extent practicable’, merely because the said rule qualifies the requirement to follow ‘the rules of evidence laid down in the Indian Evidence Act, 1872’ with the prefix ‘as far as practicable’? The meaning of the first expression is completely different from the actual rule under the Act,” the writ petition says. “Whether the rule against hearsay is not part of the substantive law of evidence? If yes, then whether sacrificing this rule, allegedly on the altar of practicability, does not amount to negating the possibility of the tribunal constituted under the UAPA of making an independent, ‘judicial determination’ upon the reference made to it?”
* The erstwhile SIMI members have also questioned the permissibility “to rely upon alleged confessional statements, recorded by police in connection with various offences, to indict SIMI in proceedings before the UAPA tribunal”. Agarwal says these statements are not admissible. “To treat these statements as capable of forming the basis for imposing a ban under the UAPA is a travesty,” he says.
* The writ petition also questions the amendment to UAPA that enables the government to extend the duration of ban from two years to five years and terms it arbitrary. Agarwal says in its “background note” to the parliamentary select committee that scrutinised the proposed Amendment Act, the home ministry had sought to justify this amendment, saying it will reduce the cost of administering this Act. “This is hardly a basis to curb the fundamental rights of the citizens,” he says.
* The petition questions the continuous ban on SIMI, asking “can the central government permanently deny the fundamental right of freedom of association under article 19 (1) (C)”. Agarwal says UAPA provides for a ban for a maximum period of two years, which was subsequently extended to five years by an amendment last year but SIMI is under uninterrupted ban for almost 13 years. “Is this uninterrupted ban legal? And can the central government rely upon older cases filed against alleged SIMI activists from the period as far as 2001 to justify its ban?” he says.