By Basit Farooq and Aasif Wani
Fear tilts ideas and speeches towards acceptability of the ruling class. It doesn’t only work in favour of people in power but it also disserves the democratic values and weakens the rule of law. Any embargo on free-thinking shapes ideas towards a particular direction and limits horizons of mind. If everyone sticks to the archaic ideas and systems, new ones are unlikely to develop. To arrive at the better ways of governance, dissent and disagreement must be encouraged. The Prime Minister Narindra Modi says, “Criticism opens up the door to the shuddikaran (cleansing) of views.” Nonetheless, dissent invites the trouble of being declared anti national in Modi’s India. From journalists to activists, Modi administration does not shy away from invoking sedition and other stringent and draconian laws like Unlawful Activities (prevention) Act 1967 (UAPA) to silence dissent.Justice D. Y. Chandrachud has termed the “labeling of dissent as anti national” as “strike at the heart of democracy.”He has also called it “safety valve of democracy.” So dissent and free speech must be encouraged so that new ideas are born and new limbs-of-progress grow. But unfortunately, the current regime has scored well in suppressing free speech which is guaranteed fundamental right under Article 19(1) (a) of the Indian constitution, thus has put in danger the important pillar for the survival of Rule of Law. It has blatantly abused the discretionary powers — to narrow down spaces for dissent and disagreement – by casually invoking the counter-terrorism laws like UAPA, and has thus acted contrary to the main purpose of the Act.
The UAPA was passed for the purpose of maintaining unity, sovereignty and Integrity in India by ensuring protection of an established social order and acting as a firewall to terrorist and unlawful activities, as is set out in the preamble of the Act. The empowered Authority under the Act (i.e., the Central Government) has to therefore take its actions in accordance with the main policy of the Act and not otherwise.
However, the Act has been overtly used to serve the political ends, for the reason it vests wide discretionary powers in the hands of the Central government, and practice has proved it that where there is absolute discretion there is Arbitrariness. Earlier, the Central government could declare only an Organization or Association as unlawful or terrorist organization by merely publishing a notification in the official gazette (as is provided in section 3 of the Act) but the amendment brought to the Act by Central Government (under BJP) in 2019 has given more teeth to the Act and now an Individual can be included within its fold. Section 35(Amended) empowers the Central Government to categorize any individual as “terrorist” and add name of such a person in Schedule 4 of the Act. Conferring such a discretionary power upon the central government is antithesis to the Article 14 of the Constitution of India”. Section 35 further does not specify detailed grounds or reasons on which an individual can be termed as terrorist or can be booked for committing unlawful Activities, though there is a definition of unlawful Activity within the definition clause of the Act but that is ill drafted and is too vague to include any person within its fold. The Act is therefore silent whether there should be any materials available for the Central Government before declaring a person as a terrorist, and thus mere opinion of the govt. is required. The opportunity of being heard under the principle of Natural justice, known as “Audi Alteram Partem” i.e. no one should be condemned unheard and without producing evidence, has no place in the Act. An accused person can make an application only to the central govt. and if the application is rejected, then the matter has to be taken before the Review Committee; which is to be constituted by the central government itself. The Act doesn’t put any qualification for the members of review committee thus leave govt. again with wide discretionary powers to decide.
There are instances when ruling class has turned laws in their favour to achieve political mileage. When overbroad laws are handy to govt. — to stifle dissent — govt will most often than not use them to shunt away dissenting voices.
Such vaguely worded laws — which keep open all the directions for the administration –end up being misused. Sometimes even well-trained judges appreciate unreasonable charges against the accused and reach illogical conclusions. In Balvant Singh v. State of Punjab, Supreme Court (SC) rubbishing the conclusions reached by Trial court has said, “On what material did the learned judge find that the appellants had shouted the particular slogan belies our comprehensions… the trial judge also pressed into aid the allegations that the appellants had shouted ‘Hindustan Murdabad’… the learned judge seems to have drawn upon his imagination a course not permissible for a court of law.”So, this proves even courts are fallible and can err. Then, how can a simple belief of central government official be authority to declare anyone terrorist? The provisions of the Act are full of mischief. Only procedure well-reasoned and full of checks and balances should be authorized to bring home the terrorism tag to any person. No civilized nation can afford to set stage for capricious and whimsical ways to devour the liberty of any individual and stigmatize him for time to come. If the central government believes that an individual is involved in terrorism, he is named as a terrorist and arrested. The drafters of the Amendment have placed individual and organization on the same footing. There is no anticipatory bail, since the offence under Act is cognizable offence.
National Crime Records Bureau (NCRB) suggests that on average 75 percent of cases booked under UAPA (in year 2014, 2015 and 2016) were later acquitted; however the fabricated tag of terrorism will haunt them for the rest of their lives.
Imagine the plight of innocents, who are capriciously charged and made to go through the India’s criminal justice system which has an acute backlog crisis. India’s’ overburdened criminal justice system stretches investigation into months and years together. The clogged trials discourage people to fight the tedious and expensive legal battles. Who wouldn’t trim his ideas, self-censor his expressions and neutralize his comments — when fear of earning adverse opinion of the government– looms over? The stretched-out legal process in itself becomes the punishment. This fear devours brains in the country to expand horizons of thinking and thus breed an infertile lot of people which is detrimental to the progress and prosperity of any nation.
The UAPA is old and out dated, it suffers from many defects yet it continues to remain in force and continues to be strengthened through amendments. The laws like these are so prone to misuse that leaders have to come with assurances that they will not misuse them. The absence of accountability, power sharing and just and reasonable procedure makes the ways for abuse, corruption and subjugation.
The Statute passed by the Parliament has to hold good on the touchstone of the constitution which acts as a litmus paper. Any statute which is Ultra virus to the constitution is bad Law and is to be scrapped and declared null and void unless the repugnant part is removed.
The observation of the Supreme Court in Shayara Bano & Ors. v. Union of India & Ors’ is relevant, wherein the court dealt with the scope of challenging validity of an enactment on grounds of being manifestly arbitrary and observed, “Manifest arbitrariness … must be something done by the legislature capriciously, irrationally or without adequate determining principle. And when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.”
The (UAPA) legislation vests unfettered powers with government to declare any person as terrorist arbitrarily and it is in utter violation of freedom of speech and expression. From Bhima Koregoan (pending Romila Thapar Case) in 2018 to recent cases of Umer Khalid Activist, Gowher Gilani, Peerzada Ashiq and Masrat Zahra journalists from Kashmir — writers, journalists and activists have been bearing the brunt of anti terror laws. Justice Deepak Gupta has said, “Right to dissent is essential for democracy and criticism of the executive, judiciary, bureaucracy and the Armed Forces cannot be termed Anti National.” But the people in power are inappropriately using ‘National security’ to downplay the fair-criticism.
The procedure established by the legislation in declaring any person as terrorist is unreasonable and arbitrary. It doesn’t entitle the person to know the grounds, nor does it give him any fair hearing, one is convicted even before trial starts hence violating the basic principles of the Indian Constitution. The Supreme Court in “Maneka Gandhi v. Union of India (AIR 1978 SC 597) held that the, “procedure established by law has to be fair, just and reasonable, not arbitrary and fanciful; otherwise it’s not a procedure at all and also not satisfying Article 21.” The provisions of the Act as amended in 2019 also violate Right to Reputation considered as an intrinsic part of fundamental right to life with dignity under Article 21 of the Constitution of India and therefore terming/tagging an individual as, ‘terrorist’ even before commencement of trial or any application of judicial mind, does not mean following the ‘procedure established by law’ and is, thus, in violation of right to reputation of such an individual who is being categorized as terrorist and being added in Schedule 4 of the UAPA. The Apex Court has held in S Nambi Narayan v Sibi Mathews (Sept. 2018) that Reputation of An Individual Is an Insegrigable Facet of his ‘right to Life with dignity’ under Article 21. The UAPA Act is not only in violation of Indian constitution but also many international treaties to which India is a party, committing serious breach of international law.
The Act is in violation of International Conventions including international Covenant on Civil and Political Rights (ICCPR) and Universal Declaration of Human Rights (UDHR). The UDHR provide for Effective remedy (Article 8) and No Arbitrary arrest (Article 9).The ICCPR also under Article 2 (3), provides for the right to an effective remedy to anyone whose rights protected by the Covenant have been violated. Both of these covenants are violated by UAPA Act 1967.
These decades old harsh laws which are shoving off dissenting-India and putting democracy in danger need to be brought in line with international laws. Democracy flourishes with dissent but decays with crackdown on it. India while claiming itself to be the largest democracy is under obligation to respect basic democratic ideals and conform to the established principles of law and rule of natural justice. The violation of fundamental human rights cannot be justified and allowed to be carried out in different names. As long as countries such as India resort to unfair ways of curbing dissent and violating basic human rights, they can’t claim a moral high ground.
Aasif Wani, law graduate from Kashmir University Twitter @Aasifwani8 Email: email@example.com
Basit Farooq, is a final year law student from Kashmir University law school Email: firstname.lastname@example.org