The Twisted Arm of the Law

The Twisted Arm of the Law
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Abuses of the Unlawful Activities Prevention Act in Kerala

NADIR KP, 28, has thick curly hair and an unkempt beard. Known to friends as Nadi Gulmohar—the last name taken from an online Malayalam literary magazine of which he was once the editor—is a writer, filmmaker and back-packer who is struggling to refute the Kerala Police’s charge that he’s a Maoist. A year ago, he wrote a critique of Maoism in the weekly Mathrubhumi, arguing that it was incapable of addressing the complexities of a caste-and-class ridden society, but the police say he was part of a group of Maoists who on March 3rd, 2015, held a tribal colony in Aralam, Kannur district, at gunpoint. Nadi claims he has never been to Aralam. His was not among the names in the FIR lodged 12 days later seeking to charge six intruders under India’s Unlawful Activities Prevention Act (UAPA) and the Arms Act, both of which cover armed insurgency. Nadi’s name popped up in the case only on December 18th, 2016, the day he was picked up by cops in Kozhikode while visiting Kamal C Chavara, a fiction writer on whom the police had slapped a sedition charge for allegedly having insulted the National Anthem. After 24 hours of interrogation, Nadi was let go. The police had no evidence against him. But a couple of weeks later, the police named him as an accused in the Aralam case. Since it’s a UAPA charge, he was not entitled to anticipatory bail.

This is not the first case in Kerala that has drawn attention to the law and its draconian provisions, seen by critics as all too easily turned into a tool to browbeat innocents, especially those with inconvenient opinions. After an outcry among human rights activists, the state government has decided to review all UAPA cases. Kodiyeri Balakrishnan, the CPM’s state secretary, has stated that the Act should be invoked only to book those involved in acts of terror. Loknath Behra, the state police chief, has issued fresh guidelines for registering cases under UAPA and under the IPC’s section 124A (sedition): there needs to be ample evidence and the approval of the district police chief. On how the earlier cases are to be reviewed, however, there is no clarity. The police have been told that a panel of legal experts would assist them. But with basic data missing, officers say they are at a loose end. Unofficial estimates suggest that the state has 190 accused under the Act in 80-85 cases.

Among the infamous ones is that of Gouri, a 26-year-old Tribal woman, a Katttunaykkar of Wayanadu, who was arrested last May for putting up posters calling for a boycott of Kerala’s Assembly polls. She is a member of Porattam, said to be a Maoist front, but, as advocate Kaleeswaram Raj argues, “Being a Maoist sympathiser is not illegal in India. The Supreme Court has made it clear through more than one judgment.” Adds Manu Wilson, another lawyer, “A call for boycotting polls is not illegal. If you feel that none of the candidates is competent enough, you have every right to go for a public campaign on the same. It’s a right guaranteed by the Constitution.” Agrees Alexander Jacob, a former director general of police: “It is strange to see someone arrested for making a call to boycott an election when we have NOTA on the ballot.” Yet, charged with being a member of a terror group, Gouri had to spend 190 days in jail before she got bail. MN Ravunni,78, a senior leader of Porattam—which, while professing Maoist ideology, is neither banned nor among the ten outfits listed as ‘unlawful’ by the UAPA—was also behind bars for 35 days.

In another instance, observers point to the twin cases of Salafi preacher Shamsudeen Palathu and the Hindu Ikya Vedi leader KP Sasikala, both of whom had made hate speeches, available on YouTube. The complainant against both was Shukkur of Lawyer’s Forum, affiliated to the Indian Union Muslim League; but while the police booked Sasikala under Section 153A (for inciting communal disharmony), they charged Palathu under the UAPA as well. “The police ignored further evidence I submitted against [Sasikala],” alleges Shukkur, who believes the cops have double standards for the same offence.

What makes the UAPA particularly harsh are the amendments made after the 2008 Mumbai terror attacks. These broadened the definition of ‘terrorism’ to include ‘any act of whatever nature’ in the purview of the Act, extended to 180 days the period for which a person could be detained without charges, and took away the Judiciary’s power to grant anticipatory bail. In effect, the presumption of innocence-until-proven-guilty has been dispensed with. In a 2010 report, Human Rights Watch observed that ‘counter terrorism efforts by India in response to the Mumbai attack violate basic rights, further alienate communities and serve as a recruitment tool for militant groups’.

Thushar Nirmal Sarathy, a High Court lawyer who often handles cases against Maoist sympathisers, was arrested in January 2015 for possessing ‘pro-Maoist’ literature. “All were documents available in the public domain,” he claims, “The intention is to control and restrict the activities of organisations and individuals by trapping them in such cases. Hence the police are not bothered about evidence.”