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Friday, April 16, 2021

The state’s power to ban is expanding. It must be challenged

Under each new regime, UAPA grants greater powers to the state and has fewer safeguards for individual rights.

Written by Nitika Khaitan |
Updated: March 9, 2021 8:58:39 am
The work of challenging these provisions, which impinge on our fundamental freedoms, must be equally sustained over time.

In the widely-reported bail proceedings in the Disha Ravi case, one of the grounds cited by the prosecution was Ravi’s alleged links to Sikhs for Justice (SFJ). SFJ is a pro-Khalistani organisation, banned and designated “terrorist” under the Unlawful Activities (Prevention) Act, 1967 (UAPA). In Ravi’s case, the court inter alia held that no link had been established between her and SFJ, and granted her bail. But the very invocation of links to a banned organisation as grounds to prosecute or deny bail raises important questions. What does it take to ban an organisation? Once banned, what consequences emerge for the organisation, and for anyone who might be in its orbit?

The UAPA has run riot with banning regimes throughout its 54-year history. Today it provides multiple ways to ban organisations. Worryingly, each regime has come with greater powers for the state and fewer safeguards for individuals, whittling away basic liberties.

Initially in 1967, the Act concerned itself with banning “unlawful” associations alone and had no mention of terrorism. “Unlawful activity” was defined as activities including speeches, writings etc that supported secessionist claims or questioned India’s sovereignty. The central government could ban any association as unlawful for two years if, in its opinion, the association encouraged unlawful activity. Once an association was banned, a host of people could be prosecuted — not just members, but anyone who assisted the association in any way.

Recognising the high stakes involved, the Act provided some safeguards. The government’s mere opinion of whether an organisation “encouraged” secessionist claims wouldn’t be enough. A tribunal consisting of a High Court judge would have to hear the banned association and decide within six months whether to confirm or reject the ban. There were still grave problems with these provisions. If they showed up to defend the association, members could technically be prosecuted, because membership became a crime from the day the association was banned. The underlying definition of unlawful — as including words that “support” secessionist claims or “question” sovereignty — was broad and vague, and potentially represented an unconstitutional incursion into free speech.

But these problems pale in comparison to what followed. In 2004, the Prevention of Terrorism Act was repealed and its provisions were largely inserted verbatim into the UAPA. Now under the UAPA, organisations can be banned as “terrorist” as well. Unlike with “unlawful” associations, there is no judicial oversight. The only condition necessary for a permanent ban is that the central government believes an organisation is “involved in terrorism.” Circularly, an organisation can be deemed involved in terrorism if it has committed, promoted or was “otherwise involved in” terrorism. In 2008, the definition of the terrorist act was changed further, taking it far beyond what we usually associate with the term — to take hostages or use bombs or lethal weapons or hazardous substances. It even went beyond bringing under its ambit intention to strike terror or threaten India’s security. If someone were to, for instance, commit an act likely to threaten India’s ecological security by using non-lethal means of whatever nature, they can be prosecuted for terrorism.

Based on such over-broad and circular definitions, the Centre can permanently ban organisations as terrorist. The organisation’s only remedy is to appeal to an opaque and unaccountable Review Committee housed within the very organ of state that banned it. The government need not provide reasons for its ban, and the committee need not ever make its hearings public. Yet a dizzyingly wide range of people become liable for prosecution after the ban, including persons alleged to have helped organise events addressed by persons who may be “associated with”, but not even members of, terrorist organisations.

In 2019, the government extended its powers of banning organisations as terrorist to designate individuals as terrorists as well. The potency of this amendment lies in its complete ambiguity. On one hand, the changes do not create any new punishment for terrorist individuals, almost as if to indicate that by now, the power to ban exists for the sake of banning alone. On the other hand, they leave open terrifying possibilities. For example, harbouring someone knowing them to be a terrorist is a crime under the UAPA; and the Act also allows the government to forfeit the property of terrorist individuals without prosecuting them. If these sections are interpreted as referring to designated terrorists, then regardless of whether the government’s designation is legitimate, all the property of that individual can be seized without their guilt ever being proved in a trial, and anyone living with that individual could be prosecuted.

These multiple overlapping regimes of banning often lead to bizarre results. At least one of the banned organisations, the Students Islamic Movement of India, has been declared both unlawful and a terrorist organisation. The government keeps setting up tribunals to confirm its declaration of the association as unlawful, even though the tribunal judgment has no practical effect, as the organisation is banned as a terrorist organisation anyway. Over the years, the government has thus given itself increasingly wide powers of banning for increasingly unclear reasons. The work of challenging these provisions, which impinge on our fundamental freedoms, must be equally sustained over time.

This article first appeared in the print edition on March 9, 2021 under the title ‘Law of overreach’. The author is a lawyer based in Delhi

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