80 per cent of NIA cases registered under current BJP govt, reveals study

A study of the cases handled by the National Investigation Agency (NIA) showed that of the total 357 cases registered under the Unlawful Activities (Prevention) Act between 2009 to 2022, 80 per cent of all the UAPA cases were registered and investigated during the present BJP government led by Prime Minister Narendra Modi, while the remaining UAPA cases were registered and investigated during the Manmohan Singh government.

The average number of UAPA cases registered per year by the NIA during the UPA regime (2009 – May 2014) is 13. In contrast, during the NDA regime (May 2014 onwards) the average number of cases registered per year is 34.

Of these 357 cases, only 41, that is 12 per cent of the cases, were registered suo moto by the organisation, while the remaining 316, or 88 per cent of the cases, were transferred to the NIA from various state police departments.

The Central government has total and absolute power in determining whether any investigation should be taken over by NIA, irrespective of whether the state government consents to it or not.

In the study conducted by the People's Union for Civil Liberties (PUCL), it was pointed out that the most contentious use of such wide powers was in the manner in which the Ministry of Home Affairs (MHA) decided overnight to transfer the Bhima Koregaon case in early 2020 from the Maharashtra state police to the NIA only because the Devendra Fadnavis-led BJP government fell and a new MVA government-led by Uddhav Thackeray took charge.

“The validity of these transfers from the state police to the NIA is also suspect since a high number of these transferred cases were not even remotely connected to national security or threat to sovereignty or involved any violence,” the study says. 

An example is a case from Madurai involving a Facebook post on August 15, 2019 in which the accused person remarked as to whether India was truly independent. The case was abruptly transferred from the Tamil Nadu state police to the NIA in 2021.

The arbitrary use of unbridled suo motu powers of the Central government to transfer to itself through the NIA cases from the state police is a serious threat to federal principles.

The study revealed that the maximum number of UAPA cases registered by the state police were from Manipur, Jammu and Kashmir, Assam, Jharkhand and Uttar Pradesh.  

The PUCL study also analysed the use and abuse of Sec. 18 of UAPA which is titled ‘Punishment for Conspiracy’. For an offence of conspiracy, an alleged agreement to commit a terrorist crime is enough to prosecute; the “object” of the agreement need not have occurred. The definition of conspiracy is so wide and elastic that anyone can be roped in.

While examining 238 of the total 357 cases involving charges under Section 18, it was found that in 86 cases (36 per cent), some incident of terrorism occurred, but in 152 cases (64 per cent), no specific incident involving weapons or causing physical injury was reported.

In 64 per cent of cases involving a charge under Sec. 18 of UAPA, the mere allegation of the police that a person was a member of a proscribed terrorist organisation or some recoveries were made from the person of an alleged weapon or explosives or drugs or money is sufficient to arrest the person and be imprisoned for years.

Despite wide ranging complaints about the abuse of UAPA, reliable, comprehensive year-wise data about prosecutions is not readily available. The National Crimes Records Bureau (NCRB) statistics shed light on the poor conviction rate vis-à-vis the near-impossibility of grant of bail in UAPA cases, but even then these annual reports give only bare data without details of stages in the prosecution.

There were 5,924 UAPA cases registered throughout India in which 8,371 persons were arrested between 2015 and 2020.

In 2018 and 2020, only 16.32 per cent and 16.88 per cent of the arraigned people got bail. The figure for 2019 was slightly higher at 32.08 per cent.

However, a closer look at the data reveals that in 2019, in Tamil Nadu, all 308 persons shown as arrested under UAPA were released on bail, which is highly unusual for UAPA cases. If these cases are set aside, the bail percentage is 16.27 per cent.

One of the key indicators of the extent of abuse by the Indian state is the low conviction rate in UAPA cases. The conviction rates based on the number of cases is 25.57 per cent, but the conviction rate based on the number of persons arrested was a lowly 2.8 per cent.

The poor conviction rate of persons arrested in UAPA cases is in line with the conviction rates when the previous anti-terror legislations TADA (P) Act and POTA were in vogue.

Of the 8,371 persons arrested between 2015 and 2020 under UAPA, close to 8, 136 persons constituting 97.2 per cent get acquitted at the end of trial in UAPA courts, but they end up spending years in jail without bail.

“Such high acquittal rates only highlights the fact that most of the prosecutions are devoid of merit and did not warrant initiation of prosecution in the first place, much less under UAPA,” observed PUCL in its report.   

The Indian State has a vast number of anti-terror, criminal laws with which it can quell, contain and counter any activity it deems to be ‘terrorist’ acts, including colonial era provisions like Sec. 121-A (waging war against India) and Sec. 124-A (Sedition) of the Indian Penal Code, 1860 (IPC), Armed Forces Special Powers Act, 1958 (AFSPA), the Unlawful Activities Prevention Act, 1967 (UAPA) 1 and the National Security Act, 1980 (NSA).

Apart from the central laws, many individual states have passed their own security laws which give them even more stringent powers, like the Jammu & Kashmir Public Safety Act, 1978 and the Chhattisgarh Special Public Safety Act, 2005.

Another set of laws were passed ostensibly to control organised crime like the Maharashtra Control of Organised Crimes Act, 1999 (MCOCA) which soon saw various clones in different states like the Karnataka Control of Organised Crimes Act and the Gujarat Control of Organised Crimes Act, 2003 (GUJCOCA).