PEOPLE’S
UNION FOR DEMOCRATIC RIGHTS
Release
of report entitled, Banned and Damned: SIMI’s Saga with
UAPA Tribunals
8th
July
2015
Since
2001, the Students Islamic Movement of India, SIMI, has remained
banned as an ‘unlawful’ organization under the Unlawful
Activities (Prevention) Act, UAPA for allegedly pursuing
anti-national activities. Significantly, the ban provision under UAPA
mandates the setting up of a Tribunal which is expected to adjudicate
the government’s notification and also offer the banned
organization the chance of challenging its proscription. SIMI has
challenged its ban seven times and seven successive Tribunals have
upheld the government’s decision. PUDR’s latest report, Banned
and Damned: SIMI’s Saga with UAPA Tribunals, presents
an analysis of the UAPA Tribunals’ through a detailed study of two
recent judgements (2010 and 2012) and argues against the ban
provisions and demands the repeal of the Act. Offered below are some
of the salient points raised in the report:
1.
The
context: Historicizing
the case of SIMI’s repeated bans, the opening chapter presents the
contradiction between Tribunal verdicts and those of trial courts.
Unlike the Tribunal judgements which routinely affirm the ban on
SIMI, the trial courts have acquitted a large number of SIMI
activists in the last fourteen years. (See pp 3-4). This trend of
acquittal which has continued in recent times, including the Hubli
conspiracy case, begs the question as to why the Tribunals remain
unaffected by the trial court verdicts while pronouncing their ban
orders. The remainder of the report addresses this question and
analyses why the Tribunals function as a rubber stamp for the
government’s notification, despite claims to the contrary.
2.
Repeated
violations: Since
2001, as per law, a single High Court judge has presided over the
UAPA Tribunals. However, in 2008 under Justice Gita Mittal, the ban
on SIMI was lifted as the judge pointed out that the necessary
‘grounds’
supporting the ban notifications had not been provided by the
Government in its submissions before the Tribunal. The three previous
Tribunals, of 2001, 2003, 2006, had violated the Act as they merely
ratified the Government notification without perusal of the necessary
grounds. No action was ever taken against these violations and even
the cancellation of ban order was reverted by the Supreme Court which
stayed the Tribunal’s judgment for the entire period of two years,
till 2010. (pp 7-8)
3.
Partisan
provisions: The
UAPA sections 3-9 deal with the ban provisions meant for unlawful
organizations and mandate the procedural safeguards necessary for the
functioning of the Tribunal. (pp 19-21). However, a closer look at
the repeated phraseology in the judgments, “against public
interest”/ “immediate effect”/ “sufficient cause”/ “as
far as practicable”/ “so far as may be”, confirm that the fine
print of the Act contains several caveats which ensure the dilution
of safeguards. This erosion enables the government to implement bans
with “immediate effect”, nullifying the need for any check or
ratification. Additionally, the prosecution can withhold information
before the Tribunal on the grounds of “public interest” and not
show concrete evidence. Furthermore, the Tribunal’s pliant judicial
character can restrict the grounds to only “one ground” for
fulfilling the sufficiency cause and disregard mandated procedures of
normal law on the plea of “as far as practicable” or “so far as
may be”. (pp 19-25)
4.
Prejudiced
proceedings: Since
the process of adjudication is meant to adhere to those of a civil
suit, the Tribunal offers wide latitude to the prosecution in
building its case against SIMI. In keeping with the rhetoric of
Islamic terrorism, the prosecution demonstrates country-wide “terror
plots” hatched by SIMI suspects; denounces several organizations as
“front organizations” which work subversively in favour of SIMI;
and produces a sweeping range of “banned literature” which are
said to circulate in the form of songs, poems, leaflets, receipts,
books, CDs, DVDs and emails etc. In short, the prosecution’s case
is that despite the ban, SIMI has been working clandestinely and
grown through its proximity with Islamic terror organizations. (pp
8-12). Given the Tribunal’s lowered threshold for admitting
evidence, the prosecution easily submits decade “old cases” with
minor modifications as legitimate ones; furnishes police confessions
as testimonies; and, withholds evidence on grounds of “public
interest”. (pp 13-18)
5.
Unfair
judgments: The
ban provision along with Section 41 of the Act, which insists that an
organization continues despite any “formal act of dissolution”,
prevents any possible fair chance for the aggrieved organization.
SIMIs claim that it had ceased to function after the ban was never
accepted as the prosecution repeatedly rehearses its clandestine
activities. Further, the locus standi of the erstwhile SIMI activists
who appeared before the 2012 Tribunal as “aggrieved persons”
allowed for under Section 6 of the Act was challenged by the
government counsel on the grounds that the said the erstwhile
activists had to be admitted as “members of a continuing
organization”, a claim which was upheld by the Tribunal judge. (pp
24-26). The burden of this consequence, of being damned and banned,
is best summarized in Shahid Badr Falihi’s submission before the
2010 Tribunal where he questioned this “unequal, unethical and
unjust exercise” (p 6).
6.
The
intent: Contrary
to their role of providing checks and balances, the Tribunal judges’
readily concur with the prosecution’s case and the proceedings
offer enough space for admitting personal biases in the name of
adjudication. The role of the Tribunal is adjusted to suit the
Governments’ needs as it cannot seek authenticity of the documents
provided by, or ascertain the nature of the cases presented by the
prosecution. Nor can it intervene in the situation of wide-scale
arrests that happen with the declaration of bans with “immediate
effect”. The procedural laxity of the Tribunal effectively colludes
with the powers vested in the Government by the Act to ensure the
latter’s continuance. (pp 26-28)
7.
Review
Committees: While
the analysis is restricted to a study of Tribunals meant for
‘unlawful’ organizations, the report urges for a need to
challenge the review process meant for ‘terrorist’ organizations.
The inherent arbitrariness of the Act is evident in its distinction
between ‘unlawful’ and ‘terrorist’ organizations and
delegation of a Review Committee instead of a Tribunal for dealing
with ‘de-notification’ of terrorist organizations. The Review
Committees are but euphemism for Advisory Boards which were rejected
by the Supreme Court in the VG Row judgement (1952) and subsequently
by the Jamaat-e-Islami Hind judgment in 1995. (p
29)
8.
Why
UAPA must be repealed: Among
the recent amendments of the Act, the enhancement of the ban period
from two to five on the suggestion of the 2012 judge has effectively
confirmed a permanent ban on SIMI. Yet, the successive Tribunals have
admitted that these bans have been ineffective in curbing SIMI. Why
then are bans sought, particularly since they engender a culture of
proscription and clandestine activities? If the official argument is
that bans are meant to curb violent actions and ideologies, then it
is legitimate to question why only certain dissenting organizations
are targeted in the name of national security. The discriminatory
application is compounded by the fact that laws like the UAPA invent
new categories of crimes based on intention through which the
Government can target organizations and their members. The most
routine charges levelled against SIMI is that of membership and of
‘unlawful’ activities and both carry stiff punishment ranging
from two years to life imprisonment, including death penalty. The
several case studies in the report show the sectarian nature of the
Act as it has generated numerous social and economic hardships for
Muslim men who stand accused under it. The report calls for the
repeal of the Act as it generates sectarian politics, creates new
classes of offenders based on their organizational affiliation and
attacks them with legislated violence. (pp 29-32)
9.
In
defense of political freedoms: The
report emphasises the need to safeguard the Constitutionally
guaranteed political freedoms, of speech, association and assembly,
which stand threatened under the Act. Today, more than before there
is a greater need to challenge the proviso, “reasonable
restrictions” with its infamous history dating back to 1951 as
large ambits of our political life are restricted by it. (p 30) The
argument that violent acts can be contained by restricting these
political freedoms is specious as it is the duty of the State to
protect the lives of its citizens and take action against culprits
under provisions of existing codes. The report concludes by affirming
that it is better to err, if at all, on the side of freedoms than to
get trapped in the ‘discrete charm’ of security phobia which
thrives on fear and falsifications. (p 33)
Megha Bahl and
Sharmila Purkayastha
Secretaries;
www.pudr.org;
Phone (Sharmila) +91-9971179595For full Report click here
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