No consultation before shifting cases to NIA

Kanchan Nanaware passed away in January 2021, 2021, her death caused by a blood clot. She had spent six years and four months in jail, yet her plea for medical bail was denied by the court. She was a young student activist from Maharashtra, arrested in 2014 and charged with being a member of the banned Communist Party of India (Maoist). Booked under the draconian Unlawful Activities Prevention Act (UAPA), there is no information about the trial, if there was a trial and whether it was conclusive.

Her death in judicial custody finds a mention in a report compiled by the People’s Union for Civil Liberties (PUCL), a human rights organisation, on UAPA cases between 2019 and 2022. The study, a first of its kind, is based on details shared by the National Investigation Agency (NIA) on its website, and the annual reports of the National Crime Records Bureau (NCRB). The NIA was set up in 2008 following the terror attack on Mumbai. Sequels of this PUCL report will follow with details from every state.

Even this preliminary report is disquieting. It finds, for example, that like the Enforcement Directorate, the NIA’s conviction rate between 2015 and 2020 has been rather poor. Judged by the number of persons acquitted, the conviction rate of the NIA comes to 2.8 per cent, implying that in 97.2 per cent of the cases, the arrested are either innocent or the NIA fails to gather adequate evidence to support the case against them.

The case of Bashir Ahmed from Kashmir is illustrative. Ahmed, a Kashmiri, had gone to Gujarat to attend a four-day camp on post-cancer care in 2003. He was arrested on the charge of having links with the Hizbul Mujahideen. Acquitted after spending 11 years in jail, the NIA court in Vadodara had this to say: “Prosecution relied on emotional arguments and a person cannot be held guilty merely on its fear of anarchy.”

As many as 121 tribals were similarly charged under UAPA in 2017 for their alleged involvement in an ambush on a CRPF patrol in Dantewada, Chhattisgarh. They were acquitted in July this year by an NIA court after spending five years in jail. “No charge is found to be substantiated,” observed the court.

Between 2015 and 2020, NIA arrested 8,371 persons under UAPA—most of them from the states of Assam, Jharkhand and Tamil Nadu—in 5,924 cases under UAPA registered by the agency. The figures can be much higher, cautions the PUCL study, because of the absence of state-wise and year-wise data of people arrested, final reports filed, trials completed, people released on bail and those who are acquitted.

Calling upon both NCRB and the NIA to share the details more consistently (NIA website arbitrarily shares more details of some cases than others), the study points to the difficulty in the methodology followed by the NCRB in considering the ‘principal offence’. If a person is charged with both rape and murder, for example, the study says, the NCRB classifies the case as ‘murder’ because it carries higher punishment. Similarly, when a person is charged under UAPA along with other charges, the NCRB data do not clarify what is the principal offence and if some people were charged under UAPA but classified under another crime.

Despite such opacity, the study points to two more disturbing trends. In a large number of cases under UAPA, it found, section 18 of the UAPA Act had been invoked. While the section deals with ‘conspiracy’, conspiracy itself includes ‘agreement’ to commit a violent act. The flexible and arbitrary interpretation of the clause enabled the NIA to arrest political dissenters and those who publicly oppose the policies of the government, the study points out. In 64 per cent of the UAPA cases involving conspiracy, no incident had been reported. In the remaining cases, the range of ‘incidents’ included bomb blasts as well as destruction of public property.

The other ‘disturbing’ part of the UAPA is the unbridled power it gives to the Union government. The Union ministry of home affairs (MHA) is empowered to transfer any case being investigated by the state police to the NIA. The Bhima-Koregaon case, which was being investigated by Maharashtra police, was abruptly transferred to the NIA after the MVA government came to power.

The states apparently do not have any say in the matter and there is no clarity if the states are consulted before transferring the cases to the NIA. There is certainly no provision that calls for their consent.

Highlighting the arbitrary nature of such transfers, the PUCL study refers to a case in Tamil Nadu, instituted in Madurai against a person for a Facebook post. After two years, the case was transferred to NIA without any public explanation.

Significantly, of all the UAPA cases handled by the NIA, as many as 88 per cent are found to have been transferred from the states on the orders of the MHA. Only 12 per cent of the cases were initiated suo motu by the NIA itself.

Besides criminalising political dissent, the UAPA, which was made more stringent after 26/11 Mumbai terror attack, has made obtaining bail in so-called terror cases almost impossible, the PUCL report underlines. The UAPA also allows the NIA to bypass several checks and balances provided in the Indian Evidence Act. The accused are presumed to be guilty based on the NIA’s interpretation. But the agency is not obligated to share charges, evidence and witnesses with the defence team, skewing the trial.

It is interesting to note that while it is commonly believed that UAPA is meant to target ‘terrorists’, the Act includes a much broader spectrum of offences, including human trafficking, cybercrime, narcotics trade, extortion rackets, contract killings and land grabbing. Why can’t these crimes be investigated and prosecuted by the state police, which can seek help from the NIA and the CBI depending on the requirements of each case?

The study accuses the NIA of boosting its conviction rate by convincing the accused for plea bargaining. Under plea bargaining—not recognised by the Indian law—the accused are encouraged to confess on the promise that they would be let off with lighter sentences. Many of the accused, seeing no light at the end of the tunnel, are tempted to go for it, the study says.

A staggering 80 per cent of all UAPA cases between 2009 and 2020 have been lodged after the BJP government led by Narendra Modi stormed to power in 2014.