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EDITORIAL ANALYSIS : SC order on UAPA lowers the bar for state when restricting freedoms

 

Source: Indian Express

  • Prelims: UAPA, POTA, TADA,, fundamental rights etc
  • Mains GS Paper II and III: Parliament-Structure, functioning and conduct of business, fundamental rights-violation and restriction, AFSPA etc

ARTICLE HIGHLIGHTS

  • The three-judge bench of the Supreme Court has ruled that even a mere membership of a banned association is sufficient to constitute an offense under the Unlawful Activities (Prevention) Act 1967.

 

INSIGHTS ON THE ISSUE

Context

 

Unlawful Activities (Prevention) Act(1967):

  • The law aims at effective prevention of unlawful activities associations in India.
  • The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
  • It has the death penalty and life imprisonment as the highest punishments.

 

Key points:

  • Under UAPA, both Indian and foreign nationals can be charged.
  • It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.
  • Under the UAPA, the investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.

 

UAPA cases:

  • According to a PUCL report in 2022:less than 3 percent of arrests made under the UAPA resulted in convictions between 2015 and 2020.
  • Only 1,080 of the 4,690 people detained under the UAPA between 2018 and 2020 received bail, according to the report.

 

What did the court say?

  • The Court held that a person can be “guilty of membership” even without any further overt act or mens rea (criminal intent) on one’s part.
  • The Court has overruled three older cases which read the section with a view to distinguish between active and passive members.
  • Section 10(a)(i) of the UAPA states that where an association is declared unlawful by a notification, “a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine”.
  • In 2011, a two-judge bench led by Justice Markandey Katju: It discussed the line between advocacy and incitement to violence, when a passive membership or intellectual sympathy to a cause can spill over to real call to violence.
    • The same bench applied the principle in two other cases while granting bail.

 

The Supreme Court’s reason for overruling the 2011 rulings:

  • It accepted the state’s argument sufficient safeguards in the UAPA framework and “every effort is made to ensure that every member of the association is made aware of the fact that such association is declared as unlawful”.
  • The government’s argument: The declaration of an organization as unlawful is a “product of a robust adversarial process.
    • Ample opportunity is given to the organization to appeal to justify its aims, objectives and activities being legal and not ‘unlawful’ within the constitutional setup.”
  • The Court ought not to have relied upon the US Supreme Court judgments” since the US law is “in contradistinction to the scenario in question in India”.
    • The Court cites a string of paragraphs from rulings that expanded on personal liberty, including the landmark Maneka Gandhi v Union of India, to hold that free speech in the US is unrestricted, unlike in India.

 

 

Way Forward

  • Justice Rohinton Nariman urged the SC to strike down “the offensive portions of the UAPA”.
  • The debate on UAPA needs to be taken beyond the validity of a few select provisions:The law’s very purpose and scope need careful examination.
  • The Court must determine whether the breadth and consequences of UAPA are substantially out of proportion to its declared goals.
  • The ability to identify, neutralize, and bring terrorists to justice should be a priority. However, the authorities must be subject to stringent, clear controls and impartial oversight.
  • The Court must seize the opportunities presented by challenges to spell out precisely the objectives of the law.

 

QUESTION FOR PRACTICE

Naxalism is a social, economic and developmental issue manifesting as a violent internal security threat. In this context, discuss the emerging issues gest a multilayered strategy to tackle the menace of Naxalism.(UPSC 2022) (200 WORDS, 10 MARKS)