Modi’s use of anti-terror law draws scrutiny from Indian courts

FILE — Police officers standing guard on Feb 28, 2020, in a neighbourhood shaken by the riots in New Delhi last year. Under Prime Minister Narendra Modi, those charged through the antiterrorism law, called the Unlawful Activities Prevention Act, have typically spent years languishing in jail before their trials have even begun. (Atul Loke/The New York Times)
The two women walked through the gate of India’s notorious Tihar prison raising their fists and chanting protest slogans.

Their release on bail in June after spending a year in custody was unusual given the accusations they face: They have been charged with terrorism.

Natasha Narwal and Devangana Kalita, student activists, were imprisoned under an anti-terror law with roots in the British colonial era that critics say the Indian government is increasingly using to silence dissent.

Under Prime Minister Narendra Modi, those charged through the anti-terrorism law, called the Unlawful Activities Prevention Act, have typically spent years languishing in jail before their trials have even begun. Thousands of people — including poets, political organisers and even a Catholic priest — have been jailed. The law is increasingly being challenged by the courts, which say it is an abuse of power.

The law “makes you guilty unless and until you are able to prove yourself innocent,” said Narwal, a founder of the women’s student collective Pinjra Tod, or Break the Cage.

“Coming out of jail in one year,” she added, “is a miracle.”

Modi’s government has developed a playbook to police dissent and free speech, criminal justice experts have said. Since taking office in 2014, Modi has increasingly relied on laws that give authorities greater powers to detain people and act against those accused of inciting hatred against the government.

The Modi government in 2019 gave itself greater access to people’s online data. Last year, it proposed a law that would make encrypted messages “traceable,” prompting a lawsuit from the messaging service WhatsApp, which said it violated Indians’ constitutional right to privacy.

Officials have succeeded in persuading social media giants like Facebook and Twitter to shut down millions of accounts in India for a wide range of perceived offenses against citizens and the government. Authorities also routinely turn off internet services during protests, pushing India to the top of a list of global offenders tracked by the watchdog group Access Now.

The anti-terror law, which gives judges the right to extend pretrial detention almost indefinitely, has been among Modi’s most repressive tools.

During the prime minister’s tenure, the number of cases filed under the anti-terror law has surged. More than 8,300 people have been arrested and jailed in the past five years, according to official data. There are no reliable official statistics about the use of the law before 2014, but legal experts say the number of cases was negligible.

The government told Parliament in August that only about 2% of cases registered under the law from 2016 to 2019 resulted in a conviction. But even without a conviction, people detained under the law can be jailed for years before their cases go to trial.

“It appears that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the state has blurred the line between the constitutionally guaranteed right to protest and terrorist activity,” the Delhi High Court said in a hearing in June that resulted in the release on bail of Narwal and two fellow activists.

“If such blurring gains traction,” the court continued, “democracy would be in peril.”

Kanchan Gupta, a government spokesperson, defended the law, saying it helps the government ensure the “security of its citizens and protect them from adversaries of the nation.”

Of the people detained under the anti-terror law, the case of the Rev Stan Swamy has stoked particular outrage. Swamy, a Jesuit priest and activist with Parkinson’s disease, died in July at 84 while in custody. He was accused of using inflammatory speech and supporting a Maoist rebel insurgency that has been active in India for decades. He was the oldest person in India accused of terrorism.

Swamy’s death came after his repeated requests for bail on medical grounds were denied. An independent investigation by a digital forensics firm suggested that his computer, which Indian investigators had seized, had been hacked and planted with files. But neither his poor health nor the conclusions of that report were enough to win him bail.

After Swamy’s death, Justice Deepak Gupta, a former Supreme Court judge, said that the anti-terrorism law was being misused and that courts should draw up clear guidelines.

“Are we human?” he asked. “The UAPA should not remain in this form.”

The various iterations of the law have been contentious for more than a century. Officers under the British Raj introduced a precursor to it in 1908 to quell independence movements. In 1967, when India was fresh from wars with Pakistan and China, Prime Minister Indira Gandhi introduced the UAPA to punish groups for “sowing discord.” It prompted an uproar among lawmakers, and a watered-down version was passed.

Over the decades, the law has been amended to address terrorist activity. Investigators relied on it in 2008 to arrest people suspected in the Mumbai terror attack.

In 2019, Modi’s government further amended the law to give officials more power to make arrests on terrorism charges.

“It strikes at individual liberty and grants government powers to name all and sundry as terrorists,” said Dushyant Dave, an Indian lawyer. “There is evidence to suggest that those arrested under the law have been targeted for their political beliefs.”

The students’ release on bail in June signalled growing scrutiny of the government’s use of the law.

Narwal and 18 others face charges for their roles in protests against a divisive citizenship law pushed through by the Modi government that excludes Muslims from a program offering South Asian migrants in India a fast track to citizenship. One protest against the law last year in a working-class neighbourhood of New Delhi descended into clashes between Hindus and Muslims. More than two dozen people were killed.

The police arrested more than 1,800 people who they say played a role in the riots. No one has yet been convicted. During court hearings, judges have criticised the quality of the police’s witness testimony and evidence.

“It is further painful to note that in a large number of cases of riots, the standard of investigation is very poor,” Justice Vinod Yadav, a Delhi high court judge, said in August.

In the order granting Narwal bail in June, a judge questioned the validity of the police force’s case.

India’s clogged court system means the wheels of justice turn slowly. The anti-terrorism law slows things down further.

In May 2020, Narwal and the two fellow student activists were taken into custody. Because of pandemic restrictions, each spent the first 10 days in solitary confinement.

A judge quickly ruled that Narwal had been exercising her democratic rights when she participated in protests earlier that year.

But shortly after, the police announced fresh charges: attempted murder, terrorism and organising protests that instigated deadly religious violence. Narwal, 32, who has said she is innocent, was returned to her cell.

Narwal waited in Tihar, a maximum-security prison, for six months before she was granted her first bail hearing. Prosecutors filed an 18,000-page charge sheet, which took the high court another six months and 30 hearings to process, according to her lawyer, Adit Pujari.

“In a sense, the government had a victory,” Pujari said. “If she was outside, she could have been involved with more protests and spearheaded more issues.”

For now, Narwal has returned to her doctoral studies in Delhi, but the case against her could continue for years. The Supreme Court is considering a petition to revoke her bail.

“We ourselves are prepared for the long haul because the law itself is so stringent,” Narwal said. “You are almost rendered powerless until your trial completes.”

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