The Terror of Law
UAPA and the Myth of National Security
Coordination of Democratic Rights Organizations
(CDRO)
April 2012
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(First 27 pages are shared here)
Contents
Preface 4
Introduction 6
.Making the Unlawful 11
The build-up to the First Amendment 13
The First Amendment of 1951 17
Criminal Law Amendment Act 1908 19
The Sixteenth Amendment of 1963 20
Unlawful Activities (Prevention) Act of 1967 22
Amendments to the UAPA in 2004 and 2008 25
Inventing Yet Another Behemoth 25
II.Restricting Fundamental Freedoms 28
Creating New Crimes 28
Banning Organizations 35
What a Ban Entails: More Offences and Gagging 39
The ‘Modified Application’ of Norms of Jurisprudence 42
III.The Case of SIMI 47
Arguments Against the Ban 48
The Tribunal’s Judgment 49
Hindutva Terror 52
IV.Tales in Terrorism 55
Conclusion 77
Annexures
I.Drawing Comfort from the UN for Politics of Banning 81
II.International Convention on Civil and Political Rights 83
III.V.G. Row versus the State of Madras 85
IV.The Superintendent Central...versus Ram Manohar Lohia 91
V. Arun Ferreira’s Letter from Prison 95
VI. SIMI Ban Review Tribunal Notice, 2008 100
Page 4 The Terror of Law
Preface
This joint report demanding the repeal of UAPA [Unlawful Activities (Prevention) Act] is the first attempt by CDRO (Co-ordination of Democratic Rights Organizations) to bring out a comprehensive account of terror laws and their operation. The CDRO was formed in August 2007, and is a coalition of over twenty civil and democratic rights organizations from across India. The CDRO arose in the context of the violent state repression of people’s movements in India as well as the arrest of democratic rights activists. In its first meeting CDRO affirmed: • The right to organize and struggle is a basic democratic right of the people • To stand united against all forms of state repression on people’s democratic struggles • To support with solidarity actions in the event of attacks by the state on any civil rights organizations or its representatives. Accordingly, a broad range of campaigns and issues arose such as, the demand for the repeal of
brutal laws; the demand for the release of political prisoners from jails across India; combating the increasing use of extra judicial, statesponsored armed gangs; demands for the repeal of death penalty; exposing narco analysis as a form of police torture etc.
In this context, the need to bring out a detailed report on UAPA has been a long felt one. However, the present report is not an empirical report based on a fact finding. In fact, the paucity of comprehensive
‘facts’ regarding UAPA cases such as the number of arrests, period of detention, status of cases etc. was a problem that made a ‘fact’ oriented report difficult. Also, this report is not a strictly legal report which
analyzes only the provisions of the law. It is an attempt at understanding how legislations like UAPA are part of a larger history of banning and criminalizing dissent. The political history of curtailment of rights and freedoms is also the context within which the provisions of the law are analyzed. The selected case studies draw upon the experiences of different organizations and their struggles with UAPA. The annexures offer a larger perspective of judgments and resolutions. The journey of this report has taken over eight months as
collective labour is a time consuming process. The report has benefited from discussions with and the inputs of several lawyers, activists and other individuals.
Constituent Organizations of CDRO
Association for Democratic Rights (AFDR, Punjab),
Andhra Pradesh Civil Liberties Committee (APCLC),
Asansol Civil Rights Organization (West Bengal),
Association for Protection of Democratic Rights (APDR, West Bengal),
Bandi Mukti Committee (West Bengal),
Committee for Protection of Democratic Rights (CPDR, Mumbai),
Coordination for Human Rights (COHR, Manipur),
Human Rights Forum (HRF, Andhra Pradesh),
Lokshahi Hak Sangathana (LHS, Maharashtra),
Manab Adhikar Sangram Samiti (MASS, Assam),
Naga Peoples Movement for Human Rights (NPMHR),
Organisation for Protection of Democratic Rights (OPDR, Andhra Pradesh),
Peoples Committee for Human Rights (PCHR, Jammu and Kashmir),
Peoples Democratic Forum (PDF, Karnataka),
Peoples Union for Civil Liberties (PUCL) Chhattisgarh,
PUCL Jharkhand,
PUCL Nagpur,
PUCL Rajasthan,
PUCL Tamil Nadu,
Peoples Union For Democratic Rights (PUDR, Delhi),
Peoples Union for Human Rights (PUHR, Haryana),
Campaign for Peace and Democracy,Manipur(CPDM).
Introduction
People crushed by laws, have no hopes but from power. If the laws are their enemies, they will be enemies to the law; and those who have much to hope and nothing to lose will always be dangerous.
Edmund Burke
Civil liberties and democratic rights organizations have for long argued against extraordinary laws and anti-terror legislation because they have become a tool for curbing political dissent. This report analyzes the entire range of such laws which give the Indian state unrestricted powers to infringe on fundamental freedoms guaranteed by the Constitution.
How have these extraordinary laws influenced Indian polity? First, terror is defined in such a way that it removes from consideration crimes against humanity committed by those in power, including government forces. Instead, terror is defined only in terms of the actions of those who question the status quo. Second, such laws criminalize the fundamental freedom to associate and assemble in a democracy by allowing the government to simply ban political organizations. However, banning organizations has never resulted in
a particular ideology disappearing or losing its appeal. These organizations are only pushed underground and membership is made criminal. Finally, such laws skew the balance of power between the executive and judiciary, allowing the executive immense power to restrict the democratic right of citizens to organize and agitate democratically. And, when the executive overpowers the judiciary in this manner, those the executive wants to control or punish or silence simply do not get any justice in court and are treated unfairly,
unequally and undemocratically. Three cases listed below show the circularity of reasoning which UAPA propagates through its definitions, procedures, provisions and proscriptions.
***
When Soni Sori, a mother and school teacher, lay shackled to a hospital bed in Jagdalpur, after she had been sexually abused and tortured by Chhattisgarh police personnel, life had turned a full circle for her in less than a month. Sori had left her village in Jabeli district of Chhattisgarh on 10 September 2011 when the police began accusing her of aiding Maoists. Her nephew, Lingaram Kodopi, had just been arrested on trumped-up charges of collecting hush money from the Essar company, supposedly at the behest of the Maoists. Sori was arrested almost a month later in Delhi and was produced at a district court in south Delhi on 4 October 2011. At the court, she pleaded that she be held in a jail in delhi because she feared abuse at
the hands of the Chhattisgarh police. Moreover, she said that she was innocent and that the police was out to ‘get her’ for being a proactive member of her village community. Unfortunately, a large number of charges had been leveled against her––criminal conspiracy (Section 120 B of the IPC), waging war (Section 121 of the IPC), sedition (Section 124 A of the IPC), and aiding a terrorist organization (Section 39 Unlawful Activities Prevention Act, 2008) and raising funds for its activities (Section 40 of the UAPA). As a result, the judge chose to weigh the merit of Sori’s appeal against the charges leveled by the Chhattisgarh police against
her and decided to reject her bail petition. When Sori was sent back to Chhattisgarh under the direction of the court and media glare, no one could imagine the impunity with which the Chhattisgarh police would abuse and torture her. The court had specifically allowed the police to interrogate her for two days while taking care of her security and protection. What followed for Sori was an experience of brutal abuse in police custody in Dantewada, which left her so injured that she had to be put in hospital in Jagdalpur. On their part, all the police did to get away with torture and abuse is claim that Sori slipped in the bathroom and hurt her head and her back. Later medical examinations would go on to prove that Sori had indeed been beaten
and sexually abused by Chhattisgarh policemen. Why was Soni Sori denied bail and forced to go back to
Chhattisgarh in the custody of the police who, she knew, would torture her? The law is supposed to protect the victims as well as the accused, even more so in a custodial situation. Not only did her cries fall on
the deaf years of the judiciary in Delhi, she was returned to the custody of a team that included one of the torturers from a previous detention, who then, once again, tortured and sexually violated her in custody.
Her crime: she was an alleged supporter of a so-called terrorist who then, once again, tortured and sexually violated her in custody.Her crime: she was an alleged supporter of a so-called terrorist organization. Her thoughts and actions were deemed criminal simply organization. Her thoughts and actions were deemed criminal simply based on the accusations of a police force acting under government instructions, and she was pronounced an enemy of the state.
***
That the UAPA allows the government/executive to decide which organizations it wishes to ban, and what kinds of people it wishes to silence or eliminate is no where clearer than in the comparison of Hindutva terror and Islamic terror. The unequal application of the tag of ‘unlawful’ and ‘banned’ to communal organizations has led to the appeasement of right wing Hindutva terror groups, even as they have continued a vitriolic and violent campaign, including large-scale killings, against minority communities. As we can see later in this
document, while Hindutva terror groups do not face the prospect of banning because their activities are not viewed as ‘organized’ or detrimental to the ‘security’ of the Country, Islamic groups, such as SIMI, that has never been convicted of any violent acts, are deemed unlawful and banned. For the far right government then in power, SIMI’s campaign for following Islamic beliefs such as jehad and the eschewing of idolatry, were reason enough for SIMI to be deemed a threat to the ‘security’ of Country. The Maharashtra theatre blasts case, discussed in Chapter 4, is a prime example of how the judiciary treats a banned organization
and a legally-recognized association differntly. The phrase ‘strike terror’ as it is applied to the alleged actions of banned organizations such as Indian Mujahideen, Hizbul Mujahideen, CPI (Maoist), etc., was considered inapplicable by the judge to the the Hindutva organization that carried out the Maharashtra theatre blasts.
It is worth considering whether Soni Sori would have met with the same fate had she been linked with Hindutva organizations such as Sanathan Sanstha or Abhinav Bharat (responsible for bomb blasts in Ajmer Sharif and Hyderabad’s Mecca Masjid in 2007, Samjhauta Express in 2007, and in Malegaon in 2008). While Soni Sori is an alleged supporter of a banned organization, Sadhvi Pragya is a conspirator in acts of mass murders. The sinister truth about laws that ban organizations is that they exist on the premise that bans
can be enforced at the subjective satisfaction of the functionaries of the state.
The extent of the executive’s power to ban critical political thinking is most obvious in the verdict of a Ranchi Session’s court in the case of Amitabh Bagchi, polit bureau member of the CPI (Maoist). Two
years after Bagchi was arrested in 2008, the session’s judge agreed that since no firearms were recovered from the accused at the time of the arrest, Section 10 (b) of the UAPA (penalty for using firearms) could not be held against them. However, for the judge, the nature of literature recovered from the accused and the fact that he belonged to a banned organization were sufficient reasons to indict him. The judge said:
I have gone through the contents of the documents as well as the books. The contents are sufficient to change the attitude of any person. It is full of criticism of the functioning and structure of State and Central Government. True it is that the citizen have right granted under article 19 (1) (a) of Constitution of India to
enjoy freedom of speech and expression but this fundamental right is however subject to limitation embodied under article 19 (2) of the Constitution. It is the fundamental right of every citizen to have his own particular theories and ideas and to propagate to and work for their establishment so long as he does not seek to do
so by force and violence or contravenes any provision of law. It is not that the accused undertook to propagate their political thoughts that capitalism and democratic system of governance are dangerous to the advancement of society rather the literature and books goes to show that it has such explosive contents which can change the very thinking of ordinary man and it is highly provocative against Central and State Governments. When in pursuance of one’s political beliefs one tries to overthrow the existing government by violence it becomes punishable u/s121 of IPC. The recovery of books like ‘operation Jail break’ which was related with Jail Break of Jehanabad on 13.11.2005 left little to be said about the intention of the accused. Likewise the book ‘Dandakaranyak me nayi Jansatta’ also contains the material which can systematically change the very thinking of masses against the government. It is not necessary that for waging war the accused must be found collecting men, arms and ammunition rather waging war against the government is the attempt to accomplish by violence any purpose of public nature. When a multitude rises and assembles to attain by force and violence anyobject of a general public nature, it amounts to levying war against the government. The books and the reading material contain the sentences which instigate the masses to take up arms against the government. In unambiguous language an appeal is made to the people to assemble and change the system by using gun and to adopt Guerrilla warfare. After going through the book “Operation
Jail Break” and “Dandakarnya me nayi Jansatta” it is crystal clear that the accused are educating the opinion of the masses against the Government to take up arms and change the existing system of Government, on gun point. In my opinion educating the opinion of the masses is more dangerous than killing one or two individuals. It is like cancer in the society. After going through the seized material I find that the accused are at the helm of the affairs and they are instrumental in planning and executing raids against the police, paramilitary force as well as turning the masses against the government.1 The important thing to note is that the contents of the two booklets cannot be delinked from the social context in response to which this literature is published. Armed struggles or recourse to arms come about only when all avenues for working peacefully for social transformation or for right of self-determination are suppressed by an unequal and unjust social, political and economic system. The provisions of the UAPA and other extraordinary laws actually intensify the injustices by making political association and dissent unlawful. As a result, literature becomes more incendiary than an actual bomb planted at a public place because ‘educating the opinion of the masses
is more dangerous’! This is a clear give away of the attempt to defend the existing state of affairs and maintain the status quo. Of course it does not follow that each time an accused is held for belonging to a banned organization, he/she will necessarily be convicted, irrespective of mitigating circumstances. Laws are said to be products of enlightened jurisprudence and not reenactments of medieval witch hunts. The counsel for the accused raised an important point that, ‘If the books were indeed so provocative, then the [trial court] judge ought to have been transformed into the Naxalite way of thinking.’ Presumably, this argument persuaded the Division Bench comprising Justice R.K. Merathia and Justice Jaya Roy, which was considering the bail application of the accused, to observe that merely ossessing Naxalite literature did not amount to criminal offence. The court further said that every citizen has the right to profess ideologies at will and this was not a crime under the IPC.2
***
The law cannot be separated from the manner of its use. UAPA provisions for proscribing organizations and criminalizing political ideologies and organizational membership, sympathy, support make extraordinary laws concerted attempts by the government to restrict the fundamental freedoms of citizens. The purpose of the UAPA is to allow the government to outlaw opponents or those who question the status quo. The extraordinary nature of the UAPA is clearest in the time taken between arrest and bail or acquittal. The fact that the UAPA overturns one of the fundamental principles of jurisprudence– –the presumption of innocence to the presumption of guilt––makes the possibility of a fair trial for the accused very rare. Even if the judiciary grants a reprieve, laws like the UAPA allow the authorities to promptly implicate the person in another case and re-arrest him. The entire period of detention itself, therefore, amounts to punishment. This report seeks to understand how and why this legislation arrived in our midst and how it continues to vitiate our polity by
masquerading as a ‘normal law’. It examines the fine print of the law and provides examples from some of the many cases which illustrate how the politics of proscription originated and expanded. The report is informed by the conviction that heinous crimes such as bomb blasts and other acts which kill civilians are reprehensible and, those who are guilty must be punished. But in order to address terror strikes,
we should not submit and give our consent to a system which produces unjust laws. Through analysis and examples, the report hopes to convince the public that repressive laws are a form of state-approved
violence.
Endnotes
1. ST case no. 41/2010 Kamal Kishore Versus Amitabh Bagchi and Tohid Mulla, Court of Additional Judicial Commissioner (F.T.C) VIII, Ranchi, Dated: 18.8.2010, pp. 13–14. Bagchi was charged under Sections 121/34 of the IPC read with Sections 10, 13 (1) (a) (b) of the UAPA 1967 and Section
17 of the CLA Act.
2. The Telegraph, 24 December 2010 <http://www.telegraphindia.com/ 101224/jsp/frontpage/story_13341740.jsp>, accessed on 1 March 2012.
I. Making the Unlawful
The fundamental freedoms guaranteed by the Indian Constitution, that of association, assembly and expression, are essential for the maintenance of a functioning democracy. These freedoms enable people to collectively express, promote, pursue and defend common political interests. They give common people not only the right to express themselves through demonstrations and protests, but also allow for public mobilizations of opinion, irrespective of whether these opinions are critical of the government or the executive. However, these lofty ideals of the Constitution have been systematically pruned to suit the interests of the ruling class, and there is no better example of this than the Unlawful Activities (Prevention) Act, which place severe strictures on citizens’ rights to practice fundamental freedoms. The current Unlawful Activities (Prevention) Act, like its predecessors TADA and POTA, grants the state sweeping powers to restrict citizens’ freedom of expression, assembly and association. These acts are the logical consequence of a process begun almost a hundred years ago by the Criminal Law Amendment Act (CLA) of 1908, which first used the term ‘unlawful association’. It was on the basis of the definition of ‘unlawful association’ contained in this act that the British Raj tried to suppress the Indian independence movement by imposing bans on several organizations. Unfortunately, Indian governments after 1947 have used these very same powers to
curb dissent caused by widespread abuses of state power and the structural inequalities that plague Indian society. The government of India has continuously curtailed the fundamental freedoms of Indians. It has done this by changing the law to impose restrictions on fundamental rights, so that the executive holds immense power to silence political dissent.
The fact is that India’s indigenous rulers had the choice of discarding British laws and establishing a true democracy. However, the process of the abridgement of fundamental rights, especially the freedoms of expression, speech, assembly and association began in 1951 with the First Amendment.
The build-up to the First Amendment
After the transfer of power in 1947, the higher courts had construed the freedom of association and expression liberally to permit only the most minimal restriction of citizens’ rights. The first Amendment
was adopted specifically to counter these liberal judgments. 1947–51 was a tumultuous period when the country was engulfed in communal frenzy following Partition on the one hand, and peasant movements such as Telengana and Tebhaga on the other. Communal frenzy had begun to subside by 1950, following the assassination of M.K. Gandhi on 30 January 1948 and by 1951, the Communist Party of India-led Telengana Movement had more or less been called off. Even at this stage, the government used military suppression against members, supporters and sympathizers of communist parties. Hindu right wing political parties and social organizations, which advocated the use of force against Muslims, did not face such severe repression. The appeasement of extreme right wing organizations and the persecution of communists––both tactics employed by the British Raj– –were carried on after 1947. The class and religious character of the
Indian state crystallized most coherently in the law, where issues such as ‘public order’ and ‘security of the state’ became shorthand for the executive’s power to quell political challenges and minimize citizens’ rights to practice democracy.
***
Why did the First Amendment bring about changes in Article 19 (1) (a) of the Indian Constitution [Freedom of expression and speech]? To answer this question, we begin with a discussion on some early judgments by the judiciary of the newly-formed Indian republic that struck a deeply democratic note. The primary argument of these judgments was based on Article 13 of the new Constitution. Clause (1) of Article 13 says, ‘All laws in force in the territory of India before the commencement of this Constitution, in so far as they are
inconsistent by the provisions of this Part, shall, to the extent of such inconsistency, be void.’ That is, all laws would only be valid if they respected the Fundamental freedoms laid down in the new Indian Constitution. Three judgments––Romesh Thapar versus the State of Madras, V.G. Row versus the State of Madras and the A.K. Gopalan case––played a very important role in protecting our Constitutional freedoms by arguing for their liberal interpretation. Romesh Thapar versus the State of Madras: This particular case contested an order issued by the governor of undivided Madras province on 1 March 1950. The order banned ‘the entry into, or the circulation, sale, or distribution in the state of Madras …. [of] newspaper entitled Crossroads, an English weekly published in Bombay’ under the Madras Maintenance of Public Order Act, XXXIII of 1949. This order was challenged in the Madras High Court and the matter came up before the Supreme Court as Romesh Thapar versus the State of Madras on 26 May 1950. The Bench headed by the Chief Justice held
that the order was ‘wholly unconstitutional and void’ because restrictions on the freedoms of expression and speech would only be tenable if the security of the State is undermined or its overthrow it is planned, which the said publication had not done. The rest of the judgment is worth quoting in full for the relevance it holds for us even today.
[T]he Constitution, in ... imposing restrictions on the fundamental rights enumerated in article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say , nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment … while the right of peaceable assembly … and the right of association … may be restricted under clauses (3) and (4) of Article 19 in the interests of “public order” … (Therefore), criticizing the Government, exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. … [the] deletion of the word “sedition” from the draft article 13(2) … shows that criticism of Government, exciting disaffection or bad feelings towards it, is not to be regarded as justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State … Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right to freedom of speech and expression and this was doubtless due to the realization that freedom of speech and of press lay at the foundation of all democratic organizations, for without free political discussions nopublic education, so essential for the proper functioning of the processes of popular government, is possible.1 V.G. Row versus the State of Madras: This case led to a judgment which declared provisions of S 17 (E) (3) of the Criminal Law Amendment Act 1908 void because it was ‘… inconsistent with the fundamental rights guaranteed under Part III, Constitution of India, more particularly, rights specified under Articles 19, 21 and 31 of the Constitution’.2 Delivered in the Madras High Court on 14 September 1950, Justice Satyanarayan Rao’s observations in V.G. Row versus
the State of Madras show a deep insight into the significance of the fundamental right of free association:
[T]he provisions of the Criminal Law Amendment Act (1908) … are inconsistent with the Fundamental Rights in Part III of the Constitution … That provision confers upon the Provincial Government the power to declare an association unlawful if it is of the opinion that the association interferes or has for its object interference with the administration of law or with the maintenance of law and order or that it constitutes a danger for public peace. That declaration is final and conclusive and cannot be questioned in a prosecution under S 17 of the Act. The accused has no right or opportunity to show that the declaration was erroneous and was not justified. It is a naked arbitrary power conferred by … [the act] upon the Provincial Government to impose a restriction on the right of a free association conferred by Article 19 (C) of the Constitution and is of such an absolute nature which cannot be and indeed was not attempted to be supported as a reasonable restriction on the exercise of the right. In my opinion it offends also Article 14 as it denies equal protection of the laws to persons … 3
A.K. Gopalan Case: In the A.K. Gopalan case, the Supreme Court said:
It will be noticed that of the seven rights protected by Clause (1) of Article 19, six of them namely (a), (b), (c), (d), (e), and (g) are what re said to be rights attached to the person (jus personarum). The remaining … (f) is the right to property (jus rerum) … [a] perusal of Article 19 makes it abundantly clear that none of the seven rights enumerated in Clause (1) is an absolute right for each of these rights is liable to be curtailed by laws made or to be made by the State to the extent mentioned in the seven clauses (2) to (6) of that Article. Those clauses save the power of the State to make laws imposing certain specified restrictions on the several rights.
The net result is that the unlimited legislative power given by Article 246 read with different legislative lists in Schedule VII is cut down by the provisions of Article 19 and all law made by the state with respect to these rights must, in order to be valid, observe hese limitations. Whether any law has in fact transgressed these limitations is to be ascertained by the court and if in its view the restrictions imposed by the law are greater than what is permitted by Clause (2) to (6) … [it] will declare the same to be unconstitutional and therefore, void under Article 13.4
What these three judgments asserted were, a) fundamental freedoms could be curbed only in the most extreme of cases, b) state declarations and laws tend to curb fundamental freedoms, even as their imposition without a trial does not guarantee equal protection under the law to all citizens, and c) laws that curb fundamental rights are essentially unconstitutional.
Before assuming that the judiciary was one in its liberal interpretations, it is important to understand that judgments that argued in opposite terms, using the same laws, also occurred. An example of this is the Brij Bhushan and Others versus The State of Delhi case. On 26 May 1950, the Supreme Court held in this case
that it was the government’s decision whether restrictions were to be imposed on fundamental freedoms and that, ‘[T]his Constitution itself has prescribed certain limits for the exercise of the freedom of speech and expression.’5 Judicial differences notwithstanding, the First Amendment once and for all changed the Constitution to suit the Executive/government’s need to control and silence dissent. We argue that the Executive enacted the First Amendment in 1951 in a bid to restrict liberal judicial interpretations of fundamental freedoms that allow for the democratic questioning, critiquing and challenging of established state power.
The First Amendment of 19516
The First amendment specifically sought to amend 1) Article 15 to provide reservations for ‘Backward Communities’; 2) Article 19 to add the word ‘reasonable’ before restrictions and to add ‘public order’
as being one more ground for abridging Fundamental Rights in Article 19 (2); 3) replacing Article 31 with Article 31A (Saving of laws providing for acquisition of Estates, etc).
Nehru justified the need for an amendment saying that it was an ‘enabling’ measure, necessary for achieving equality and development as laid out by the Directive Principles of State Policy. He argued that ‘The real difficulty we have to face is a conflict between the dynamic ideas contained in the Directive Principles of State Policy and the static position of certain things that are called “fundamental” whether they relate to property or whether they relate to something else.’ By pushing through such a diverse set of amendments to the Constitution, including the need to enforce Directive Principles and the curtailment of fundamental freedoms, the first Government of India under Nehru, paradoxically, paved the way for abridging freedoms. Six decades later, while the Directive Principles of State Policy remain unenforced, freedoms under Article 19 have become constricted. While arguments for and critiques of each of these amendments are interesting (available in parliamentary debates), in this report, we are concerned with amendments made to Article 19.
This is how the government argued for an amendment to article 19 in Parliament:
During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by article 19 (1) (a) has been held by some
courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen’s right to practice any profession or to carry on any occupation, trade or business conferred by article 19 (1) (g) is subject to reasonable restrictions which the laws of the State may impose “in the interests of general public”. While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place the matter beyond doubt by a clarificatory addition to article 19(6). (Statement of Object and Reasons signed by Jawaharlal Nehru on 10 May 1951)
The home minister C. Rajagopalachari argued, ‘If Parliament gravely sits down to pass a law that people should not sell wheat or gram at above a certain price … that people should not commit theft … (or) in any other matter which does not involve violence, is it to be conceived that the freedom of speech granted by the Constitution should go to the extent of encouraging or inciting people to commit those very crimes [?] … [was] it the intention of any honourable member who was party to the Constitution … that freedom of speech should allow anybody to act adversely, by speaking or writing, to the security of the State or to friendly relations with foreign States or to public order or decency or morality or that the laws of contempt of
court should be abolished or that the law of defamation should be abolished or that incitement to offence should become part of the charter of freedom of speech?’
Debates on the amendment to Article 19 covered several key issues: the diffuse nature of the term ‘public order’, the attempt by the state to enact extraordinary laws to punish political dissent in times of peace, and the restoration of colonial laws and definitions such as that of sedition.
That the First Amendment showed the tendency of the Indian state to control political dissent of any kind was raised by a member of parliament, K.T. Shah, who pointed out, ‘[E]very one would be one at one with the prime minister when he says that every liberty we possess may have to be restricted when it comes to the question of the integrity and independence and continued existence of this country as an independent sovereign state … But we have made separate provision for dealing with emergencies in our Constitution … . [So] it does not behove us, for fear of possible emergencies, that we should today make a general provision and limit the freedom of speech in the interest either of public order or in the interest of possible danger of
incitement of offence.’
One major fall out of the amendment was the restoration of several laws made void by the new Constitution. In addition to changes in Article 19, the First Amendment resuscitated both Section 124 A of the Indian Penal Code (Sedition) and Section 153 A of the IPC (preaching of hatred between different groups). Naziruddin Ahmad argued against the government that members of the Drafting Committee of the Constituent Assembly had wanted to do away with the law of sedition, but no action had been taken to do this, thus leaving it open to the state to impose sedition on activities that it considered detrimental to ‘public good’. Ahmad also said that the words ‘security of the State’ in the original article 19 (2) did in fact leave
provision for the state to make laws only when there is a threat of overthrowing the state. S.L. Saksena observed that following the amendment those laws which had become void under original Article 19 could be considered not to have become void. What this meant was that the First Amendment was an enacting rather than enabling one. Indeed, it restored the validity provisions of the Criminal Law Amendment Act 1908, which defined unlawful association, among other things. In this manner, several repressive laws used by the colonizers against the people who now held the reins of power, were reinstituted in the Indian Constitution.
The Sixteenth Amendment of 1963 ...7
The next step in the abridgement of freedom of expression, assembly and association occurred in shape of the Sixteenth Amendment in 1963. The main purpose of the amendment was to alter Article 19 to include the words ‘reasonable restrictions in the interest of the sovereignty and integrity of India’. Again, the government argued against liberal judicial interpretations of fundamental rights. The law minister A.K. Sen defended the amendment saying, ‘… some of the decisions of the Supreme Court have made it quite clear that the words “security of state” is a limited expression and it does not comprehend any power to ban organizations or political activities. … [The] purpose of this Constitution (Amendment) Bill is mainly that we want to appropriate powers for the Government to impose restrictions against those individuals or organizations who want to make secession from India or disintegration of India as political issues for the purpose of fighting elections.’ The minister justified the amendment in the interest of outlawing secessionism, in the absence
of which the situation in India, the minister said, would be the same as in 1940, when the Muslim League first put forward the idea of the Partition of India.
The Sixteenth Amendment occurred in the immediate wake of the Sino-Indian War and the debacle suffered by the Indian Army, as well as the threat posed by Dravida Munetra Kazhgham’s contesting elections in Tamil Nadu with secession from India being part of their manifesto. During the debate, some members of parliament did point out that the immediate objective behind the amendment, which was to stop the DMK from contesting elections for entertaining secessionism, had become redundant because the party had already
dropped secessionism from its charter. However, parliamentary debate records show that the mood of the House was intolerant and jingoistic. Even those who had reservations about the amendment were less opposed to it than fearful that the Congress party could use these powers against their political opponents.
In the course of the debate in Parliament, E. Sezhiyan argued that whatever the balance gained between individual rights and the collective interests of society, the government’s attempts to encroach on fundamental rights need to be limited. He also approvingly quoted Justice Jackson’s memorable ruling in West Virginian board versus Barnette to make his point: ‘Freedom to differ is not limited to things that do not matter much. That would be a more shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.’
With increasing curbs on Article 19, what the Indian government had succeeded in doing was making the raising of questions against the existing structures of power unlawful and illegal Of the two Constitutional amendments, the First was passed by a Parliament which had not been elected under universal suffrage as
the first general elections took place only in 1952. Both the amendments mustered 2/3rd majority since Congress enjoyed complete domination over the Parliament.
However, what both amendments did was to enable the Parliament and state legislatures to enact laws through simple majority, as opposed to 2/3rd majority needed for the passage of a Bill amending the Constitution. The original restriction which requires a 2/3rd majority vote for changes in fundamental rights was circumvented by passing amendments empowering the Parliament and state assemblies to enact laws which impose restrictions or abridge fundamental rights. If the original Constitution as well as the earlier judgments of the Courts had narrowed down the possibility of restricting Freedoms, with these two amendments to the Constitution, the Government empowered itself to curtail fundamental freedoms.
This that should be kept in mind as we turn to a discussion of the Unlawful Activities (Prevention) Act.
Unlawful Activities (Prevention) Act of 19678
The sixteenth amendment paved the way for the enactment of the UAPA. Though the UAP Bill was tabled twice in Parliament, during the third Lok Sabha and then again during the fourth Lok Sabha, in both cases it was withdrawn due to opposition. Finally, it was passed by the fifth Lok Sabha in 1967. The UAP Bill sought to empower the central executive to ban organizations, a right which until then had been the prerogative of the provinces under the Criminal Law Amendment Act of 1908. The centre did enjoy powers under the Constitution to restrict freedom of association, but as MP Dayabhai V. Patel pointed out during a debate in Lok Sabha on 11 August 1967, by declaring as ‘unlawful’ a range of activities ‘which encourage
or aid persons in unlawful activities or who undertake unlawful activities habitually’ extraordinary powers were being acquired by the executive. He also referred to Article 13 (2) of the Constitution, which debars Parliament from enacting such legislations (‘The State shall not make any law which takes or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void .’).
In the course of the debate some members advanced arguments against the UAPA, which are as relevant today as they were then. It was C.C. Desai, an MP from Gujarat, who questioned the very rationale
of the bill: They talk about secessionism. Why should there be secessionism? Where is the danger to the integrity and sovereignty of this country today? It is not in the south, it is not in Assam, it is not even in
Kashmir. …. Look at Assam. The present situation in Assam is the direct creation of bad policies of [the] Government. At one time we had only the Naga problem, but now we have the Naga problem, the Mizo Hills problem, the Lushai and Jayantia Hills problem, the demand from Cachar for being a separate state, the demand for the constitution of Brahmaputra Valley as a separate State … Similarly take the case of Kashmir … Kashmir is an internal problem, but it is a problem in the sense that our writ does not run there and they do not have a government of the people, by the people and for the people. So what we want in Kashmir is not a draconian measure, not an unlawful Bill like this, not a Black Bill like this, but free and fair elections, freedom of movement, freedom of association and freedom speech to the people of Kashmir so that they can have a government of their own choice and their own desire. Even the so-called plebiscite front people, the so called secessionists, will come round if we tackle them in the correct way and persuade them to make common cause with us in our objective … The real danger to the country is from a movement started by my honourable friend himself [pointedly referring to the union home minister Y.B. Chavan], the Shiv Sena, that is
directed at the very heart of India in the city of Bombay, in the metropolis of the country––started by the present Home Minister here and carried on by the Home Minister of Bombay. That is the unlawful activity that has got to be curbed not the so called secessionist activity at which the Bill is supposed to be directed.
Another MP, Surendranath Dwivedi likened the UAP Bill to colonial laws: ‘The clauses of the Bill … it reminded me of the year 1932 when the civil disobedience movement started in this country … You will remember in the year 1932 on 4th January before any formal announcement of civil disobedience movement was made the then Viceroy of India, Lord Willingdon proclaimed as many as 12 ordinances declaring unlawful every Congress organization, anybody helping or abetting any political offenders etc. and out of these at least 4 were Emergency Powers Ordinance, Unlawful Instigation Ordinance, Unlawful Association Ordinance, Preventive Molestation and Boycotting Ordinance. If one reads those ordinances and compares
them with the present Bill one would fear that probably in the Secretariat of New Delhi those elements or persons … still exist.’
He went on to critique the bill saying that it did not respect principles of fair jurisprudence: ‘They say that that if they feel that in public interest, the reasons for which they are declaring such an association or group of individual as unlawful, are not to be disclosed, they need not disclose. … In this country we want that you should prove that offence. If a man is really indulging in unlawful activities you can go to the court.’
Another MP, K.M. Koushik argued against the bill on similar grounds: ‘In clause 4 the burden of proof has been cast on the persons. A notice is issued to him, he goes to the Tribunal. There he is asked to show cause as to why the Association should not be declared unlawful. This is running counter to the canons of urisprudence. It is for you, for the Government to show that the organization is an unlawful one.’ Another member wondered, ‘Where does honest expression of opinion and mobilization of public opinion end and where does incitement begin?’
Another bone of contention was the designation of tribunals to review bans. S.M. Bannerjee pointed out, ‘Section 5 says “The Central government may by notification in the Official Gazette constitute as and when necessary a tribunal to be known as the Unlawful Activities (Prevention) Tribunal” constituting of one person to be appointed by the Central Government provided that no person shall be so appointed unless he is a Judge of High Court.’ This, he said, gave enormous powers to the executive to decide both the timing and composition of a tribunal, something which has come true in practice. Tenneti Viswanathan warned, ‘Suppose a gentleman A is prosecuted and the judgment does not satisfy the requirements of the Government. Next time they may appoint another [tribunal] judge.’ He also observed that a tribunal has always been a failure ‘because it is not a permanent institution. It can be changed according to the whims and fancies of the Home Minister.’ When the issue of state notifications about bans not disclosing reasons for declaring an organization unlawful was raised, the home minister Y.B. Chavan said that when a tribunal would be in process, facts not disclosed in the notification would not be concealed from the tribunal. What Chavan did not say is that those facts need not be shared with the individual or association declared unlawful! In spite of such resistance to the UAP Bill, it became an act in 1967.
UAPA 1967 enables the central government to impose ‘reasonable restrictions’ on the right to association. Though the UAPA gave powers to the central government to impose all-India bans 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’. In other words, an organization can be banned by the central and state governments separately, with no recourse to an appeal. Also, much like in the CLA, the UAPA too makes the process of banning associations into a simple matter of the government announcing them as such.
Amendments to the UAPA in 2004 and 2008
The amended UAPA 2004 introduced provisions from TADA and POTA, both being laws that had led to severe rights violations. Among other issues, the amended 2004 UAPA made substantial changes to the definition of ‘unlawful activity’, included the definition of ‘terrorist act’ from the POTA, which lapsed, and also introduced the concept of a ‘terrorist gang’.
On 17 December 2008, another amendment of the UAPA was moved and adopted following the attack by armed gunmen in Mumbai on 26 November 2008. Barely a few days after the attack, the UPA government pushed through an amended UAPA which accorded even more powers to the central executive (see Chapter 2). In contrast to at least some members casting doubts on the UAP Bill during the debate in Parliament in 1967, few voices were raised in 2004 and 2008 against the abridgement of fundamental rights and the expansion of the executive’s powers over citizens. With this, the UAPA became an omnibus and permanent act that provided the government with grounds to ban associations under two provisions: under S. 2 as an ‘unlawful association’ (UA) and under S. 35 as a ‘terrorist organization’ (TO). Indeed, some of the provisions of the existing UAPA are far worse than POTA.
Inventing Yet another Behemoth
On 3 February 2012, the central government issued a notification for setting up the National Counter Terrorism Centre (NCTC). The NCTC is planned as a specialized body that will derive its powers
from the UAPA and will perform functions relating to intelligence and investigation.9 Although the NCTC is not planned as the primary intelligence agency, it has been endowed with powers which place it above all the state level agencies and departments. The rationale for this is that the NCTC will allow the government to deal with the ‘borderless’ security threat and the danger posed by ‘terrorism’. The NCTC is nothing but another move by the government to ride roughshod over citizens’ freedoms of expression, assembly and
association. But, it also undermines the federal character of the Indian Constitution by reducing the power of state governments. This factor has been the main bone of contention between the central and state governments and the NCTC’s fate hangs in balance because state governments have risen in protest against what they view as the central government’s attempt to reduce state governments’ power.
According to the notification, the Director of the NCTC can be the ‘designated authority’ to ‘control and coordinate’ all counterterrorism measures. This means that the NCTC will be authorized under Section 43 A of the UAPA to exercise the power to arrest, search, etc., without consulting the state government. Further, all state government functionaries, including police departments, are required to provide information, documents and reports to the NCTC. This duplicates work with more than one agency being empowered to act using the UAPA. It is also a clear infringement of the Constitutional requirement that law and order are to remain state governments. The state governments of Odisha, West Bengal, Bihar, Tamil Nadu and Gujarat have already protested this violation of the constitutionally-mandated federal structure. The executive order which set up the NCTC places it under the Intelligence Bureau, which itself was created by an executive order of the British Raj in 1887. Since the IB was not created by any legislation, the unaccountability and opaque character of IB’s functioning is duplicated in the NCTC. Moreover, the NCTC will possibly come to
exercise control over the National Investigation Agency, which was constituted by law.
Indeed, the setting up of the NIA without much debate on 31 December 2008 after the 26 November 2008 attack on Mumbai was itself a very controversial move. Under Section 3 (2) of the Act, NIA is empowered to take up for investigation ‘scheduled offences and arrest of persons concerned in such offences’ and enjoys ‘all the powers, duties, privileges and liabilities which officers have in connection with investigation of offences committed therein.’ Section 3 (3) mandates that any ‘officer of the Agency, or above the rank of Sub-Inspector may … exercise throughout India, any of the powers of the officer-incharge of a police station in the area in which he is present for the time being’. Besides, the central government is allowed under Section 6 (3) to determine ‘on the basis of information made available by the state government, or received from other sources … whether the offence is a scheduled offence or not and also whether … it is fit case to be investigated by the Agency’. The Schedule to the Act in fact lists eight laws including the UAPA, and sections 12–130 and 489 A–E of the IPC.
The encroachment into the domain ostensibly reserved for state governments is one aspect of concern. The bigger threat posed by the NCTC and NIA is that like the IB, they enjoy immense powers under the UAPA. Given the biases with which the UAPA operates in the Country, such agencies make a mockery of the freedom versus security debate because the freedoms of minorities and political dissidents who challenge the status quo are suppressed in order to secure the privileges and powers of power-hungry and corrupt rulers and Hindu rightwing elements. The next two chapters detail and critique the text of the UAPA and its application.
Page 27
Endnotes
1. Romesh Thapar vs The State of Madras, 26 May 1950 [1950 AIR 124, 1950 SCR 594].
2. V.G. Row vs The State of Madras, 14 September 1950 [AIR 1951 Mad (1951)].
3. V.G. Row vs The State of Madras, 31 March 1952 [1952 AIR 196, 1952 SCR 597].
4. A.K. Gopalan vs The State of Madras, 19 May 1950 [1950 AIR 27, 1950 SCR 88].
5. Brij Bhushan and Others vs The State of Delhi, 26 May 1950 [1950 AIR 129. 1950 SCR 605].
6. All quotations in this section are drawn from Parliamentary Debates, 29, 30, 31 May, 1 and 2 June 1950, pp. 9612–10105.
7. All quotations in this section are drawn from 22 January 1963, Lok Sabha Debates, pp. 5759–5841; and 2 May 1963, Lok Sabha Debates, pp. 13409–13506.
8. All quotations in this section are drawn from Rajya Sabha Debate, Vol. 61, No. 18, 16–18 August 1967, pp. 4313–4369; Lok Sabha Debate, Vol. VIII, No. 60, 10 August 1967, pp. 18595–18719; Lok Sabha Debates, Vol. XI, No. 26, 18 December 1967, pp. 7824–7925; Lok Sabha Debates, Vol. XI, No. 26, 19 December 1967, pp. 8134–8263; Lok Sabha Debates, Vol. XI, No. 26, 20 December 1967, pp. 8449–8560; Synopsis of Lok Sabha Debates, 11 December 2008, pp. 182–201 and 17 December 2008, pp. 1–
13.
9. Union Home Minister at Intelligence Bureau Centenary Endowment Lecture; New Delhi December 23, 2009
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