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(This is a guest post by Sharanya Shivaraman.)

The Unlawful Activities Prevention Act (UAPA) was passed two decades after India’s independence in the year 1967 in order to keep a check on unlawful activities, terrorist organisations and other notorious groups. It also empowers the Central Govt. to ban organisations which are believed to be involved in unlawful activities. As public outrage against the erstwhile TADA and POTA grew stronger, the absence of Constitutional safeguards under counter-terrorism laws also came to be heavily criticised. In 2004, through an amendment, the safeguards under the UAPA were diluted, leading to the close resemblances between the POTA and the amended provisions of UAPA. These similarities were in the form of difficulty in obtaining bail, extended period of police custody etc. Over the last few decades the UAPA has assumed the place which the erstwhile terrorism laws such as POTA and TADA occupied and has become a potent law for prosecution of anti-state activities. It is not unusual for public security legislations to have maximum period in police custody, incarceration without a chargesheet and restrictions on bail. Yet, if one were to focus on the application of this law, a clear picture takes shape; of the invocation of the UAPA to curtail political dissent.

The laws which are instituted to curtail instances of sedition and disaffection against the state are couched in broad terms; for instance, Sec. 124A of IPC. It leaves the discretion of classifying acts falling within the category of offences under this law, to the authorities investigating such crimes. However, while interpreting the scope of such broad and overarching provisions a balance has to be struck between the intent and sensibility of the legislature while enacting the law and the freedom of individuals to be protected from abuse of such laws.

The recent arrest of activists following the Bhima Koregaon protests under the provisions of UAPA brings into perspective certain issues relating to interpretation of penal statutes and makes it imperative to examine the assistance provided by Courts in delineating the scope of national security and counter-terrorism laws. In the past, arrests have been made under this law for acts ranging from conspiring to commit terrorism to possession of Maoist literature and supporting unlawful associations and organisations.

A pertinent question arises in this regard. In a statute that confers a wide discretion to make arrests pertaining to various offences, how is the colourable use of discretion curtailed? The decision of Kerela High Court in case of Abdul Salam v. NIA is of some importance. The question was whether circulation of fake currency falls within the scope of ‘unlawful activity’ under the UAPA.

Looking into the Legislative intention:

The Court looked into whether circulation of counterfeit destroys the ‘economic security and fabric’ of the country. In this regard, the Court concluded that

“Finance of the country is something different, having broader connotations and applications in the country’s economic set up, and it cannot be brought down to a narrow concept or object as property. So also, the term “security” occurring in Section 15 of the U.A (P) Act cannot be stretched by interpretative process to include economic security. To understand what exactly security is, as meant by the law, the whole section must be read and appreciated carefully.

It is quite clear from such interpretation and understanding that the term security meant under the law is the country’s security vis-a-vis., law and order situations and internal or external affairs of the country, and not financial or economic fabric.”

[Note: The concept of economic security was only introduced in the amendment and the Court concluded that it cannot be read into the scheme of the Act prior to the Amendment.] This also shows that where there is dilemma between giving an expansive meaning to a statute as opposed to a restrictive meaning, the Courts favour a restrictive and conservative approach while interpreting penal statutes. Hence where the statute is ambiguous and unclear as to its precise boundaries, the Court can streamline police discretion using an essential tool of interpretation i.e. looking to the legislative intent and analysing if the alleged acts threaten to cause disruption to the peace and security of the country in the manner which the statute envisages and seeks to prevent. In this context, the question still remains as to what grants legitimacy to the arrest and detention of Prof. Shoma Sen or Sudha Bharadwaj under this Act and it needs to be seen how the judiciary reconciles such arrests with the purpose for which the statute was enacted.

Literal interpretation and violation of Fundamental Rights:

While reviewing cases under the UAPA, Courts have encountered the issue of unwarranted application of the law and the consequential violation of fundamental freedoms. In such scenarios, Courts have looked into the violation of Fundamental Rights as a legitimate basis for curtailing the scope of the Act. In case of Jyoti Chorge v. State of Maharashtra, the Court interpreted the provisions of UAPA in light of fundamental rights of Jyoti who was arrested for possession of books containing Maoist literature. Justice Thipsay noted, “that possession of a particular social or political philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is a shocking proposition in a democratic country like ours.” Here, it was observed that the Govt’s interpretation of the law runs contrary to the freedoms and stated that the alleged act did not prima facie amount to an offence.

Where there is a prima facie violation of Fundamental Rights due to overbreadth in application of the law, an approach departing from literal rule of interpretation, (popularly applied to penal statutes) has also been adopted. In case of Sri Indira Das v. State of Assam, it was held that the offence under Section 10 of the UAPA, which on its plain language makes mere membership of a banned organisation a crime; has to be read down by departing from the literal rule of interpretation. Otherwise the said provision will become unconstitutional as it is violative of Articles 19 and 21 of the Constitution.

Strict interpretation of penal statutes and principle of ejusdem generis:

A rule of interpreting penal statutes is to construe it strictly. UAPA, being a stringent law, its provisions are to be interpreted more strictly. In R. Kalyani v. Janak C. Mehta, a case dealing with prosecution of individuals for affairs of the company, the Court examined whether vicarious liability can be fastened on individuals for offences of cheating and forgery if there is absence of the clear provision in the penal statute for the invocation of vicarious liability. This case is relevant because it was here that the Court enunciated a principle of strict interpretation which has resonated with various cases dealing with interpretation of penal statutes. The Court in this case, held that “we must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms, they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive”. This principle, also affirmed in Abdul Salam’s case, casts a serious doubt on the unscrupulous arrests of members of Kabir Kala Manch a few years ago under various provisions of the Act. This only shows that there is a clear gap in the judicial understanding of the law and its understanding by police and investigative authorities.

Another principle which is likely to guide the interpretation of the critical sections of the Act is ejusdem generis. Section 15 defines a terrorist act and clause (a) states “by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause”. If not clarified, such areas are open to possible misunderstandings.

The phrase “by any other means of whatever nature to cause or likely to cause” needs to be interpreted in the specific context in which it is situated. As per ejusdem generis general terms following particular expressions take the colour and meaning as that of the preceding expressions. Applying this rule, the words will relate only to weapons of like nature and cannot be taken to connote anything more than that. Similarly in case of Ranjitsingh v. State of Maharashtra, the Court applied the principle of ejusdem generis while interpreting the term ‘other unlawful means’ in Section 2(1)(e) of Maharashtra Control of Organized Crime Act (MCOCA) which defines organised crime. The Court stated that the general words “other unlawful means” will have to be interpreted with reference to the objects of MCOCA for which it was enacted i.e. prevention and control of criminal activity by a person or a gang and for matters connected and incidental to organized crime and organised crime syndicate.

The principle of ejusdem generis attempts to reconcile the general terms used in the statute with the more specific terms. It serves as an aid to discover the legislative intent behind enacting a certain provision. Hence where a provision is peppered with vague or general terminologies, looking to the legislative intent saves the provision from misuse or dereliction in interpretation.

Contemporary application of UAPA:

The reason why UAPA is of importance is because it compromises on certain crucial rights by virtue of provisions raising a strong presumption against bail. A broad interpretation of the law has led to, among other things, a pattern of classifying terror related offences on shaky grounds, diluting the threshold for establishing criminal conspiracy and constantly expanding the scope of ‘unlawful activities’ which can be brought within the ambit of the Act. UAPA, being a penal statute should be construed more cautiously to prevent this from happening.

‘Association Fallacy’ and the curious case of Dr. GN Saibaba:

The history of UAPA is only a hint of the political relevance of this law. However harrowing instances such as Dr. GN Saibaba’s case make it difficult to reconcile with the guarantee of basic freedoms and fundamental right to equality and due process. In G.N Saibaba’s case, a judgment of the Gadchiroli Court running over 800 pages contains numerous procedural and evidentiary drawbacks raising grave concerns pertaining to the fairness of procedure. However, in order to further my argument, I shall restrict my critique to a single aspect of the judgment focusing on his association with the organisation Revolutionary Democratic Front (An alleged front organisation for the CPI(Maoist) which is a banned organisation under the UAPA. Dr. Saibaba, along with five others were prosecuted for the offence punishable under sections 13, 18, 20, 38, 39 of the UAPA (primarily to hatch criminal conspiracy to wage war against India, reduce faith in democratically elected government, spread secessionist and rebellious thoughts and to continue the unlawful activities of the CPI(M) through its frontal organisation-RDF).

Firstly, there is no provision in the law for declaring an organisation to be a frontal organisation and it is uncertain how the Sessions Court derived the power to declare the RDF as a front for another banned organisation in order to prosecute Dr. Saibaba given that there is no gazette notification to this effect by the Central Government. Again, as compelling as it might be to highlight the treatment of evidence, overstepping of jurisdiction by the Sessions Court and procedural inadequacies, I shall not delve into them as they are not particularly relevant for this argument and moreover, there is a sincere belief that these defects will be cured in appeal. However, the convictions of Dr. Saibaba and others for the offence of being a member of a terrorist organisation (Section 20, 38), supporting terrorist organisation (section 39), conspiring to commit terrorist acts (section 18), committing unlawful acts (Section 13) are fundamentally premised on support, advocacy and sympathy for the frontal organisation of CPI(M) which is a scheduled terrorist organisation in the Act. From the provisions of the Act, the inference of criminal conduct does not require the authorities to establish a connection with actual commission of crime or even an attempt to commit the crimes which the Act seeks to prohibit. This is problematic as mere membership of an organisation does not lead to any of the consequences which the Act envisages in its preamble to be a ‘terrorist or unlawful act’. Perhaps this is an inherent flaw in the law which needs to be remedied urgently. The ability to prosecute someone for association with an ideology or even an illegal or harmful organisation, allows the authorities and Courts to draw sweeping conclusions and inferences regarding the ‘criminal’ nature of their association. While the decisions suffers from a flawed notion of ‘association fallacy’, there is little that Courts can do to help the situation apart from striking down the provision altogether.

In the past, Courts have struck down provisions of penal statutes on account of vagueness and uncertainty when they have led to the misuse of penal provision, harassment and encroachment of fundamental rights. Even though, UAPA is a specimen of similar forms of misuse and suffers from vague and broad legal drafting, such intervention of Court is unlikely in case of UAPA because of the nature of this law. UAPA, being a counter-terrorism law presupposes the need for certain legislative overbreadth and imprecise definitions since the protection of national public requires a scale of discretion in the hands of public authorities.

In Arup Bhuyan v State of Assam, the Appellant was being prosecuted under Section 3(5) of the TADA which criminalises the membership to a banned organisation. The Court stated that “although the appellant has denied that he was a member of ULFA, even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member.” Borrowing from the case of Clarence Brandenburg v. State of Ohio, the Court observed that advocacy of criminal syndicalism or violence as a means of achieving political reform is not per se criminal. It will only transcend into the illegal sphere if it incites imminent lawless action. Unlike the US Supreme Court in the above case, the Court did not go to them complete length of saying that statute criminalizing mere association with banned organisations, is invalid. Yet, it still drew inspiration from the principles of upholding personal liberties enunciated in the US case. The Court held that “Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.” This approach might help curb the overbreadth that Dr. Saibaba’s case suffers from.

While subjecting the UAPA to a successful constitutional challenge might be ambitious, Courts examining the constitutional validity of erstwhile POTA have stated that those exercising authority under this law are expected to prevent acts of terrorism within the constitutional bounds. Even though the Courts have consistently maintained that they are precluded from treading into questions of policy, as guardians of fundamental rights, they can contribute in two ways; Firstly, by vitiating the acts which blatantly transgress upon the right to fair trial of citizens and secondly, by clarifying the scope of exercise of police powers by interpreting the law in a manner that is most consistent with the fundamental rights and freedoms. In fact, the extended periods of pre-trial incarceration without bail (as witnessed in cases such as Chadrashekhar Azad Ravan), warrants the intervention of the Courts in clarifying the manner in which this law is to be applied to offences, conditions mandating the grant of bail, prerequisites for extending custody. In such a widely applied law, the scope of misuse further revives the discussion on the necessity to periodically review such precarious statutes. The absence of a sunset clause in the UAPA is thus a major cause for concern since that is the only legitimate claim to review the Constitutional validity of a law which is otherwise outside the ambit of judicial scrutiny and placed snugly within the parliament’s hands.