One of the main objectives of any law is to protect the rights of its subjects but when the law is prone to get misused or has vague and ambiguous provisions it becomes a tool to harm the citizens instead of protecting them. The Unlawful Activities Protection Act, 1967 is an example of such a law. Initially, UAPA allowed the government to designate any organization as unlawful but with every amendment, it was made more draconian particularly after the Prevention of Terrorism Act, 2002 (POTA) was repealed. POTA was one of the most ruthless laws India has ever seen which inherited many of its provisions from repealed Terrorism and Disruptive Activities (Prevention) Act (TADA). Thereafter, the provisions which were in TADA and POTA were included in UAPA by amendments in 2004, 2008, and 2013. Bail was made an exception instead of the norm, definitions were left vague, provisions that give unlimited power to the agencies were included and the overall procedure of the trial was made rigorous. This ruthlessness reached a height when the recent amendment of 2019 made it possible for the Union Government to declare even individuals as terrorists that too without following any formal judicial process.
People’s Union of Civil Liberties on the basis of data from the National Crime Record Bureau reported that only less than 3% of the arrests made under the UAPA between 2015 and 2020 have resulted in convictions. Out of 8,371 persons arrested under the stringent law, only 235 were convicted in the five years. Because of its inhumane trial procedure, many innocent people have to spend years in jail until the court acquits them for no evidence. In July 2021 a court in Chhattisgarh acquitted 121 tribals booked under this law for allegedly assisting Maoists in the 2017 Burkapal attack but no evidence was found against them. Similarly, Mohammed Ilyas and Mohammed Irfan were wrongly charged under UAPA in 2012 and were punished for an offence they never committed. Though a court acquitted them in 2021, the nine years they spent in Mumbai Jail could never be compensated. In another case, a local court in Gujarat’s Surat city acquitted 122 persons after 20 years who were arrested under UAPA for participating in a meeting organised by the banned outfit Students’ Islamic Movement of India (SIMI). There are hundreds of similar cases where people charged under UAPA were found innocent but the cruel system does not make authorities accountable for the wrong they have been committing for decades under the cover of such laws.
With an already extremely cruel record now the recent judgment of the Supreme Court in the case of Arup Bhuyan vs the State of Assam upholding Section 10(a)(i) of UAPA will only increase the risk of the abuse of power. As per section 10(a)(i) of the Act, a person, who is and continues to be a member of an association declared unlawful by a notification issued under section 3 which has become effective under section 3 (3) of this Act, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine. This provision which is prone to misuse was read down by the Supreme Court in the case State of Kerala vs. Raneef in 2011 in which Dr. Raneef was persecuted under UAPA merely because he treated one of the assailants who got injured while attacking a professor of Newman College. In this case, the Supreme Court while hearing a bail appeal relied upon American judgments namely Scales vs. United States (367 U.S. 203) in which Mr. Justice Harlan distinguished active, knowing membership and passive, mere nominal membership in an unlawful organization. Supreme Court further mentioned similar observations from the cases, Elfrandt vs. Russell (384 US 17-19) and Joint Anti-Fascist Refugee Committee vs McGrath 341 US 123 AT 17(1951). This case of Dr. Raneef which strongly opposed the concept of punishing people under UAPA solely based on membership in an unlawful association became the guideline for the High Courts and Supreme Courts to follow in similar cases.
Union of India approached the Supreme Court to seek a reference for a larger bench when the Supreme Court in Arup Bhuyan vs. State of Assam following Raneef case relied upon the same American doctrines and observed in paragraph 12 as under: “In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in light of our observations made above. Hence, mere membership in a banned organization 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. Hence, the conviction of the appellant under Section 3(5) of the TADA is also not sustainable.” In its decision, the Supreme Court restricted the scope of Section 3(5) of TADA which is pari materia to the section 10 (a)(i) of UAPA.
The above-mentioned judgment was challenged by the central government on the basis that relying on a foreign court while reading down a provision of UAPA is unreasonable particularly when the Union of India was not a party to the case and impugned section 10(a)(i) was not even in question. Thereafter the three-judge bench after hearing the arguments upheld the constitutionality of Section 10(a)(i) of UAPA and overruled its previous three judgments: State of Kerala vs Raneef, Arup Buyan vs. State of Assam and Indra Das vs. State of Assam on the ground that this Court in the case of Arup Bhuyan and Raneef has erred in straightway and directly following the US Supreme Court decisions and that too without considering the differences and the position of laws in India.
Supreme Court didn’t find the impugned section vague and thus observed that the mere possibility of misuse cannot be a ground and/or relevant consideration while checking the constitutionality. The fact which was not considered here is the data of the Union government and the PUCL report which clearly suggest that UAPA has not merely a possibility of misuse, but rather is already being misused at large, particularly after the last amendment, there is a sharp rise in the incarceration of several prominent human rights defenders, journalists, civil society leaders and even protesting students from different universities. Besides sedition, UAPA was used against agitating leaders during anti-CAA protests. It is an irony that a law that was apparently projected for the protection of citizens from unlawful activities is now being used as a tool to suppress their dissent.
It is pertinent to mention that this lengthy judgment of 145 pages did not address the ambiguity of the terms within the Act which makes it more draconian. Moreover while diminishing the difference between passive and active membership it has not even mentioned what makes a person, a member of such an association and on what ground it is to decide about who is and continues to be a member of such associations. Leaving these questions open to interpretation and reverting to the ‘guilt of association’ doctrine, the Supreme Court has sharpened the cruel tool to further incarcerate people without any checks and accountability.
The Author is a law graduate from Aligarh Muslim University and is currently practicing law at Jammu and Kashmir and Ladakh High Court. He can be reached at https://twitter.com/sajidbukharii
