umar khalid


With the recent acquittal of former Delhi University Professor G.N. Saibaba after a torturous 10 years of imprisonment under the Unlawful Activities Prevention Act (UAPA), we take a look at one of the most important tools in the market of India’s barely-there-democracy: the UAPA.

In the Athenian State of 621 BCE, lived a statesman named Draco. Draco prescribed death for all criminal offences. Laws that were written in blood, not ink. Think of the word ‘draconian’ named after this infamous statesman, but in the Indian context, and perhaps what comes to mind is the notorious Unlawful Activities (Prevention) Act (UAPA) of 1967. 

Student activist Umar Khalid spent a total of three years behind bars in Tihar, with his bail pleas rejected consistently. The case moved from bench to bench. 84-year-old Stan Swamy, booked under the Bhima Koregaon case during his imprisonment, had asked for a sipper and straw in jail, citing Parkinson’s disease. It took the authorities a month to approve his request. On July 5, 2021, he passed away in jail, still awaiting trial. Journalist Siddique Kappan, on his way to cover the Hathras rape case, was arrested and detained similarly for a period of two years without trial. 

What brings these cases together is UAPA. Stringent conditions for bails (the accused will not be given bail if the first impression of the court is that they are guilty), the ability to declare an individual ‘terrorist’, and detention without producing any incriminating evidence have ensured the overturning of the precept of innocent before proven guilty. The investigating agencies are allowed to take up to 180 days even to file a chargesheet, which, in the case of Kappan, he claims to never even have received firsthand.

The process thus becomes the punishment. The asymmetrical power balance between citizen and state is clearly exploited to the citizen’s disadvantage. Dissecting the acquittal judgement of Professor G.N. Saibaba, Karen Gabriel, and PK Vijayan write for The Quint that the law comprises both the set of legislation that the state has to enact and uphold as well as the rules of procedure that the state must adhere to while doing so. They assert, “Procedure is an invaluable protective measure, not an incidental convenience.”

A Brief History

In the year 1967, the Indira Gandhi administration sought to bring out a law against the secessionist activities that the government observed in the country. The Parliament thus passed the Unlawful Activities Prevention Act. What initially emerged as legislation to counter the problem of secessionist tendencies, however, would quickly assume an altogether different colour. 

After the Prime Minister’s death and with the advent of the Punjab insurgency, the Terrorist and Disruptive Activities Prevention Act (TADA) was introduced. Criticised widely by human rights organisations for its arbitrary tendencies to centralise the onus of justice, it was later withdrawn. TADA trickled down in 2001 to POTA (the Prevention of Terrorism Act) in 2002, which met with concerns of misuse and was scrapped by the UPA government in 2004. The provisions of POTA, however, were in essence transferred onto the UAPA, which was the first introduction of anti-terrorism into the primarily anti-secessionist legislation. The central government could now overlook rules of evidence when it came to interception of communication and vested in its hands the power to declare any organisation as a terrorist organisation without trial. 

In 2008, the Act was further amended to include longer police custody, longer jail time, and harder bail provisions. The latest and most important amendment in 2019 empowered the NIA further and gave the government powers to declare individuals terrorists. 

But It Works, Right?

The hardlined stringency should then naturally warrant efficiency in curbing the “disturbances” that it claims to protect us from. The Home Ministry’s 2020 report, on the other hand, tells us that only 212 of the 24000 convicted in UAPA cases in 2016–2020 were found guilty. As Kappan puts it, “a conviction rate of less than 3%.”

Acquitting DU professor G. N. Saibaba, who has been in prison for 3600 days, the Bombay High Court noted:

No evidence has been led by the prosecution by any witness to any incident, attack, act of violence, or even evidence collected from some earlier scene of offence where a terrorist act has taken place, in order to connect the accused to such an act…

The court further stated that there had been an evident “failure in justice” in the flouting of mandatory provisions in Saibaba’s case. The appalling conditions of his imprisonment, along with those of many others, lead one to wonder whether the crushing impact that callous state persecution has on an individual’s life can ever be undone with mere acquittal. 

The persecution of intelligentsia, which asks difficult questions of institutions, is no new phenomenon. Considering, however, that as we function under that nimble concept of what is known to some of us as a democracy, the state would do well to clothe its atrocities better and be less conspicuous about them. The UAPA, with its in-your-face authoritarian tendencies, does not seem to be helping in that front. 

Read also: The Donkey Dance of UAPA: Criminalising Dissent in a Hollowing Democracy

Deevya Deo
[email protected]

Fifty-three years ago, Atal Bihari Vajpayee called this law a “donkey that had been made to look like a horse.”
Today, it still remains horrifyingly omnipresent in the working machinery of the present regime, flexing its muscles by using the criminal justice system and draconian laws to strike terror against journalists, human rights activists, students, or for a matter of fact, anyone opposing its fascist policies.

“For the longest time, I would pray for his release. But now, I am praying that he doesn’t die. The way he is being treated, and with his worsening condition, I worry he might die in jail,”

said Sanjida, wife of the 28-year-old Atikur Rehman who was arrested along with Kerala journalist Siddique
Kappan while on their way to Hathras in 2020 to report the incident of the gang-rape and death of a Dalit
teenager by upper caste men. Rehman now lies “partially paralysed” and “highly disoriented” in a ward
at Lucknow’s King George’s Medical University (KGMU) hospital, and Kappan still remains in jail, two years
with no sign of bail. The “sensitive nature of the case” could be the reason, says his attorney, why no one
is willing to act as his surety

Furthermore, Mohammed Zubair was arrested after a complaint alleged that the AltNews co-founder had hurt religious sentiments, while Umar Khalid and numerous other anti-CAA activists were implicated in fabricated criminal charges related to the Delhi riots. These are only a few of the numerous incidents of attacks on media professionals, particularly the independent media, that have occurred in India during the past few years. Since the BJP came to power in 2014, the number of persons who are being persecuted for their identification and commitment to fighting for democratic and progressive rights has dramatically increased. From the 2018 Bhima Koregaon arrests and the 2020 CAA protests to the most recent arrests of Teesta Setalvad and Mohammad Zubair, the current leadership is hell-bent on locking up anyone who speaks unpleasant truths and exposes their lies.

According to some, democracy is not just a pipe dream; it is a real idea whose fundamental components are listed in the preamble: social, economic, and political justice; freedom of speech and religion; and equality of status and opportunity. This regime has discovered that, rather than explicitly abolishing democracy, another, less obvious way to do so is to completely deny the people’s rights to social, economic, and political justice, to
severely restrict their freedoms of expression and thought, to suppress their right to practice their religion, and to give up their commitment to the ideal of a society in which everyone is treated equally.

UAPA, the Unlawful Activities (Prevention) Act, has been abused by successive governments for decades, transitioning from an anti-secession law to an anti-terrorism law. Criminalising dissident views and actions, this act blurs the line between political dissent and criminal behavior, while engaging in a violation of the fundamental right to association. Due to this, political opposition is severely criminalised as some ideologies, groups, and opinions end up being labelled as unlawful. As a result, certain organisations that contest the legitimacy of the State and the ruling classes become targets of political witch hunts.

Take the case of Umar Khalid, who is “so dangerous an offender that he cannot be released on bail” and has been kept in jail for the last two years without any concrete evidence except for an alleged “meeting of minds”
which schemed the Delhi riots. Other police evidence includes a speech that is available to the public but does
not incite violence, testimonies from witnesses that differ from the police, and communications from WhatsApp groups that discussed organising protests against CAA, where he was hardly active. The irony that remains is that the riots that Khalid is accused of starting claimed the lives of over 53 people, the majority
of whom were Muslims. Similarly, the majority of the 18 people who were accused of hatching a plot to foment
racial unrest and were charged with terrorism under the UAPA, as well as murder, sedition, and over two
dozen other crimes under the Indian Penal Code, 1860, are also Muslims. Additionally, some of the remarks
made by several Delhi courts about police investigations into these riots stated these investigations to be ‘absolutely’ evasive,’ ‘lackadaisical,’ ‘callous,’ ‘casual,’ ‘farcical,’ ‘painful to see,’ and ‘misusing the judicial system.”

One also comes across bizarre cases, like in Kashmir, where 10 young men were booked in September under the same law because the police alleged that they were playing a cricket match in the “memory” of a militant
who was killed last year. Explanations like these boggle one’s normally functioning brain in ways not known
to humankind. What UAPA simply means is jail without bail and without a trial, on the grounds of little to no
evidence. One section of the Act says, “The accused must be informed of the grounds of arrest as soon as may
be,” meaning that the person who is being arrested might not even know why they are being arrested and the
arresting officer can take their sweet time in informing them as to why to they are being sent to jail.

The pattern is evident. Not merely actions, but also any anti-government beliefs are being criminalised. The state cynically employs investigations as weapons, turning an already unjust criminal justice system against those who oppose the state’s unlawful policies. As a result, the so-called inquiries into the Delhi Riots actually
result in the targeting of anti-CAA activists, while Bhima Koregaon is used as a cover to attack Dalit
intellectuals as well as human rights advocates and attorneys.

Aayat Farooqui

[email protected]