The Terror of Law: UAPA and the Myth of National Security

April 20, 2012

A Report by Coordination of Democratic Rights Organization

Press Release

April 2012

The Terror of Law is a CDRO (Coordination of Democratic Rights Organization) report which shows how and why the UAPA curbs the freedoms provided by Article 19 [Protection of Freedoms] for expression, assembly and association against one section of political opinion. Like its predecessors TADA & POTA did, UAPA virtually disenfranchises a section of the people. The report points out that freedom of expression is not an individual right but a collective right of groups, unions and political parties to disseminate their views and mobilize people. This is particularly important, as the report argues, since six decades of constitutional democracy have failed to implement the Directive Principles of State Policy. The connection between the failure of promises and curbing of political freedoms guaranteed under the Constitution (Art. 19, 21) is brought out through a study of how the first amendment (1951) and the sixteenth amendment (1963) to the Constitution played a catalytic role in marginalizing the importance of Directive Principles and in attacking freedoms.

Terror of Law demonstrates that the purpose of the UAPA is not to curb heinous behavior or crime but to outlaw ideologies and groups which threaten the status quo while exonerating other ideologies from its purview despite their record of heinous crimes. A brief summary of the main points are given below:

1. “Reasonable Restrictions”: Enacted first in 1967, the UAPA enables the Central government to impose “reasonable restrictions” on the right to association. It, of course, targets those organizations which are seen as posing a threat, or potential threat, to the country’s “sovereignty and integrity”. Accordingly, the law includes secession within the definition of “unlawful activity” [S. 2 (f)], adds S.153 A and B, IPC, within “unlawful association” [S. 2 (g)] and offers wide and sweeping provision of banning “terrorist organizations” (S. 35) to the Central government. Since what constitutes a “terrorist act” has been construed in such a way that it covers “any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people”, its wide scope allows ample opportunity to the Executive to act arbitrarily and/or with bias.

The original UAPA did not contain the clause to ban organizations either because they promoted “enmity between different groups” or for “imputations prejudicial to national integration”. This was added through an amendment in 1972. The original UAPA gave powers to the Centre to impose an all-India ban on associations. The powers of the state governments to ban organizations were not affected because “maintenance of public order” had been read by the apex court to represent the lower end of “threat to security of state”. With amendments in 1972 and the incorporation of POTA provisions in 2004 and the amendments introduced in 2008, the grounds under which an organization can be banned expanded in the UAPA.

2. Imposing of Bans: The bans imposed in such a cavalier manner, however, have huge ramifications for the life and liberty of citizens and for their political rights and for democracy. For the ban makes it an offence to have any kind of association with the proscribed organization (s. 10). In the case of an organization banned as terrorist, the provisions are still wider and harsher (S. 38). Since the section does not even make the distinction between criminal association and legitimate association or activity, a wide section of people are brought in who can be punished with a sentence of 10 years’ imprisonment without having been part of a single violent act. Activities become crimes as “support” to such organization is deemed as such (S. 39). What is sought to be curbed is not the banned organization but the issues championed by the banned organization. Thus the opposition to the government policy of creating organizations like the Salwa Judum, of creating armed groups through hiring of SPOs, can conveniently be labelled as one which furthers the activity of the banned organization.

What is particularly pernicious is that while the procedure for banning an association is wide and arbitrary, the procedure for un-banning is a byzantine maze which denies any possibility for the ban to get lifted unless the government itself decides to do so. If the proposed amendments to extend the period of ban from 2 to 5 years for a new category of crime under the ambit of “economic security” are brought in which will target trade unions and working class struggles, then the footprint of the UAPA will bring every one other than Hindu right wing and parochial organizations under its baleful purview.

3. Arbitrary Procedures: Instead of enforcing procedures that check the arbitrariness and subjectivity written into its provisions, the UAPA does the opposite. It increases the police powers of arrest, search and seizure [S.43A, 43B], makes all offences cognizable [S.14, 43D(1)], enhances the period of detention [S.43D(2)], overturns the established norms for grant of police custody [S.43D(2)], undermines the power of the court to require attendance of prisoners [S.43D(3)], denies the provision for anticipatory bail [S.43D(4)], enhances the restrictions on bail [S.43D(5)], presumes guilt of the accused [S.43E], permits in-camera trial and withholding the identity of the witness [S.44] and allows intercepted communications to be used as evidence [S.46]. Each of these measures promotes greater laxity on the part of the law enforcers. Arrest without a warrant is permitted for any offence under this Act. Since a large number of offences defined in the UAPA have little to do with what a person does, and more to do with how the government interprets or what it wishes to believe, this blanket power to arrest is an invitation for misuse. By permitting police custody at any stage during the investigation, the UAPA attempts to gag the accused and prevent him from stating anything that may be inconvenient for the police or the government. To make matters worse in this regard, the UAPA stipulates that S.268 of the Cr.P.C. shall apply to every offence under the Act. This means that the court loses the power to direct the officer in charge of a prison to produce a detained person in court for answering to a charge, or for examination as a witness.

4. Preventive Detention: Every liberal and democratic judicial system declares an accused guilty only after the judge declares so after the completion of the trial. Therefore it fixes a reasonable amount of maximum time that an accused may be kept in jail for till the police completes its investigation and submits its findings before the court. Till the completion of the investigation the detention of the accused is only preventive. And preventive detention is prohibited by Article 22 of the Constitution. Hence, the duration of this detention is a matter of serious concern. The Cr.P.C. allows a maximum period of 90 days in case of an offence carrying a punishment of 10 years or above, and 60 days in other cases. Under the UAPA all offences, including the most minor ones, carry a 90 day detention. Add to this the provision [S.43D(2)(b)] that it can be extended by another 90 days, and we have a full-blown law for preventive detention, that puts to shame even the draconian National Security Act, in having no checks at all.

By so doing the UAPA overturns the basic principle of division of power between the Executive, the Legislature and the Judiciary. It confers such extraordinary authority on the Executive that they can at their whim, as BJP led NDA government did in 2001 to ban SIMI, proscribe organizations which in their subjective understanding are anathema to them. Indeed the illegitimacy of the UAPA, under the principles of natural justice, is available in the fact that whereas SIMI was banned in 2001 when there was not a single instance of SIMI being implicated in terror crimes, abundance of evidence of involvement of Hindutva groups in mass crimes, crimes against humanity, etc., for over six decades, did not result in any action against them!

5. Heinous Crimes: The report shows that there are two ways in which the Executive fights against heinous crimes such as bomb blasts which target civilians. The normal law or IPC and other Acts are used for Hindutva terror groups which allow even conspirators, against whom there is prima facie evidence, to escape because they occupy positions of power in Hindutva’s mother organization, the RSS. The extraordinary way is reserved for non-Hindutva groups whose members, or the kith and kin of members/ supporters/ sympathizers, face the brunt of the government’s hostility and witch-hunt. The best illustration of this is found in the kid glove treatment meted out to RSS Pracharak, Indervesh, who escaped interrogation and incarceration for being linked to Hindutva terror which carried out a series of bomb attacks which resulted in scores of killings, simply because Hindutva organization/s are not banned.

It is worth pointing out that the UNSC did ban some of the groups primarily because they caused large scale civilian deaths, an act of heinous crime in itself. But they failed to curb such crimes because they did not declare
that many agencies belonging to permanent members of the UNSC ought to be covered under this. It also failed to note that those whose hands are already bloodied by heinous crimes against humanity are prime advocates for proscribing those entities disliked by them.

5. V.G. Row Judgment: The report draws strength from a judgment which was given in 1952, a year after the passage of the First amendment in 1951. In the VG Row versus the State of Madras (1952) case, a five member bench of the Supreme Court expressed concern at the unbridled powers vested with the government to ban organizations. The significance of the judgment lay in the manner in which the apex court read down the 1908 Act which permits the provincial governments to impose ban on organizations. In paragraph 17, the Supreme Court held that “The right to form association or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fields, that the vesting of authority in the executive government to impose restriction on such right without allowing the grounds of such imposition both in their factual and legal aspect to be duly tested in a judicial inquiry, is strong element which, in our opinion, must be taken into account in judging the reasonableness of the restriction imposed”. It further held that “The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restriction on fundamentals rights.”

Conclusion: The report denounces the politics of ban, the use of draconian laws to silence dissent, restrictions imposed on freedom of expression, assembly and association under one or another excuse, all of which flows out of the gun of the rulers, raised in favour of foreign and Indian capital, and trained against people who question or oppose them. CL-DR groups are of the firm conviction that if the government has a case backed by evidence to declare an ideology as criminal or proscribe an organization it should be able to prosecute the organization and allow the courts to decide rather than preventing the organization from carrying on with their political mobilisation and propagation on mere whim of the authorities. The report strongly contests the manner in which political and ideological differences are made unlawful which erase the specific contexts which cause and prolong conflict. The report argues for a separation between crime and expression as it allows for dialogue, which can go a long way in resolving such conflicts saving tens of thousands of lives. In all conflicts there was an original moment, such as in the Naga peoples struggle among others, where peaceful resolution was available. Instead by taking recourse to military suppression and criminalizing dissent the State effectively throttled this possibility.

The report demands an immediate and unconditional repeal of the UAPA.

Preeti Chauhan, Paramjeet Singh

Secretaries, PUDR,
On behalf of CDRO