordinary criminal procedure and core human rights guaranteed by the ICCPR but also the most fundamental tenants of criminal jurisprudence.[47]

Scheme of compensation in India

Changing jurisprudence

The first case in which the Apex Court had awarded compensation for the violation of basic human rights was in the Bhagalpur Blinding case.[48] The incident derived its insidious name from the gross police excesses committed upon the prisoners of Bhagalpur jail, Bihar. In this case, thirty one under trials were blinded by acid being poured into their eyes. This case was a huge step in Indian criminal jurisprudence as the Court stated that if an individual’s right to life and liberty is abridged by means other than the procedure established by law, the Court must forge new tools and devise new remedies for the vindication of fundamental rights. 

The question is to whether the scope of Art. 21 covers right to compensation for its violation was first discussed in Rudul Shah.[49] The petitioner had been released fourteen years after his acquittal. He filed the writ of Habeas Corpus under Art. 32 of the Indian Constitution for his ordeal and had also sought compensation for his illegal detention. The judgment, delivered by Chief Justice Chandrachud stated that Art. 21 which guarantee the right to life and liberty would be denuded of its content if the power of the Court were circumscribed by the mere passing of orders to release an individual from illegal detention. The judgement went on to state that “One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Art. 21 secured, is to mulct its violators in the payment of monetary compensation.”

A defence that was sought by the State was the doctrine of “Sovereign Immunity. According to it, the State cannot be sued by its citizens.[50] The Supreme Court, however, clarified that there exists a difference between the liability of the State in “Public Law” and the liability of the State in “Private Law” for payment of compensation in action on tort.[51]The Court further went on to elucidate that Sovereign Immunity could not be claimed for the contravention of fundamental rights and that the award for compensation in a proceeding under Art. 32 and Art. 226 of the Constitution is a remedy available in Public Law.

Current position in India

In 2017, a high-level committee headed by state police chief Loknath Behera reviewed cases charged under UAPA for the past five years. Out of the 160 cases reviewed, it was reliably learnt that not enough caution was exercised while slapping on the UAPA charges for almost a third of the cases.[52]This is a clear indication of the abuse of power exercised by investigating agencies that pose havoc on the lives of innocent victims whose legal recourse is greatly diluted because of the terror charges.

An individual whose innocence is proven after being wrongfully convicted still faces the challenge of re-entering society and the failure to compensate them for their depravations adds insult to the already existing injury.[53] It was in D. K. Basu[54] that the Court reaffirmed through its judgment that monetary or pecuniary compensation is an appropriate and sometimes the only suitable remedy for redressal of the established infringement of the fundamental right to life of acitizen by the public servants and the State is vicariously liable for their acts.” While individuals have been compensated for wrongful convictions, the ambit of such compensation does not extend to cases where individuals had been falsely slapped with terror charges.

The suspension of democratic freedoms accentuated by repressive measures and the suspicion of religious minorities all concoct consequences for the subsequent counterterrorism policies and their justification.[55] Past terrorist laws, such as Terrorist and Disruptive Activities (Prevention) Act (TADA) and POTA, have been used to target ethnic and religious minorities, tribals, deprived sections as well as political activists in India. These discriminatory practices continue today with the current Act in place.[56] A committee headed by retired Chief Justice of the Delhi High Court, Justice A. P. Shah in 2017 noted that in the case of false terror convictions, results had not stemmed from mere technical glitches or genuine human lapses in the investigation but rather, it was systemic and willful prosecution fuelled by malice.[57] The Supreme Court in 2016 refused a plea by individuals who had been incarcerated for over a decade and sought compensation for the Akashardham terror case as it would set a dangerous precedent.”[58]

The National Human Rights Commission in 2006 had awarded monetary compensation in a case originating from the years of terrorism in Punjab. The case involved mass disappearances of suspected militants. The Central Bureau of Investigation had discovered that the Punjab Police illegally cremated well over 2000 bodies.[59] This is just an instance of how large-scaleinstitution of false cases was initiated by the police during the TADA regime. Accordingly, POTA contained a provision that held police accountable for malicious prosecution and accorded compensation to the victims.[60] However, the same was not translated into the UAPA when it replaced POTA. The absence of such a provision in the Act currently implies that police acting in such a callous and brazen manner continue to remain insulated from any form of repercussion.

Conclusion

The various counter-terror laws currently enforced in India place an emphasis on the state and not its citizens and its ambiguous definitions of terrorism fail to satisfy the principle of legality by infringing upon due process and personal liberty.[61] Anti-terror legislations are usually enacted against secessionist or global jihadi groups, but as the timeline of history has proved times over, the brunt is borne by minorities (religious, ethnic or political). Prime examples are Tamils in Sri Lanka, Muslims in the USA and India, Kurds in Turkey and so on.[62]The need to protect human rights is vital because as the Apex Court in its obiter dictum addressed- terrorism often thrives where human rights are violated thereby reiterating the need to strengthen action in order to combat human rights violation.[63] India has witnessed different terror legislations being passed and repealed on various fronts through the corridor of time. It is this experience that exemplifies the fact that such an anti-terror legislation must not undermine democratic institutions or the sweeping hand of the rule of law.[64]

The criminal justice system in India is plagued with numerous pitfalls. Lack of manpower, officers not being properly trained or equipped technologically and the element of political clout all pose an uphill battle for the investigating agency.[65] When law enforcement agencies realize that delivery cannot be done via ordinary laws, law enforcement opts for extra-judicial means to deal with such a situation.

In the absence of an institutionalised system of compensation for wrongful convictions, numerous individuals continue to languish in prisons due to the high handedness of investigating agencies that invoke the oppressive provisions of the Act. In an era where global terror is a threat that all countries combat, stringent counter terror laws are justified however, at no cost can they be justified if the most fundamental human rights of individuals are abrogated.


[1] Student, National Law University, Jodhpur.

[2] INDIAN CONST. art. 19 cl. (1) (b).

[3] INDIAN CONST. art. 21.

[4] Black’s Law Dictionary. (2nd edn.)

[5] Ujjwal Kumar Singh, The State, Democracy and Anti-Terror Laws in India 102 (1st edn, 2007).

[6] Border Walls Security and The War On Terror in The United States, India, and Israel, Reece Jones 56 (2012).

[7]  Maneka Gandhi v Union of India, 1978 (1) SCC 248.

[8] Unlawful Activities (Prevention) Act 1967, Section 15.

[9] Hitendra Vishnu Thakur v. State of Maharashtra, (1994) SCC (4) 602.

[10] Vikraman v. State of Kerala, (2014) Crl. M.C. No. 6110.

[11] Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India 106-107, (1st ed. 2017)

[12] Global Anti- Terrorism Law and Policy, (2nd ed. Cambridge University Press); Ujjwal Kumar Sing, Mapping Anti-Terror Regimes in India 237.

[13] INDIAN CONSTI. art. 20 (3).

[14] 180th Report of the Law Commission of India, Article 20(3) the Constitution of India and the Right to Silence, 3, (2002).

[15] Selvi v State of Karnataka, AIR 2010 SC 1974.

[16] M.P. Jain, Indian Constitutional Law 1099 (7th edn, 2016).

[17] Prevention of Terrorist Activities Act 1967, Section 27.

[18] State of Bombay v Kathi Kalu Ogadh, (1961) Cri LJ 856. 

[19] Vidhi Centre for Legal Policy, Anti-Terror Law in India: A Study of Statutes and Judgments 78 (2001 – 2014).

[20] Code of Criminal Procedure 1973, Section 57

[21] Code of Criminal Procedure 1973, Section 167

[22] INDIAN CONST. art. 22.

[23] Criminal Procedure Code 1973, Section 438

[24] Unlawful Activities (Prevention) Act 1967, Section 43 D

[25] Unlawful Activities (Prevention) Act 1967, Section 44

[26] Fifty Years of Unreasonable Restrictions Under the Unlawful Activities Act, THEWIRE  (November 28, 2019), https://thewire.in/rights/uapa-anti-terrorism-laws.

[27] Countering terror or terrorizing the law? Menaka Guruswamy, Seminar (Nov. 04, 2010).

[28] Vidhi Centre for Legal Policy, Anti-Terror Law in India: A Study of Statutes and Judgments 71, (2001 – 2014).

[29] Jayanta Kumar Ghosh v NIA, 2014 (1) GLT 1. 

[30] Back to the Future: India’s 2008 Counterterrorism Laws, Human Rights Watch 5, (July 04, 2010).

[31] Unlawful Activities (Prevention) Act Section 43 E.

[32] The Terror of Law: UAPA and the Myth of National Security, Coordination of Democratic Rights Organizations 44, (2012).

[33] Indian Evidence Act 1872, Section 35.

[34] Dysfunction, Abuse, and Impunity in the Indian Police, Human Rights Watch (Aug 04, 2009).

[35] RM Malkani v State of Maharashtra, (1973) 1 SCC 471.

[36] Indian Evidence Act 1872, Section 8

[37] Unlawful Activities (Prevention) Act, 1967, Section 46.

[38] Ira P. Robbins, Comparative Post-Conviction Remedies IX (1980).

[39] Universal Declaration of Human Rights G.A. Res. 217 (III) A, arts. 10–11 (Dec. 10, 1948).

[40] International Covenant on Civil and Political Rights art. 14, (Dec. 19, 1966), S. Exec. Doc. E, 95-2 (1989), 999 U.N.T.S. 171; Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 22, 1984, 213 U.N.T.S. 222; see also American Convention on Human Rights, (Nov. 22, 1969), art. 10, 1144 U.N.T.S. 123, 147.

[41] INDIAN CONST. art. 51.

[42] Visakha v State of Rajasthan, A.I.R. 1997 SC 3011.

[43] Restatement (Third) Of Foreign Relations Law of the United States § 102, cmt. (c)

[44] International Convent on Civil and Political Rights, 1966, Art. 9 (5).

[45] S/RES/1373 (Sept. 28, 2001), https://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf.

[46] Ministerial declaration on the issue of combating terrorism, S/RES/1456 (Jan. 20, 2003), http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/1456%20%282003%29.

[47] Routinization of the Extraordinary- A Mapping of Security Laws in India, Asmita  Basu,  (Nov. 01, 2009), South Asians for Human Rights,  http://www.southasianrights.org/wp-content/uploads/2009/10/IND-Security-Laws-Report.pdf.

[48] Khatri II v. State of Bihar 1981 (1) SCC 627.

[49] Rudul Shah v Union of India 1983 (4) SCC 141.

[50] Black’s Law Dictionary (2nd ed.).

[51] Smt. Nilabati Behera v, State of Orissa AIR 1993 SC 1960.

[52] Rethink: Police to revoke UAPA charges in 42 cases, Times of India, (Apr. 10. 2017), https://timesofindia.indiatimes.com/city/thiruvananthapuram/rethink-police-to-revoke-uapa-charges-in-42-cases/articleshow/58258448.cms.

[53] Compensating The Wrongly Convicted, The Innocence Project, (Dec. 07, 2008), https://www.innocenceproject.org/compensating-wrongly-convicted/.

[54] D. K. Basu v. State of West Bengal (1997) 1 SCC 416.            

[55] Arguing Counterterrorism: New perspectives 195, Routledge Critical Terrorism Studies, University of Otago, New Zealand, (ed. Daniela Pisoiu).

[56] Guilt by Association: UAPA Cases from Madhya Pradesh, A report by Jamia Teachers’ Solidarity Association 8, (2013).

[57] 1st People’s Tribunal on Innocent Acquitted, a Report of the Jury: Towards a Framework for Compensation & Rehabilitation for Victims of Wrongful Prosecution/ Conviction 4, (June. 27, 2017).

[58] There Must Be a Price to Pay for Wrongful Convictions, Sumanta Banerjee, The Wire (November 28, 2019), https://thewire.in/law/cops-judges-andterrorists.

[59] Stamping Out Rights the Impact of Anti-Terrorism Laws On Policing, Commonwealth Human Rights Initiative, 45.

[60] Prevention of Terrorism Act 2002, Section 58.

[61] N Manoharan, Trojan Horses: Counter-terror Laws and Security in India, 44(46) Economic and Political Weekly 20, 20-24, (2009).

[62] Shylashri Shankar, Courting Security without Liberty? Anti-Terror Cases and Minorities in India 2.

[63] People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580.

[64] The Unlawful Activities (Prevention) Amendment Act 2008; Ravi Nair, Repeating Past Mistakes, 44 (04) Economic and Political Weekly, 13 (2009).

[65] Why Are Few Terrorists Executed in India? Hari Kumar, The New York Times, (Nov. 22, 2012).