Mohammed Ilyas, 38, and Mohammed Irfan, 33, were arrested in August 2012 by Maharashtra's Anti-Terrorist Squad under the Unlawful Activities (Prevention) Act (among other charges) and accused of being linked to terror outfit Lashkar-e-Toiba. After being in jail for nine years, they were cleared of all charges by court, owing to lack of evidence, and released on June 2021.
This is neither the first time or the last that UAPA has made headlines for alleged wrongful arrest. In fact, this month, police in Tripura are facing ire for invoking UAPA against 102 social media account holders, including those of journalists and activists, over alleged clashes and attacks on mosques in Tripura. The Editors Guild of India released a press statement expressing their shock over the actions of the Tripura police.
Each year (between 2014 and 2020), on an average, 985 cases under UAPA are registered and the number of pending cases rise by 14.38% every year. Moreover, an average of 40.58% of the cases up for investigation in the seven years were sent for trial and 4.5% of them are completed.
FactChecker has analysed National Crime Records Bureau's (NCRB) data on arrests, trials, chargesheets, and more for seven years (2014-2020) made under UAPA. We intended to assess data dating back to 2010, but NCRB's Crime in India reports from between 2010 and 2013 do not have any mention of UAPA.
Before we delve any deeper into this data, let's first understand the law and its usage.
What is UAPA?
The Unlawful Activities (Prevention) Act was first passed on December 30, 1967 for the "effective prevention of certain unlawful activities of individuals and associations, [and for dealing with terrorist activities], and for matters connected therewith".
The Act defines an unlawful activity as any action that is taken by an individual or association, "whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise", which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; causes or is intended to cause disaffection against India; and which is intended or supports any claim to bring about the cession or secession of a part of the territory of India.
The original Act dealt with "unlawful" acts related to secession, the anti-terror provisions were added in 2004. The Act gives absolute power to the Centre, which can deem an activity as unlawful by way of an Official Gazette and declare it so.
The National Investigation Agency, which was formed in 2018, is central counter terrorism law enforcement agency. Till July 2019, an officer not below the rank of DSP or equivalent was competent to investigate the offences under UAPA. However, after Lok Sabha passed the Unlawful Activities (Prevention) Amendment Bill, 2019, empowered officers with the rank of inspectors and above to do the same.
7 years, Around 7,000 cases
According to NCRB's records, 6,900 UAPA cases were reported between 2014 and 2020. This means an average of 985 cases were reported each year. In the seven years, 2019 saw the highest number of cases — 1,226 — followed by 2018 (1,182 cases). This number dropped by 35% to 796 in 2020. Note: Each case can have more than one accused.
The number of cases pending investigation is continuously rising at an yearly average pace of 14.38%. The cases pending investigation were 1,857 in 2014, which rose by 37% (highest one-year jump) to 2,549 in 2015 and now, according to latest data, the number was 4,021 in 2020.
While the NCRB has released data on cases chargesheeted for all the seven years, but for the 2014, 2015 and 2016, it has not broken the consolidated data into: cases chargesheeted out of cases reported during the year and those from previous year. Between 2017 and 2020, on an average, 165 cases were chargesheeted every year, which is 16% of the average number of cases reported in these years.
Less Than 30% Undertrial Cases See Conviction
NCRB categories undertrial cases in to two:
· No. of cases pending trials from previous year, and those sent for trial this year
· No. of cases in which trials were completed, those that were disposed off without trials, and those still pending trial at the end of the year
In the seven years (2014-2020), an average of 1,834 cases were sent for trials, which is 40.58% of average yearly cases up for investigation (4,250). But, every year, on an average only 4.5% of them reach completion.
In these cases, the accused can either be convicted, discharged or acquitted. If an accused is discharged, they can be rearrested after further inquiry since discharge usually means that there is no prima facie evidence against the accused.
Between 2014 and 2020, of the total cases that saw an end of trial, an average of 72.4% were discharged or acquitted and 27.5% saw convictions. In these seven years, 493 people have been acquitted, 57 discharged and 253 convicted.
87% of Arrests in Six States
Under UAPA, between 2014 and 2020, 10,552 people were arrested and 253 were convicted. This means, on an average, 1,507 people were nabbed each year and an average of 36 people were convicted. Those convicted can be from cases reported during the same year or cases pending from previous years.
In 2015, Manipur accounted for 61.3%, of the arrests made under UAPA and gradually this ratio dropped to 19.81% in 2019. Similarly, 11.34% of the total UAPA arrests made in the country were in Assam, and that dropped to 5.75% in 2020. But in Jammu & Kashmir, it's the opposite: 0.8% in 2015 to 11.6% in 2019.
Other states that contribute majorly to the UAPA arrests are Bihar, Jharkhand, and Uttar Pradesh. Between 2015 and 2019, 7,050 people were arrested under UAPA. Of these, 30.6% were arrested in Manipur, 19.8% in Uttar Pradesh, 14.22% in Assam, 8.04% in Bihar, 7.31% in Jharkhand, and 7.16% in Jammu & Kashmir. This shows that these six states saw more than 87% of the total arrests in the country in the past six years.
(State-wise data on arrests under UAPA were not available for 2014 and 2020)
Each year, during 2014-2020, an average of 4,250 UAPA cases are queued up for investigation and by the end of each year, an average of 3,579 cases, or around 85%, are still pending investigation.
The NCRB data sheds light on the amount of time UAPA cases are on standby owing to pending investigation. At the end of 2020, 4,101 cases were still pending investigation, but 44.33% of them or 1,818 cases had been awaiting investigation for more than three years and 34.01% or 1,395 cases had been pending for 1-3 years. In the last four years, yearly an average of 42.42% cases awaiting investigation are 1-3 years old and 33.4% are more than 3 years old.
In 2020, 398 cases under UAPA were chargesheeted and 63.56% of these chargesheets were filed within a year, 27.88% were filed in 1-2 years. In the last four years (2017-2020), 25% of the chargesheets filed were submitted in 1-2 years and 29.3% were filed in 2-3 months.
Similarly, an average of 1,834 cases were sent for trial each year between 2014 and 2020 and 95.4% or an average of 1,748 cases were still pending trial at the end of the year. But, data from 2017 shows that in the last four years, 43.02% of the pending cases have been awaiting a decision for 1-3 years, 17.2% for 3-5 years and 9.31% for more than five years.
The law has drawn criticism from Supreme Court judges on several occasions. Former Supreme Court Justice Deepak Gupta had said that UAPA should not remain in its current form and another SC Justice DY Chandrachud had said, "UAPA should not be misused for stifling dissent".