Tag: GS-3|| Security||Internal Security Threats|| Terrorism

What is the issue?

A close reading of UAPA Tribunal orders shows how fundamental principles of fair procedure are being ignored.

Background

Recently, Parliament has cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 or anti-terror law . In the wake of increasing terrorist activities in the country; the NDA government has changed the certain provision of the Unlawful Activities (Prevention) Act, 1967 to tackle terrorism and Naxalism in the country.

. In the wake of increasing terrorist activities in the country; the NDA government has changed the certain provision of the to tackle in the country. Lashkar-e-Taiba founder Hafiz Saeed and Jaish-e-Mohammad chief Masood Azhar have been designated as Individual terrorists under the legislation.

Working of UAPA

Ban on Associations and individuals Before the 2019 amendments, the UAPA could be used to ban associations and not individuals.

Grounds must be clearly defined 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.

Tribunal It may then be contested by the banned association before a Tribunal , consisting of a sitting High Court judge.

Scrutinize Government Decision As a number of judgments have held , the task of a UAPA Tribunal is to carefully scrutinize the government’s decision. In doing so, it should keep in mind that banning an organization or a group infringes on the crucial fundamental freedoms of speech and association.



Shortfalls of the UAPA tribunal

A close reading of UAPA Tribunal orders makes it clear that the requirement of judicial scrutiny is not implemented in true spirit.

They act as little more than judicial rubber stamps.

The tribunal makes it easy for the government to prove its case.

the government to prove its case. In effect, the tribunal departs from some of the most fundamental principles of fair procedure.

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”).

Charges 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.

, the government said that there 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?

Sealed Cover Jurisprudence 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. 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.



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 legitimize and enable governmental overreach, rather than protecting citizens and the rights of citizens against the government.

Way forward

The center needs to address the concerns related to the UAPA and related tribunals. There needs to be a check on the misuse and misappropriation of the amended act so that the Fundamental rights of an individual in particular and citizens, in general, are not affected.

so that the Fundamental rights of an individual in particular and citizens, in general, are not affected. The law should be put into effect constructively and efficaciously and should be able to protect the integrity and sovereignty of the country.

References