In recent times, amendments to the Unlawful Activities Prevention Act (UAPA) that allow the central government to designate individuals as "terrorists", have been in the news. The amendments have been criticized on substantive grounds, on the basis that they vest too much unchecked power in the central government, and can enable social and political persecution. In all this, however, it is important to remember that the dangers of the UAPA are not just in its substantive provisions but in its jettisoning of core procedural safeguards that protect individuals and vulnerable groups from arbitrary state power.
The current debate, therefore, also gives us an opportunity to refocus attention on some of the core aspects of the UAPA itself. And there is no better test case for doing so than a pending proceeding before a UAPA tribunal. This is the case involving the banning of the Jamaat-e-Islami, Jammu And Kashmir ['JeI, J&K', or 'Jamaat J&K'] by the central government, acting under the powers given to it by the UAPA. Under the UAPA, a ban must be reviewed by a Tribunal – consisting of a sitting judge of the High Court – and ratified or rejected within a period of six months. In the Jamaat, J&K Case, final arguments before the Tribunal – in this case, Hon'ble Justice Chandrashekhar of the Delhi High Court – took place earlier this month, and a decision is expected before the 27th of August.
During the course of final arguments – witnessed by the present writer – three core issues emerged. Each of these issues go to the heart of procedural equity, fair trial and – ultimately – ensuring that there exists parity between the State and individuals or groups in the context of the curtailment of core fundamental rights, such as the freedom of speech and association.
The Shifting Case
Section 3(1) of the UAPA authorizes the central government to declare, by notification, an association unlawful, if, in its opinion, that association is, or has become, an unlawful association. Section 3 (1) and 3 (4) require that the notification is given wide publicity and every effort is made to serve it upon the association. Section 3(2) requires that the same notification that declares the Association unlawful set out the grounds on which the declaration was made, while exempting the government from disclosing any facts that it considers against the public interest to disclose. These requirements – that the notification declaring the central government's opinion that an association has become 'unlawful' is given wide publicity and that the same notification also contain the grounds for the Central government's opinion – are important procedural stipulations because they ensure that the association and all persons with links to the association are put to notice of the foundation – i.e. the "grounds", or the reasons or justifications – for the Central government's declaration. Under Section 4 of the UAPA, the UAPA Tribunal is then tasked with deciding whether there exists "sufficient cause" for the association to be declared unlawful. In other words, the Tribunal must review the grounds mentioned in the notification on which the central government has formed its opinion, and examine whether those grounds are sufficient or not.
The Tribunal's role flows from some key observations in Indian civil rights jurisprudence. In the famous V.G. Row case, the Supreme Court held that the consequences of banning an organization are so grave, that both the factual and the legal bases of the State's case must be reviewed through an independent judicial decision. The provisions of the UAPA are based upon this fundamental proposition. And in 1995, in Jamaat-e-Islami Hind v Union of India, the Supreme Court further held that UAPA proceedings are in the nature of a lis between two parties in which the Tribunal must weigh the material on the basis of which the notification was issued, after granting the association opportunity to contest that material.
Now, in the ongoing Jamaat proceedings before the Tribunal, the Association has argued that the notification declaring the Association unlawful did not set out the "grounds" or the basis for the declaration and that what passed for "grounds" was vague and did not contain facts which would put the association to notice of what the case against it was. The central government has replied that the notification's setting out that the association was "supporting extremism and militancy", "indulging in anti national and subversive activities" and activities "to disrupt the territorial integrity" and so on, was sufficient factual detail to constitute the "grounds" for its decision, and in any case further factual details were set out in a separate background note it had supplied to the Tribunal. The Jamaat-e-Islami Jammu and Kashmir Tribunal, therefore, will be first required to decide whether the central government's notification put the association to adequate notice of the "grounds" for its action; and secondly, it must decide whether the UAPA's requirement that the notification itself set out the grounds can be said to have been met if the grounds are not set out in the notification but in a "background note" supplied to the Tribunal.
As importantly, the association has argued that while the background note provided a list of FIRs which it claimed established that the association had committed acts which justified its declaration as unlawful, almost all the FIRs that the central government finally sought prove before the Tribunal did not find mention even the background note. That is, the association argued that the government had set out a justification for banning the association in the notification; when it was challenged that the justification did not contain the requisite facts which could be said to be "grounds" that give the Association notice of the case against it, the Central government claimed that those facts were in the background note; but finally, the case the central government sought to prove before the Tribunal was of entirely different facts that found no mention even in the background note. A key question before the Tribunal, therefore, is whether FIRs that have been mentioned neither in the Notification nor in the Background Note, but have been introduced subsequently can be taken into account in deciding whether or not "sufficient grounds" exist that warrant a ban (a holding against the State would knock out all but seven of the FIRs, thereby substantially weakening its case).
The state's justification for claiming reliance on material against the association that was not mentioned in the notification and not mentioned in the background note was that Section 4 (3) of the UAPA allowed the Tribunal to call for "further information" from either party. The issue, therefore, is whether "information" in section 4 (3) is the same as "grounds", or "particulars" or "facts" in section 3 (2) – or, to put it simply – whether the power of the Tribunal to call for further information can be used by the State to make out a case different from that set out in the notification or its background notem and to add – at a later date – grounds that were not in its contemplation at the time the Notification was issued. It is a well-established principle of administrative law that the validity of orders passed in exercise of statutory power must be judged by the reasons mentioned in those orders: "Orders are not like old wine becoming better as they grow older" and "orders bad in the beginning ….." may not "..get validated by additional grounds later brought". Even in preventive detention jurisprudence, Courts have drawn this distinction, forbidding the State from effectively improving its case under the guise of "new information."
While this may sound like a dry and technical issue, it is of crucial importance: as pointed out above, the entire structure of the UAPA – an act that must be read in the light of the Supreme Court's decision in V.G. Row – is to ensure that an independent judicial body reviews the initial decision of the government. If, therefore, cases or FIRs registered after the notification are to be treated as "grounds", or FIRs that were not in the central government's contemplation were to be treated as "grounds", this would mean that the Tribunal is substituting its own opinion of whether there was sufficient cause to ban the organization, as opposed to reviewing the opinion actually before it.
At the heart of the dispute on facts between the association and the Central government is the claim of the association that the FIRs and cases produced by the Central government before the Tribunal had no connection with it – none of the FIRs were against the association, and none of the persons named in those FIRs were its members. The association claimed that the central government was not producing membership registers which it had seized from the association's offices because those registers would establish that none of the persons named in the FIRs were its members. In reply, the Central government contended that the membership registers had in fact been produced before the Tribunal but it had been produced in one of many 'sealed covers' submitted to the Tribunal. These registers must clearly be a key piece of evidence required to draw a connection between the individuals named in various FIRs and the question of whether or not the "membership" of the association has been involved in criminal activity (which, it is to be recalled, is the principle "ground" for the ban).
Rule 3(2) of the UAPA Rules allows that where the government claims that certain books of accounts or other documents produced before the Tribunal are "confidential" in nature, the Tribunal shall not make them part of the proceedings, or allow inspection to any party "other than a party" to the proceedings before it. The rule, therefore, is clear that inspection can be denied to all except parties to proceedings.
The Central government has urged the Tribunal to consider material handed over in several sealed covers that the association was not allowed to inspect, on the strength of the Supreme Court's observations in its Jamaat-e-Islami Hind judgement of 1994. The association has argued, in turn, that that judgement mis-applies a stipulation in section 3, which is the notification stage of UAPA proceedings, to sections 4 and 9 which are the adjudication stages of the UAPA proceedings and misreads Rule 3 (2) to find that material can be considered behind the association's back.
But that apart, even the Jamaat-e-Islami Hind, 1994 decision requires that such claims of 'privilege' must meet a threshold "public interest" requirement. This then raises a few crucial questions. First – can evidence that is invoked as a justification to ban an association be withheld from the association itself? And second, given that the authority of Rule 3(2) flows from Section 4 (3) of the statute – what is the meaning of "public interest", and to what extent must the Tribunal scrutinise the government's invocation of "public interest"?
During final arguments, the Tribunal asked the State how it could rely upon material that had not been made a part of the record. The ASG argued for the State that the scheme of the UAPA required only a minimal requirement of natural justice, tailored to safeguard "public interest" – and that public interest overrides all other interests. In particular, ASG argued that unlawful activities may be clandestine, and that sources may have to be kept confidential. The association contended that if crucial material is produced behind its back the entire purpose of an independent judicial enquiry – where both sides can present their cases – is lost and argued that, at the least, every time a document is sought to be handed over in a sealed cover, the State must be called upon to explain exactly how withholding that particular document served public interest. This, it was submitted, would be in keeping with the principles of privilege explicated in the famous S.P. Gupta Case, which, while upholding principles of privilege had held that openness must be the rule and secrecy the exception.
The Evidence Act
Rule 3 (1) of the UAPA provides that the Evidence Act shall apply to the UAPA "as far as practicable." In the Jamaat, J &K proceeding, this issue has come to the fore in a particularly curious way: the State did not prove the FIRs in accordance with the Evidence Act (bear in mind that FIRs were the entirety of the non sealed-cover material produced before the Tribunal). Consequently, the first question that the Tribunal put to the State during oral arguments was "how have the FIRs – that form the core of the case against the associations – been proved?" The State conceded that this had not been done "strictly as per the Evidence Act", but claimed that "as far as practicable" in rule 3 (1) meant that it was not required to be done.
The association argued, on the other hand, that the term "as far as practicable" did not mean that the Evidence Act and its core principles went out the window. It contended that all documents, including the FIRs, had to be proved in accordance with the rules of the Indian evidence act except where the central government had succeeded in establishing that it was not practicable to do so. In the Jamaat J & K case, contended the association, the Central government had made no effort to either prove the documents in accordance with law or to establish that it was not practicable to do so.
In particular, the association argued that the requirement of the rules of the Indian evidence act that – (a) either originals of documents are produced or secondary evidence is led of the documents and (b) that documents are proved by persons who executed them, allowed for those documents to be tested by contesting parties in cross-examination. It is only such testing by cross-examination which would establish that such a document is in fact in existence; the document states what the party producing it claims it does; and the document is a correct statement of what it purports to record.
This was especially pertinent, as the entire case of the State was based on what was written in the FIRs. (It is important to recall that during the Constituent Assembly Debates, Ambedkar felt that it was inconceivable that any government could ever seek to take away the right of cross-examination in evidence.) The association also relied on the Supreme Court's decision in Bareilly Electricity Supply Co. v The Workmen and Ors. to argue that "no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used". Importantly, Bareilly Electricity Supply Co is a decision in the context of the Industrial Disputes Act and neither the Industrial Disputes Act nor the rules under that act required even adherence to the Indian evidence act "as far as practicable", requiring only that Industrial Tribunal's observe principles of natural justice.
The key issues in the Jamaat Trial can be understood by simply looking at the two questions the Hon'ble Tribunal asked the ASG, when he commenced his oral arguments. First, Hon'ble Mr. Justice Chandrashekhar asked, "how have the FIRs been proved?" And secondly, he asked: "how can the Tribunal take the materials in the sealed cover into cognizance?"
These two questions reveal the key faultlines in the UAPA, and highlight the critical role played by Tribunals. The UAPA arguably provides greater leeway to the State than in normal criminal procedure. This is accomplished in the design of the UAPA Act and Rules, for example, by allowing non-disclosure of documents in the "public interest", and allowing departures from the Evidence Act "as far as practicable." But neither of the terms, "public interest" nor "as far as practicable" are self-interpreting and it is for the Tribunal – manned by a High Constitutional Functionary – to determine what "public interest" and "as far as practicable" means in each case.
What principles ought to guide the Tribunal in this enquiry? This writer would respectfully submit that, apart from the State's interest in tackling crime, there are two crucial elements. The first – as noted in V.G. Row – is that key individual rights of freedom of speech and association are at stake. These rights must be given their due. And secondly, the rules of procedure and evidence are designed with the understanding that the State exercises a huge amount of power – and that, in a contest between the State and the individual (or a group), certain rules are needed to balance out this unequal power; this is the heart of the idea of a "fair trial."
In the Jamaat Trial, the Tribunal is squarely confronting these questions. The State's invocation of the exceptions under the UAPA has gone so far as to (a) submit what it claims is the association's own register of members – a crucial piece of evidence as per the State – in a sealed cover behind the association's back; (b) to refuse to prove FIRs – also crucial pieces of evidence – in accordance with acceptable rules of evidence and proof; and (c) to effectively add more grounds even after the Notification that is supposed to be the basis of the government's "opinion" has been passed. This writer has submitted above that each of these three issues significantly disables the assocition from effectively contesting the ban – and, by implication, threatens effective exercise of its rights to freedom of speech and association.
In the circumstances, must the Tribunal defer to the State or hold it to high standards of Constitutional accountability? As K.G. Kannabiran noted, ultimately, it is the rights under the Constitution that are fundamental, and not the restrictions. The State's arguments in the Jamaat Trial effectively seek to reverse that cardinal principle, and undermine rights by invoking a stated – but unproven – public interest. The Tribunal's opinion, therefore, will be very important: it will show which of these constitutional ideas prevails in 2019.