How UAPA helped arrest ex-JNU student leader Umar Khalid

Kavita Krishnan, Umar Khalid, Harsh Mander and Yogendra Yadav. Photo imaging/Uday Mohite

After being interviewed for almost 11 hours, ex-student leader of Jawaharlal Nehru University (JNU) Umar Khalid was arrested in the national capital last Sunday by the Delhi Police's Special Cell. He was booked under various sections of the Unlawful Activities (Prevention) Act, 1967, as well as for murder and sedition under sections of the Indian Penal Code (IPC). His arrest stems from the Delhi Police's investigation into FIR 59/20, which deals with an alleged case of "planned conspiracy" behind the riots that rocked North East Delhi in February this year, leaving 53 dead, and over 400 people injured over a period of three days. The Delhi Police's investigation has led to the arrest of 23 persons, who, they claim, were part of a "systemic mobilisation of the crowd to incite violence in the garb of anti-CAA protests." Fifteen of these 23 have been charged under the UAPA, based on "technical evidence" such as WhatsApp chats, which take note of the pattern of traffic jams at anti-CAA protest spots, and interpret it as "the first indicator that there was a conspiracy" due to which the riots erupted.

Last Monday, Khalid was remanded to 10 days of police custody by a Karkardooma district court. Leaders such as Yogendra Yadav (national president of Swaraj India), human rights activist and peace worker Harsh Mander, Kavita Krishnan (CPIML Politburo Member) and others who played a vital role during the peaceful anti-CAA movement last year - and most of whom have themselves been named in disclosure statements by the Delhi Police - condemned Khalid's "witch hunt" under the draconian UAPA. "With deep anguish, we have no doubt in saying that this investigation is not about the violence in February 2020...but on the completely peaceful and democratic protests across the country against the unconstitutional CAA," said one such statement.

Speaking with mid-day, Krishnan said that the disclosure statements against leaders of the anti-CAA movement (such as herself) are "cut-paste statements" that share identical language. "The UAPA is being used to target a peaceful protest like the anti-CAA demonstrations," she said. "The point here is that if Delhi Police is arresting Umar on the basis of disclosure statements, then it can arrest any of us [who have been named in various charge sheets] on the same grounds."

Yadav, who, along with CPIM Chief Sitaram Yechury, was also named in the disclosure statements last week by the Delhi Police as a part of its ongoing investigation into the Jafrabad riots, said that there is a stark difference between simply being named, and that of Khalid's arrest. "In our case, it was only a warning bell and nothing more, but Umar's case is really ominous: he has been formally arrested and charged with conspiracy under the UAPA. FIR 59/20 claims that he was the so-called mastermind behind the Delhi Riots in February and that he hatched a conspiracy for the same. But where is the evidence for all this?"

Krishnan echoed Yadav's sentiment. Claiming that the Delhi Police has a weak case built on the foundation of disclosure statements that are not admissible in court, she said, "Anyone who is active in civil society or student movements in Delhi, has been named in one or the other charge sheets. And this is where the UAPA comes in, because under this Act, the state can get away with any narrative it spins, managing to get a person jailed without trial and keeping him/her waiting on bail for years. This is the speciality of the UAPA." Recalling that Khalid had told him about the custodial torture that he had undergone previously, Yadav said: "For the last several months, Delhi Police have been on a larger mission to criminalise dissent, and the name of the game is to say that the largest democratic protest held primarily by the biggest minority in the country, was actually the cause of violence in February in Delhi, which ironically, led to more Muslims being killed than Hindus."

After Khalid was remanded to custody on Monday, Delhi Police Commissioner SN Shrivastava, along with Deputy Commissioner of Delhi Police's Special Cell Pramod Singh Kushwaha, spoke at a webinar organised by the Delhi Police Retired Gazetted Officers Association; the duo refuted all "false accusations" against the force and reasserted that their investigation was done in consonance with the law. Shrivastava indicated that the large-scale social media outcry was a result of some
of the arrested people (like Khalid) having a strong social media following.

On Wednesday, Krishnan, Bhushan, Syeeda Hameed (former member of Planning Commission of India), senior journalist Pamela Philipose and Nandita Narain (former President-DUTA) gathered at the Delhi Press Club at noon, to "express their collective anguish at the sheer brazenness" with which the Delhi Police had turned the investigation of the Delhi riots into an "inquisition of the anti-CAA protests." Khalid's mother was present for the press conference as well. A statement released by them demanded that the activists booked under UAPA be immediately released, and that a judicial enquiry commission be constituted to "punish the real culprits" behind the February violence, indicating at the likes of BJP leaders Kapil Mishra and Anurag Thakur, who had raised incendiary slogans in the prelude to the riots. However, just a few hours later, the Delhi Police's Special Cell filed a mammoth 17,000-page charge sheet against 15 persons in the conspiracy case. It named United Against Hate activist Khalid Saifi, Pinjra Tod activists Natasha Narwal and Devangana Kalita, ex-AAP councillor Tahir Hussain, and activists Gulfisha Fatima, Safoora Zargar, among others. However, the charge sheet didn't mention Khalid or Sharjeel Imam, both of whom have been arrested under the UAPA with regard to the alleged conspiracy. Their names are expected to be filed in supplementary chargesheets.

Senior advocate Rebecca John told mid-day: "The real problem with the UAPA is the fact that the act is loosely defined. And that can lead to unconstitutionality, whereas if you have crisp definitions, it is easy for both sides [accused and prosecuting body] to deal with." She said that the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act were the three main pillars of jurisprudence that India had inherited from colonial times, and that have "withstood judicial scrutiny." However, the danger lies in the emerging pattern of overtly relying on Special Acts such as the UAPA, instead of the above mentioned three general laws. "This is the real tragedy," she said, "The shift in machinery from general law to special law has created a constitutional problem for us. These Special Acts have created a procedure that violates an individual's constitutional right. The over-reliance on the former is no longer the exception to the rule - it has become the law."

John said that special laws like the UAPA were making it "increasingly difficult for judicial interventions" by eating into the rights of individuals on the pretext of them having committed crimes that violated the country's national security. "But who are the people that are being picked up under these laws? They aren't individuals who have committed acts that affect the sovereignty and integrity of India; they are simply people being targeted for the views they hold and the vocalness with which they express them. In most cases, there is very little tangible evidence of them having committed a violent, unlawful crime, and yet, these people are given neither bail nor a trial date while they are held in custody. The tactic is to tire them out." She concluded: "By making more and more Special Acts, we have managed to not only distance ourselves from time-tested general law, but have also ended up entering a space of loose definitions that can only help agencies - and not citizens."

Tracing its origins to a time when the law was implemented to keep organisations preaching secession in check, like during the Dravidian movement, Bombay HC advocate Ajay Kumar said although the Constitution itself allowed for "preventive detention" of an individual, the term took on a whole new meaning under the ambit of UAPA. "It provides for longer periods of detention and allows the government/investigating authorities a longer time to file its charge sheet while the accused is kept in custody. It also tweaks the rules on evidence by creating certain deeming fictions that results in locking up people for a long period of time. Under existing preventive detention laws, a person can be locked up almost indefinitely and with acts like UAPA, bail becomes impossible when someone is arrested. The accused person will have to keep going to court, where their detention is effectively extended." He added: "Presumption of innocence is not a constitutional right per se... as the standards of evidence are regulated by Parliament. Parliment can create deeming fictions to make this presumption irrelevant."

Kumar pointed out that UAPA doesn't provide for preventive detention.

However, Arun Anand, author of two books on the RSS and currently the research director of a Delhi-based think-tank called Vichar Vinimay Kendra, said that the role of laws like the UAPA needs to be seen in a broader global context of terrorism. "It is important to see through the bogey of false alarms being raised in the name of liberalism," he said. "Unfortunately, our national security measures are often seen through the prism of religion. During the UPA regime, a false bogey of 'saffron terror' was raised, which was an indication that national security laws could be misused to meet political gains. The present government has used UAPA to curb the anti-nationalist activities and it should be appreciated. However, Krishnan said it was PM Modi, who, while fielding Sadhvi Pragya Thakur as the BJP's candidate, had said that "No Hindu can ever be a terrorist," implying that anti-terror laws should be applied only to Muslims or secular individuals - and not to those who commit terror in support of the agenda of a Hindu nation.

Peace activist Harsh Mander said that Special Acts are designed to dilute human rights. "Because the state is seen to be attempting to prove someone guilty, the human rights of the accused need to be carefully protected so that the power of the state does not violate the right of the person to prove his/her innocence," he added. "However, over time, our legislatures have accepted that there are some crimes which are so grave in the pursuit of justice that in these cases, one needs to accept a certain dilution of the human rights of the accused. The vote of the accused is small while weighing it against the greater good of the larger number."

Calling the Delhi Police's investigation into the February riots as both "clumsy" as well as "extraordinary," Mander added: "They are leaking so-called confession and/or disclosure statements under the UAPA, to certain sections of the press, in an effort to carry out their own media campaigns even though it is well known that such statements are made to the police under torture and other forms of intimidation. The UAPA is largely being applied in the context of FIR 59/20, which deals with an alleged conspiracy, and the large majority of the people who have been charged under it, are young people: five of the arrested women are all under the age of 31. All of the accused are being charged as a part of this conspiracy because they had peacefully protested against the Citizenship Amendment Act." He concluded: "I am firmly convinced that when the state has extraordinary laws [like UAPA] pertaining to violating civil rights, it, far from helping the state to catch the
guilty party, it actually allows the state to frame anyone they choose to."

Disclosure statement

Legal term for a 'confession statement' given to the police while the accused is being held in custody or being interrogated. However, disclosure statements are not admissible in a court of law because as they are widely recognised as having been given while the accused is going through torture in custody. For a confession to be counted as evidence under the Indian Evidence Act, the accused needs to make the confession in front of a magistrate

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