Tuesday 22nd Jan 2019
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UAPA Provisions More Draconian Than TADA/POTA



It is only after the 9/11 attacks that harsh and strict laws were made compromising with several democratic rights that people used to enjoy. It was decided that for greater good of people and to contain terror and terror-related activities countries must have laws that would deter the perpetrators. Most of the laws gave free reign to the police and security agencies that they could even pick up people on mere suspicion and put them behind the bars, claiming security of people. However, even after such provisions and draconian laws terrorism could not be countered and instead, security agencies and police started misusing the laws for their own benefit. Ever since these laws were introduced one can witness a large number of youths illegally picked up from various places across the nation and then falsely and maliciously implicated under various sections of these laws only to be released later citing the paucity of evidences.

To throw light on how the police and security agencies misuse the terror law like UAPA (Unlawful Activities Prevention Act), AIMMM (All India Muslim Majlis-e-Mushawarat) invited Mehmood Haidar Pracha, a renowned advocate who recently succeeded in getting bail for Mr. Syed Mohammad Ahmed Kazmi. The most astonishing thing that came across while unearthing the case of Mr. Kazmi was that many of the procedures that are a must to perform before taking the person into custody were circumvented and no one even bothered to look at them, he said. “In most of the cases, lawyers do not handle them with full honesty and intellect,” he lamented. He further lamented the fact as to how the police and the lower judiciary create an atmosphere around the accused such that the one who shows sympathy to the accused is seen as unpatriotic and people are compelled to say against the victim.

Talking about the modus operandi of the police, he said that the police threaten the family of the person not to report that they have illegally picked up the person or else they would frame the person and not spare him. However, one must not fall into such a trap and report the case immediately so that instead of proving the innocence of the victim first, the police become answerable first as to why they picked up the person without reporting the matter to the magistrate.

Many people are unaware of the fact that the police have to maintain a Police Diary which contains everything that they did during the whole day and the magistrate has to sign every single page of that diary. Hence if we report the picking up by the police, they would not be able to detain the person illegally and if they detain, their case before the court would be weak because they themselves violated the law by not reporting arrest the very day.

Another trick of the police is that they arrest 3-4 people at a time and try to frame them in a certain crime. They compel one of them to become their witness by promising less punishment or agreeing to free him. This is their trick and the innocent person falls into their trap and takes the responsibility of the crime which he never did, just for the sake of getting freed and out of jail. One must be very cautious regarding this as becoming their witness means that the person is accepting that he did the crime, which he never did. It also makes his life difficult as the police would then frame him in any other future or past event as he himself accepted his connivance in the crime. The second effect is that it makes the case of other three persons weak as the police now have a witness to prove their charge.

Police harass the person by putting him behind the bar even after the 90 days of arrest and asks for fresh extension of another 90 days for filing the charge sheet. Pracha said that the police cannot straight away ask for another 90 days of remand as it has to explain the reason for every single day after 90 days as to why they want the remand. It is the provision in the law that the court cannot reject the bail after 90 days if the charge sheet has not been filed. He further said many things are happening which the law does not permit and hence are baseless right from the very beginning.

He stated that the magistrate courts are not at all entitled to hear the cases of UAPA and such cases can only be heard in Special Courts, hence all the proceedings in the magistrate court becomes invalid. He urged that the need is now to become offensive and not defensive and look out for the loopholes in the investigation. The lawyers should look out for the lacunae in the police investigations and where they violated the law. Then it would become very easy to fight the case of the innocents who are being framed.

The amendments in the UAPA appear very draconian. The amendment claims the banning of the organisation from two years to five years. It also says that one can be booked under UAPA if he has any unaccounted money. This very amendment makes it more draconian than TADA and POTA, he added.

As for the solution, Pracha said that those officers who wrongly arrest the innocents should be booked under UAPA as they indirectly helped the perpetrator by nabbing another person instead of the real culprit and allowed him to roam freely. Hence the guilty officers should be booked under UAPA after the innocents are proved innocent. In the end, he announced that his team is willing to take up the case of anyone who is framed in such false cases for free. He mentioned that at present he is handling the case of Fasih Mahmood and hopes that soon they will succeed.

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