New Delhi (Press Note): Since 2001, the Students Islamic Movement of India, SIMI, has remained banned as an ‘unlawful’ organization under the Unlawful Activities (Prevention) Act, UAPA for allegedly pursuing anti-national activities. Significantly, the ban provision under UAPA mandates the setting up of a Tribunal which is expected to adjudicate the government’s notification and also offer the banned organization the chance of challenging its proscription. SIMI has challenged its ban seven times and seven successive Tribunals have upheld the government’s decision. PUDR’s latest report, Banned and Damned: SIMI’s Saga with UAPA Tribunals, presents an analysis of the UAPA Tribunals’ through a detailed study of two recent judgements (2010 and 2012) and argues against the ban provisions and demands the repeal of the Act.
Offered below are some of the salient points raised in the report:
- The context: Historicizing the case of SIMI’s repeated bans, the opening chapter presents the contradiction between Tribunal verdicts and those of trial courts. Unlike the Tribunal judgements which routinely affirm the ban on SIMI, the trial courts have acquitted a large number of SIMI activists in the last fourteen years. (See pp 3-4). This trend of acquittal which has continued in recent times, including the Hubli conspiracy case, begs the question as to why the Tribunals remain unaffected by the trial court verdicts while pronouncing their ban orders. The remainder of the report addresses this question and analyses why the Tribunals function as a rubber stamp for the government’s notification, despite claims to the contrary.
- Repeated violations: Since 2001, as per law, a single High Court judge has presided over the UAPA Tribunals. However, in 2008 under Justice Gita Mittal, the ban on SIMI was lifted as the judge pointed out that the necessary ‘grounds’ supporting the ban notifications had not been provided by the Government in its submissions before the Tribunal. The three previous Tribunals, of 2001, 2003, 2006, had violated the Act as they merely ratified the Government notification without perusal of the necessary grounds. No action was ever taken against these violations and even the cancellation of ban order was reverted by the Supreme Court which stayed the Tribunal’s judgment for the entire period of two years, till 2010. (pp 7-8)
- Partisan provisions: The UAPA sections 3-9 deal with the ban provisions meant for unlawful organizations and mandate the procedural safeguards necessary for the functioning of the Tribunal. (pp 19-21). However, a closer look at the repeated phraseology in the judgments, “against public interest”/ “immediate effect”/ “sufficient cause”/ “as far as practicable”/ “so far as may be”, confirm that the fine print of the Act contains several caveats which ensure the dilution of safeguards. This erosion enables the government to implement bans with “immediate effect”, nullifying the need for any check or ratification. Additionally, the prosecution can withhold information before the Tribunal on the grounds of “public interest” and not show concrete evidence. Furthermore, the Tribunal’s pliant judicial character can restrict the grounds to only “one ground” for fulfilling the sufficiency cause and disregard mandated procedures of normal law on the plea of “as far as practicable” or “so far as may be”. (pp 19-25)
- Prejudiced proceedings: Since the process of adjudication is meant to adhere to those of a civil suit, the Tribunal offers wide latitude to the prosecution in building its case against SIMI. In keeping with the rhetoric of Islamic terrorism, the prosecution demonstrates country-wide “terror plots” hatched by SIMI suspects; denounces several organizations as “front organizations” which work subversively in favour of SIMI; and produces a sweeping range of “banned literature” which are said to circulate in the form of songs, poems, leaflets, receipts, books, CDs, DVDs and emails etc. In short, the prosecution’s case is that despite the ban, SIMI has been working clandestinely and grown through its proximity with Islamic terror organizations. (pp 8-12). Given the Tribunal’s lowered threshold for admitting evidence, the prosecution easily submits decade “old cases” with minor modifications as legitimate ones; furnishes police confessions as testimonies; and, withholds evidence on grounds of “public interest”. (pp 13-18)
- Unfair judgments: The ban provision along with Section 41 of the Act, which insists that an organization continues despite any “formal act of dissolution”, prevents any possible fair chance for the aggrieved organization. SIMIs claim that it had ceased to function after the ban was never accepted as the prosecution repeatedly rehearses its clandestine activities. Further, the locus standi of the erstwhile SIMI activists who appeared before the 2012 Tribunal as “aggrieved persons” allowed for under Section 6 of the Act was challenged by the government counsel on the grounds that the said the erstwhile activists had to be admitted as “members of a continuing organization”, a claim which was upheld by the Tribunal judge. (pp 24-26). The burden of this consequence, of being damned and banned, is best summarized in Shahid Badr Falihi’s submission before the 2010 Tribunal where he questioned this “unequal, unethical and unjust exercise” (p 6).
- The intent: Contrary to their role of providing checks and balances, the Tribunal judges’ readily concur with the prosecution’s case and the proceedings offer enough space for admitting personal biases in the name of adjudication. The role of the Tribunal is adjusted to suit the Governments’ needs as it cannot seek authenticity of the documents provided by, or ascertain the nature of the cases presented by the prosecution. Nor can it intervene in the situation of wide-scale arrests that happen with the declaration of bans with “immediate effect”. The procedural laxity of the Tribunal effectively colludes with the powers vested in the Government by the Act to ensure the latter’s continuance. (pp 26-28)
- Review Committees: While the analysis is restricted to a study of Tribunals meant for ‘unlawful’ organizations, the report urges for a need to challenge the review process meant for ‘terrorist’ organizations. The inherent arbitrariness of the Act is evident in its distinction between ‘unlawful’ and ‘terrorist’ organizations and delegation of a Review Committee instead of a Tribunal for dealing with ‘de-notification’ of terrorist organizations. The Review Committees are but euphemism for Advisory Boards which were rejected by the Supreme Court in the VG Row judgement (1952) and subsequently by the Jamaat-e-Islami Hind judgment in 1995. (p 29)
- Why UAPA must be repealed: Among the recent amendments of the Act, the enhancement of the ban period from two to five on the suggestion of the 2012 judge has effectively confirmed a permanent ban on SIMI. Yet, the successive Tribunals have admitted that these bans have been ineffective in curbing SIMI. Why then are bans sought, particularly since they engender a culture of proscription and clandestine activities? If the official argument is that bans are meant to curb violent actions and ideologies, then it is legitimate to question why only certain dissenting organizations are targeted in the name of national security. The discriminatory application is compounded by the fact that laws like the UAPA invent new categories of crimes based on intention through which the Government can target organizations and their members. The most routine charges levelled against SIMI is that of membership and of ‘unlawful’ activities and both carry stiff punishment ranging from two years to life imprisonment, including death penalty. The several case studies in the report show the sectarian nature of the Act as it has generated numerous social and economic hardships for Muslim men who stand accused under it. The report calls for the repeal of the Act as it generates sectarian politics, creates new classes of offenders based on their organizational affiliation and attacks them with legislated violence. (pp 29-32)
- In defense of political freedoms: The report emphasises the need to safeguard the Constitutionally guaranteed political freedoms, of speech, association and assembly, which stand threatened under the Act. Today, more than before there is a greater need to challenge the proviso, “reasonable restrictions” with its infamous history dating back to 1951 as large ambits of our political life are restricted by it. (p 30) The argument that violent acts can be contained by restricting these political freedoms is specious as it is the duty of the State to protect the lives of its citizens and take action against culprits under provisions of existing codes. The report concludes by affirming that it is better to err, if at all, on the side of freedoms than to get trapped in the ‘discrete charm’ of security phobia which thrives on fear and falsifications. (p 33)