Amendments to the Unlawful Activities (Prevention) Act, 1967 (UAPA) were passed recently. Click here to know more.
A close reading of UAPA Tribunal orders shows how fundamental principles of fair procedure are being ignored.
How do UAPA works?
Before the 2019 amendments, the UAPA could be used to ban associations and not individuals.
To this end, the UAPA required and still requires that the ban must clearly spell out the grounds on which the government has arrived at its opinion.
It may then be contested by the banned association before a Tribunal, consisting of a sitting High Court judge.
As a number of judgments have held, the task of a UAPA Tribunal is to carefully scrutinise the government’s decision.
In doing so, it should keep in mind that banning an organisation or a group infringes the crucial fundamental freedoms of speech and association.
What are the shortfalls?
A close reading of UAPA Tribunal orders makes it clear that the requirement of judicial scrutiny is not implemented in true spirit.
The tribunal makes it easy for the government to prove its case.
In effect, the tribunal departs from some of the most fundamental principles of fair procedure.
They act as little more than judicial rubber stamps.
This is made evident by a recent UAPA Tribunal Order (on August 23, 2019) confirming the government’s ban on the Jamaat-e-Islami, Jammu and Kashmir (“JeI, J&K”).
What was the charge on JeI, J&K?
The government’s ban on the JeI, J&K was based on its opinion that the association was -
supporting extremism and militancy
indulging in anti-national and subversive activities
indulging in activities to disrupt the territorial integrity of the nation
In support of this opinion, the government said that there were a large number of First Information Reports (FIRs) against various members of the association.
Among other things, the JeI, J&K responded that for almost all of the FIRs in question, the people accused had nothing to do with the association.
It was also argued that this could be proven by looking at the association’s membership register.
But, the membership register had been seized by the government.
Why is the ban on JeI contentious?
If the government proves the case with sufficient evidence of wrongdoing against JeI’s members, it could be resolved straightforwardly.
However, the government resorts to the “sealed cover jurisprudence”, submitting material that it claimed was too sensitive to be disclosed.
The material on the basis of which the ban is justified is crucial for the association to defend itself.
But, notably, the evidence was not disclosed even to the association and its lawyers, who were contesting the ban.
More worryingly, the UAPA Tribunal took a decision on the legality of a ban by looking at secret material that is withheld even from the association.
It was said that the evidence in the sealed covers was carefully examined and the tribunal was convinced of them to be “credible documents.”
The association’s request to the government to produce the membership register also failed as the government submitted even this piece of evidence in a sealed cover.
What is the larger concern?
In essence, the fundamental freedoms of speech and association have been violated on the basis of secret evidence.
The most basic rules of procedural justice and fairness seem to have been compromised.
Courts seem to be acting to legitimise and enable governmental overreach, rather than protecting citizens and the rights of citizens against the government.
