The swoop down on activists in the country has led to a hashtag ‘Urban Naxals’ and revived the debate over the fine print of the Unlawful Activities (Prevention) Act against the backdrop of Constitutional guarantees and safeguards against arbitrary and vindictive state action. It may be naive to attribute political motives to all such cases as some of the activists faced similar action even during the previous dispensation.
National security is paramount. Activists are not above the law. But can a perceived threat to ‘public order’ be an excuse to clamp down on citizens triggering a chilling effect on freedom of expression? Can dissent be criminalised? Hitting the nail on the head, a three judge Bench of the Supreme Court in an interim order in Romila Thapar & Others Vs Union of India observed that “dissent is the safety valve of democracy. If dissent is not allowed, democracy will burst under pressure.”
What has caused a public outcry against the sweeping arrests is the ambiguity over the exact charges, the context and timing. If they made inflammatory speeches, was there a direct cause and effect made out between their communication and disruption of public order? The Supreme Court’s observation in S.Rangarajan Vs Jagjivan Ram is instructive. “The anticipated danger should not be remote, conjectural or far fetched. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparable like the equivalent of a ‘spark in a power keg’.”
The Unlawful Activities (Prevention) Act, 1967, (UAPA) contains provisions which were meant to be reasonable restrictions on fundamental rights, particularly under Article 19(1) (a) to (e) such as freedom of speech and expression, to assemble peacefully without arms, to form associations, to move freely throughout the country and reside and settle in any part of the territory of India. It may be recalled that statutes like the Terrorist & Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA) were repealed due to serious legal flaws such as making confessions to police officers admissible, contrary to Section 25 of the Evidence Act. The UAPA has remained the sole anti terror legislation.
Section 2(1)(o) of UAPA contains a lengthy definition of ‘unlawful activity’. It means “any action taken by such individual or association, whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise, is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or which causes or is intended to cause disaffection against India.” What exactly constitutes ‘disaffection’ has not been spelt out.
However, if you look at Section 124A of the Indian Penal Code (IPC) which has a similar definition of the offence of sedition, the expression ‘disaffection’ has been explained as “disloyalty and all feelings of enmity”. Here, Explanations 2 and 3 of the penal provision, state that “comments expressing disapprobation of the measures or administrative action of the government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence.” Upholding the constitutional validity of the sedition provision, the Supreme Court in Kedar Nath Singh Vs State of Bihar on the ground of “permissible legislative interference with fundamental rights”, made it clear that “an intention or tendency to create disturbance of law and order or incitement to violence” is necessary to invoke this provision.
Membership of un unlawful association under Section 10 of UAPA is sweeping. It includes “taking part in meetings”, “contributing, receiving or soliciting” funds or materials “in any way assisting the operations of such association.” So would mere possession of pamphlets or literature on a banned association constitute membership? The Madras High Court in P.Nedumaran Vs state made a pertinent observation that being “wedded to a particular philosophy but, it cannot be said that they have a shadowy past so as to be deprived of bail.”
The Supreme Court in Arup Bhuyan Vs state of Assam was categorical that “mere membership of a banned organisation 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.” As our fundamental rights are similar to the Bill of Rights in the Constitution of the United States, the apex court in the Arup Bhuyan case, referred to decisions of the US Supreme Court. In Elfbrandt Vs. Russell, the US Supreme Court rejected the doctrine of ‘guilt by association’.
The second limb of the provision seems reasonable as it relates to “possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and committing any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property.” Similarly, the illustration of the different kinds of terrorist acts under Section 15 seem clear and justifiable.
The most draconian provisions of UAPA are in Section 43D. For instance, the period for police custody is doubled to 30 days, imprisonment can be indefinite without a trial and getting bail is almost impossible with the risk of subjectivity creeping in. Such stringent provisions underscore the need for more circumspect application of the dreaded law.
(The writer is an advocate at the Madras high court, columnist & author)...