Guilt by association and insinuation (Need to read down the UAPA)

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Guilt by association and insinuation (Need to read down the UAPA)

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• McCarthyism of US in 1950s: The public was gripped by a mass hysteria called “McCarthyism”. It was started by Senator Joseph McCarthy. Any one suspected of left wing sympathy could be harassed, suspended, dismissed, arrested and humiliated! Mood was corrosive, Laws were broadly worded, and Judges weren’t immune either.
• End of McCarthy: Internal contradictors brought him down, but “McCarthyism” became synonymous with persecution of dissent. But it seems to arrive in cycles
• How to avoid its recurrence? Scholars argue that when a period of intolerance arrives, any law that’s broad enough (giving discretionary powers to the State) must be interpreted by Courts narrowly. The line between fundamental rights and criminal conduct must be specifically defined.
• The draconian UAPA: The Unlawful Activities Prevention Act allows pre-chargesheet detention upto 6 months, impossible bail, long trials, and years of jailtime. The most dangerous thing about UAPA is very vague definition of what’s criminal, and the huge discretion with the Police, Prosecution and the Judge.
• The Saibaba case: Prof. G N Saibaba was awarded life imprisonment on grounds that were largely shaky and questionable. His membership of CPI (Maoist) and Revolutionary Democratic Front (RDF) was “proven” using proofs that were not solid enough.
• UAPA facilitates sweeping generalisations: 

1. Vagueness : The law doesn’t define what is a “Front Organisation”. 
2. Overlapping terms : Section 20 criminalises membership of a terrorist organisation, Section 38 uses the term “association with a terrorist orgn.”, and Section 39 criminalises “support” to a terrorist organisation. 
3. Confusing definitions : Many areas of unlawful activities and terror activities overlap.

• Indian criminal legal system: It is based on – “I am guilty for a clearly-defined offence I have committed”. But the UAPA is the McCarthyist world of “front organisations, associations, support, inviting support” etc. Judges end up seeing disconnected pieces as solid evidences! Focus shifts from individuals and crimes to groups and ideologies.
• S.C. pushback: It did say that “membership” must only mean active incitement of violence, and not possession of books or attendance at meetings. It is time to read down the UAPA and end the McCarthyism.
• Summary : Laws like the UAPA are offering wide discretionary powers to the system to interpret against an individual, and such laws remind us of the McCarthyism in USA, an age best never seen again.

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