Law

Here’s Why the Government’s Power to Ban Organisations Needs Stricter Judicial Scrutiny

There is evidence that the tribunals which are meant to adjudicate bans under the UAPA end up giving far-reaching powers to the government under the Act

maze

The Big Maze. Credit: Victoria Pickering, CC 2.0

When the Prevention of Terrorism Act was repealed in 2004 because of mounting evidence of its abuse, the Manmohan Singh government introduced the Unlawful Activities (Prevention) Act (UAPA) to include ‘terrorist organisations’ within the ambit of an earlier law that already allowed the banning of ‘unlawful associations’.

‘Unlawful associations’ under the UAPA go back to the conceptualisation in the 1960s of organisations involved in secessionist activities, disruption of the sovereignty of India, or in causing of disaffection against India. With the repeal of POTA and the introduction of anti-terror sections in the UAPA in 2004, the two sets of provisions have co-existed side-by-side somewhat uneasily. After the November 2008 terrorist attacks in Mumbai, the law was strengthened once again.

While a comprehensive audit of the amended law is needed to allow us to assess how the new provisions have worked, a new report by the People’s Union for Democratic Rights (PUDR) has attempted a review of the beefed-up UAPA’s impact on ‘unlawful associations’ – the original targets of the 1967 law. Specifically, the report, Banned and Damned: SIMI’s Saga with UAPA Tribunals, is an analysis of the prolonged and troubled relationship between the Students’ Islamic Movement of India (SIMI) and the tribunals established under statute to rule on the legality of repeated government notifications banning SIMI.

Though primarily about the SIMI case, the PUDR study focuses sharply on the law relating to unlawful associations, and the procedure by which they are declared unlawful.

Context

Since the time it was first banned in 2001, SIMI has remained an unlawful association under the UAPA due to seven successive government notifications under the Act. These banning notifications, which are valid for two years, may be challenged before a tribunal, according to the UAPA, which gives an opportunity to the association declared unlawful to present its case. SIMI’s challenges have been rejected by the tribunals six out of seven times. In 2008, the tribunal struck down the ban, saying the government had not provided sufficient evidence. However, the Supreme Court immediately stayed the tribunal’s ruling for the balance of the two-year period, so SIMI remained a banned organisation.

The report conducts a somewhat detailed examination of the orders of three tribunals in relation to SIMI – those of 2010, 2012 and 2014 – to determine whether the UAPA tribunal fulfils its purpose as envisaged under the Act, i.e. to act as a check on the executive’s power to ban organisations.

The report documents charges levelled against SIMI, analyses the functioning of the most recent tribunals, highlighting flaws in the UAPA that come to light as a result of this analysis. Finally, it argues for the repeal of the UAPA.

The report examines the written orders of the tribunals of 2010 and 2012 and draws upon secondary sources to examine critically whether the procedure followed, evidence presented and judicial observations provide a level playing field to the aggrieved or whether judicial review is rendered a mere formality devoid of substance.

Commendations

Though detailed and well-argued, the report is sadly devoid of references to further engage an interested reader. PUDR must nevertheless be commended for its careful analysis of statutory provisions, as well as for highlighting aspects of the UAPA that are rarely studied otherwise. The focus on tribunals is a very important facet of the report, since such aspects of the functioning of the law often escape public scrutiny, being not as easily accessible as, for example, judgments of high courts and the Supreme Court.

The report has brought to light the dichotomous nature of these tribunals – between a civil and a criminal court – between a judicial body and a mere rubber stamp for executive action. On the one hand, a UAPA tribunal has the powers of a civil court; on the other hand the subject matter it deals with is within the purview of criminal law and punishments involve criminal sanctions. Furthermore, as a judicial body independent of the executive, though the tribunal is expected to adjudicate on the validity of the government’s notification, the analysis in the report indicates that in reality the tribunal is far from an impartial arbiter and has almost always been unduly inclined in favour of the government.

The ‘Tribunal Timeline’ in the report is a useful tool demonstrating how earlier tribunals upheld government notifications banning SIMI even in the absence of grounds. Recent tribunals have, however, seen new cases presented before them as evidence, though it is another matter that most of these cases filed in trial courts have led to acquittals.

The Evidence section of the report is also very useful as a guide to the various offences that the government has most often relied on to ban an organisation. From this, we get a useful insight into how loosely ‘terror plots’, ‘membership of organisations’, and ‘banned literature’, have been interpreted.

Terror plots have been used as evidence against an organisation even if the trial is pending in court and it has not been proved that the said organisation was indeed involved in the plot. Banned literature, meanwhile, could mean any kind of document including training tickets, hotel bills, posters, books or receipts.

The use of past cases, confessions before police officers, and acceptance of classified evidence are also striking. When a notification seeks to ban an organisation in 2012, incidents from 2007 should not be relevant, since the organisation (in this case SIMI) was already banned at that time under an earlier notification. Such past cases have, however, been regularly cited by the government and accepted by UAPA tribunals. Police confessions, inadmissible under general laws of evidence, have also been readily accepted by these tribunals, probably since these are ‘civil proceedings’. Sealed envelopes containing classified documents from the government were also admitted as evidence, violating principles of natural justice. These were admitted and various other exceptions were made under the proviso to section 3(2) of the UAPA which empowers the government to withhold any information it deems fit in ‘public interest’.

Consequences

A connection that the report fails to make, however, is between its findings and its demands for the repeal of the UAPA. Though this report, in conclusion, calls for repeal of the UAPA, its focus is not as much on the provisions of the Act (though they are mentioned and scrutinised in sufficient detail), as the mode of functioning of the tribunal established under the Act.

It is true that the shortcomings of a statutory provision are not always apparent from its wording alone; its practical application is a key factor in determining its drawbacks. Often, the strength of a legal provision may rest on its judicial interpretation. Thus, the tribunals discussed in this report, instead of strengthening the UAPA’s weak provisions further weakened them, in effect giving far-reaching powers to the government under the Act.

However, it may be incorrect to state, as the report does, that the Act itself seeks to deprive a section of the population of its fundamental freedoms, without due process. A closer scrutiny may reveal that it is the interpretation and application of the Act, not the Act as it stands today, that requires a relook, particularly since the tribunals have departed from Supreme Court decisions too, as cited in the report (State of Madras v VG Row and Mohammad Jafar v Union of India).

One suggestion towards the end of the report is removing the government’s power to ban organisations altogether. The detailed arguments put forth in favour of this proposal are persuasive, both from the perspective of protecting fundamental freedoms (of organisations banned without justification) and on the premise that banning an organisation creates greater currency for its ideas once it is forced underground. However, the first argument is only valid in the situation that the law is unfairly applied, and constitutes an unreasonable restriction on the fundamental freedoms guaranteed under Article 19 of the Constitution of India. In the event of incorrect application of the law, the solution does not lie in repealing the law. The second argument is socio-political rather than legal, and may be considered counter-intuitive by some.

Although we may not be able to make generalisations from the instance of SIMI alone (a very small sample size of decisions has been analysed), PUDR’s report makes some very pertinent points. This small sample analysed could also point towards a more general and disturbing trend. This report is an excellent starting point and blueprint to conduct wider analysis along similar lines. Providing references for anyone reading the report would make it easy to find judgments and other source material, lending greater credibility and legitimacy to the report – very necessary given its volatile subject matter.

Srijoni Sen is Senior Resident Fellow at the Vidhi Centre for Legal Policy (www.vidhilegalpolicy.in)

Rukmini Das is PhD candidate at the University of Geneva, Faculty of Law and an Associate Fellow at the Vidhi Centre for Legal Policy.

The authors are also co-authors of the Vidhi Report on ‘Anti-Terror Law in India: A study of statutes and judgments, 2001-2014