UAPA-IASToppers
Editorial Notes

[Editorial Notes] Jurisprudence of the judicial rubber stamp

The Tribunal’s recent decision is not a jurisprudence that respects fundamental freedoms such as speech and association. Rather, it is a jurisprudence of the judicial rubber stamp: courts acting to legitimise and enable governmental overreach, rather then protecting citizens.
By IASToppers
September 05, 2019

Contents

  • Introduction
  • IT’s Input
    • Key Amendments of Unlawful Activities (Prevention) Amendment Bill 2019
  • Role of Tribunal
  • Government’s ban on Jamaat-e-Islami group
  • Criticism of Tribunal
  • Tribunal’s Arguments
  • Conclusion

Jurisprudence of the judicial rubber stamp

For IASToppers’ Editorial Simplified Archive, click here

Introduction

  • Recently, amendments to the Unlawful Activities (Prevention) Act (UAPA), allowing the Central government to designate individuals as terrorists, caused public anger.

UAPA

  • Critics said that giving such sweeping powers to the political executives would result in abuse.
  • In response, government argued that the UAPA provided for a system of checks and balances which would ensure that governmental abuse could be swiftly reviewed and rectified.

IT’s Input

Key Amendments of Unlawful Activities (Prevention) Amendment Bill 2019

  • The Bill amends the Unlawful Activities (Prevention) Act, 1967.
  • The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.

Who may commit terrorism

  • Under the Act, the central government may designate an organisation as a terrorist organisation if it is otherwise involved in terrorism.
  • The act has no provision to designate individual terrorist. Therefore, when a terrorist organization is banned, its members form a new organization.
  • The Bill empowers the government to designate individuals as terrorists on the same grounds.

Approval for seizure of property by National Investigation Agency (NIA)

National_Investigation_Agency_India

  • Under the Act, an investigating officer is required to obtain the prior approval of the Director General of Police (DGP) to seize properties that may be connected with terrorism.
  • However, many times terror accused own properties in different states. In such cases, seeking approval of DGPs of different states becomes very difficult and the delay caused by the same may enable the accused to transfer properties.
  • The amendment empowers Director General of NIAto forfeit a property which represents proceeds of terrorism in relation to an investigation being conducted by NIA.

Investigation by NIA:

  • Under the Act, investigation of cases may be conducted by officers of the rank of Deputy Superintendent or Assistant Commissioner of Police or above.
  • Due to the shortages of Deputy Superintendent of Police (DSPs) in NIA, the Bill additionally empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases.

Insertion to schedule of treaties

  • The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act. The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979). 
  • The Bill adds another treaty of International Convention for Suppression of Acts of Nuclear Terrorism (2005).

Role of Tribunal

  • UAPA act requires (even after amendment) that the government should provide firm evidences of putting ban on any terrorist organization.
  • The government’s decision be contested by the banned association before a Tribunal, consisting of a sitting High Court judge within six months.

Government’s ban on Jamaat-e-Islami group

Jamaat-e-Islami-group

  • Recently, UAPA Tribunal confirms the government’s five-year ban on the Jamaat-e-Islami group in Jammu and Kashmir (Jel, J&K).
  • The government’s ban was based on its opinion that it was indulging in activities to disrupt the territorial integrity of the nation.
  • However, government did not disclose the evidences, not even to the Jel, J&K, on which it was banned saying that it was too sensitive to be disclosed.
  • The JeI, J&K argued that, names in its membership register had nothing to do with criminal activities.
  • The problem, however, is that its membership register had been seized by the government. Hence, the main source of evidence of Jel, J&K, on which it could have rely upon to prove their innocence is with government.
  • The Tribunal violated the basic principle of justice, using kangaroo-court style, by not giving evidence of the unlawful activities to the association on which it could have defended itself.

Criticism of Tribunal

  • A five-year ban upon an association was upheld by tribunal on the basis of secret evidence that the association had neither the chance to see, nor to rebut.
  • The most valuable piece of evidence that the association had to defend itself was seized by the government and the Tribunal used the absence of that piece of evidence against the association.

Tribunal’s Arguments

  • The Tribunal made multiple references to how the UAPA allows for deviation from the rules of evidence in order to serve larger goals.
  • As per Section 3(2) of UAPA act, government can declare an Association unlawful, while exempting the government from disclosing any facts that it considers against the public interest to disclose.
  • In turn, Jel, J&K argued that Section 3(2) of UAPA act is only the notification stage of UAPA proceedings, to section 4 and Section 9, which are the adjudication stages of the UAPA proceedings and misreads Rule 3 (2) to find that material can be considered without involving Jel, K&K.

Conclusion

  • On the one hand, freedom is provided to the government and loopholes have been created, while on the other, associations are asked to show the evidences which they do not have, in order to disprove the case against them.
  • It is a situation where, in the words of a famous English judge, the judiciary has gone from lions under the throne to mice squeaking under a chair in the Home Office, with consequences that the nation will one day bitterly regret.

 

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