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Home / Columns / UAPA – Unlawful Arrest ...

COLUMNS

UAPA – Unlawful Arrest And Punishment Act

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176 Anand & Sudhanshu Neema
Bhuvana 27 Aug 2019 10:35 AM
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In 1962, the first meeting of the National Integration Council took place under the

chairmanship of the then Prime Minister, Jawaharlal Nehru. Soon after the first

meeting, the Council recommended that 'reasonable' restrictions be applied to the

exercise of fundamental rights of the citizens in the interest of the sovereignty and

integrity of the Indian State, and Parliament passed the 16th Amendment to the

Constitution of India. The Amendment gave power to the government to put

restrictions on freedom of speech and expression, freedom to peacefully assemble,

and freedom to form associations in the interest of sovereignty and unity of India. To

meet the objectives of the 16th Amendment, Parliament enacted the Unlawful

Activities (Prevention) Act, 1967.

Also Read - Ex-CJI Gogoi's Rajya Sabha Nomination Disturbs Public Faith In

Judiciary
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The main purpose of UAPA was to maintain the "integrity and Sovereignty" of India by

reining in the various secession movements brewing across the country at the time. It

was enacted at the time to be directed against the DMK leaders who were advocating

secession from Tamil Nadu. Long after the resolution of the Tamil issue, the law

remains in effect. Over the years the Act has been amended multiple times under

various governments with a view of increasing the powers of the state to the

detriment of individual liberties.

Also Read - Corporate India's COVID-19 Action plan: How To Balance Data

Protection With Emergency Response

Between 1967 and 2018, UAPA has been amended six times: each time expanding the

range of powers given to the state over citizens. For example, the first Amendment to

UAPA in 1969, extended the application of the Act to Jammu and Kashmir. In 2004, the

law was amended again to incorporate most of the provisions of the dreaded POTA,

since repealed. In 2008, the definition of what constitutes a 'terrorist act' was

broadened.

The Unlawful Activities (Prevention) Amendment Act, 2019 goes a step ahead. Under

the Act, the Union government of the day can designate any individual as a 'terrorist'

merely on suspicion. Further, it augments the powers of the National Investigation

Agency and allows it to carry out search and seizure activities throughout the territory

of India, without consulting or coordinating with the state government machinery.

Where one section of the law shifts the burden of proof on the suspect individual

instead of the prosecution, another allows the government to detain suspected

'terrorists' for up to two years without having to prove that an offence has been

committed.

Centuries of jurisprudence and evolution of the justice system advise that security
176 must use "probable cause" as certified by a judicial officer as the prior
agencies
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standard for arrest or labelling of any individual. The bar of mere suspicion is unjust,

unfair, and unreasonable. The Code of Criminal Procedure, 1973 dictates that an arrest

without a warrant can be made only when an individual is "concerned in any

cognizable offence, or against whom a reasonable complaint has been made, or

credible information has been received, or a reasonable suspicion exists, of his having

been so concerned." (Section 41).

The Amendment makes the government a judge in its own cause, violating the very

basic norm of impartiality in the dispensation of justice. While an accused can access

constitutional courts for violations of fundamental rights, years could pass before

justice is served. The lower bar of mere suspicion places unfettered power in the

hands of government officials to detain any person who opposes government policies.

The change in law also dilutes federalism and takes away the rights of states. It

allows the Union Government to intervene in any state without even informing the

local authorities. Besides, it is probably inefficient to gloss over coordinating with

state governments to see if any inquiries or investigation procedures are already

underway.

Lastly, despite the claim made by the government that the law is in compliance of

India's international obligations, it is in direct violation of multiple conventions

including the International Convention on Civil and Political Rights, 1967. The

Convention recognizes the presumption of innocence as a universal human right and

allows the use of pre-trial detention only as a matter of last resort. UAPA 2019 violates

both these provisions.

This latest version the Act is reminiscent of the dreaded Maintenance of Internal

Security Act (MISA), 1971, the emergency era law grossly misused by Ms Indira

Gandhi. MISA, which allowed for indefinite preventive detention, wiretapping, and

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search and seizure of property without a warrant, was used to suppress political

dissent during the emergency.

Most of the public opposition to the Amendment has been on grounds that this

Amendment takes it much too far. In our opinion, this is a myopic view of the issue.

The problem isn't the Amendment, so much as the Act itself. In truth, the UAPA has

been a long and oft-abused tool for suppressing dissent. The problem is not limited to

a particular government or political party. The UAPA was passed by Congress in 1967,

and various administrations since then have used the Act to silence their opponents, it

has become a tool of repression instead of a law that combats terrorism. In fact, two-

thirds of the accused in the UAPA so far have been acquitted or discharged by the

courts.

We have a well-established criminal justice system the current provisions of which

could effectively deal with any unlawful activity, including terrorism. In fact, all terror

acts mentioned under Section 15 are already illegal under various laws such as

Explosive Substances Act, 1908; Atomic Energy Act 1962; SAARC Convention on

(Suppression of Terrorism) Act, 1993; Weapons of Mass Destruction and Their

Delivery Systems (Prohibition of Unlawful Activities) Act, 2005; Suppression of

Unlawful Acts Against Safety of Maritime Navigation Act 2002; Suppression of

Unlawful Acts Against Safety of Civil Aviation Act, 1982; Anti-Hijacking Act, 1982;

Essential Services Maintenance Act, 1968; and the Indian Penal Code, 1860. UAPA

rests on faulty premises and only serves as yet another tool to roughshod over liberty

and justice for all Indians.

A republic is built on two plinths: lofty ideals and deep suspicion of those in power.

Instruments such as UAPA go against both. We need to raise our voices not just

against the Amendment, draconian as it is, but against the entire Act. UAPA is a

disgrace to our claims of being a Rule of Law republic.

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(Bhuvana Anand is Director, Research at the Centre for Civil Society, New Delhi.
Sudhanshu Neema is Manager, Advocacy at the Centre for Civil Society, New Delhi.
Views are personal)

TAGS #UAPA  #ILLEGAL ARREST AND DETENTION  #UNLAWFUL ACTIVITIES PREVENTION ACT 

#UNLAWFUL ACTIVITIES PREVENTION AMENDMENT BILL 2019 

#UNLAWFUL ACTIVITIES PREVENTION AMENDMENT ACT 2019 

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COLUMNS

Ex-CJI Gogoi's Rajya Sabha Nomination

Disturbs Public Faith In Judiciary
Manu Sebastian 17 March 2020 9:20 AM

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"One cannot expect justice from those who, on the verge of retirement,
throng the corridors of power looking for post retiral sinecures", Justice
Deepak Gupta in Rojer Mathew Case (CB)
In a move that raises fresh questions about the debilitating nature of judicial

independence, the Central Government on Monday nominated former Chief Justice of

India Ranjan Gogoi - arguably the most controversial CJI of recent times - as a

member of the Rajya Sabha within four months of his retirement on November 17 last

year.

This is not the first time that a former CJI is becoming a member of Rajya Sabha, as

ex-CJI Justice Ranganath Mishra was elected to the Upper House on Congress ticket

in 1998 seven years after his retirement. Justice Baharul Islam had resigned as a

Supreme Court judge in 1983 to contest elections to Rajya Sabha on Congress ticket,

and became an RS member that year itself.

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But the Centre nominating a former CJI as an RS member under Article 80(3) of the

Constitution, soon after his retirement, is unprecedented.

The pitfalls of immediate post-retirement appointments given to judges are easily

conceivable and widely discussed. Former Union Minister and Senior Advocate Arun

Jaitley once bluntly stated that "pre-retirement judgments are influenced by a desire

for a post-retirement job".

"My suggestion is that for two years after retirement, there should be a gap (before the
appointment), because otherwise, the government can directly or indirectly influence
the courts and the dream to have an independent, impartial and fair judiciary in the
country would never actualise," Jaitley had said in the capacity of Leader of Opposition
of Rajya Sabha in 2012.

Immediate Post-Retirement Appointment of Judges : Mutual Bonhomie

between Executive And Judiciary?

But this word of caution, also echoed by several former CJIs like Justices R M Lodha,

T S Thakur, Kapadia etc., has never been heeded to in actual practice, as can be seen

from several appointments such as that of Justice R K Agrawal as NCDRC President

and Justice A K Goel as NGT Chairperson within weeks of their respective retirements.

However in these cases, there was at least a defense of statutory mandate as the

relevant laws required these posts to be occupied by retired judges (though this

defense is no satisfactory explanation for granting immediate post-retirement benefit).

What makes the appointment of Justice Gogoi so brazen is that there is no such

statutory compulsion or expediency which necessitates his nomination to the Rajya

Sabha within a short-span of his retirement.

CJI Gogoi : A Term Of Misses And Omissions

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It is here the controversial tenure of CJI Gogoi comes to focus, during which the Apex

Court, through its actions and inactions, protected and furthered the interests of the

Executive on several instances. The nearly infructuous verdict in the CBI-Alok Verma

case; the shaky clean chit given to Centre in the Rafale scam; the indefinite delaying of

the hearing in the case challenging electoral bonds scheme; the steely reluctance

shown in interrogating the government in the Kashmir habeas matters; the Ayodhya

verdict with its highly questionable legal soundness - in these cases, the Supreme

Court seemed to be in sync with the agenda of the State. Justice Gogoi played a major

role in engineering the Assam-NRC fiasco, and he felt no conflict of interest in

judicially overseeing the process, despite being personally invested in the matter. Even

as the head of the SC Collegium, Justice Gogoi gave out the impression of playing to

the tunes of the Centre, as indicated by the manner in which Justice Kureshi's transfer

and elevation was handled.

During the term of CJI Gogoi, we saw the Supreme Court looking the other way when

citizens complained of violation of basic rights. We saw the executive getting away

with its actions unquestioned on several instances (more detailed in this article "CJI

Gogoi - A Term of Misses and Omissions"). Justice Gogoi demitted office as the pale

shadow of the man who participated in the unprecedented judges' press conference

of January 2018, and who enthralled everyone in his famous Goenka memorial lecture

with his exhortations to protect constitutional rights.

Press Conference, Goenka Lecture, Sealed Covers, Collegium Decisions And

More.

An inescapable irony in this development is that Justice Gogoi had headed the

Constitution Bench which delivered the judgment in the Rojer Mathew case, where the

Court expressed concerns about the impact of post-retirement appointments on

176 independence. The Court in this case struck down the provision in Tribunal
judicial
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Rules which enabled re-appointment of Tribunal Members after retirement by

observing that "the provision for reappointment would undermine the independence of

the member who would presumably be constrained to decide matters in a manner that

would ensure their reappointment".

Justice Gogoi observed in the judgment that "the discretion accorded to the Central or

State Government to reappoint members after retirement from one Tribunal to another

discourages public faith in justice dispensation system which is akin to loss of one of
the key limbs of the sovereign" and added that it "increases interference by the

Executive jeopardising the independence of judiciary".

Though these observations were made in the context of appointment of members of

Tribunals, as a principle concerning judicial independence, they are relevant with

respect to Constitutional Courts as well.

Also relevant are some observations made by Justice Deepak Gupta in the said

judgment :

"There may be some posts which require retired judges to be appointed such as
Lokpal, Lokayukta, Chairpersons of the Human Rights Commission, Chairman of the
Law Commission of India, etc. But this should not become a matter of routine
especially when the appointments are being made by the executive. If the
administration makes appointments and judges, serving or newly retired judges, are
under consideration for such posts then the independence of the judiciary is likely to
be compromised. The public of this country still reposes great faith in the judiciary.
That faith will be eroded in case it is felt that the appointments are made for
extraneous reasons. Most judges live up to the expectations of the high standards of
integrity and propriety expected from them but we cannot shut our eyes to the harsh
reality that there are a few black sheep. One cannot expect justice from those who, on

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the verge of retirement, throng the corridors of power looking for post retiral
sinecures"

In these circumstances, one cannot be faulted for wondering if the Rajya Sabha

nomination is a 'quid pro quo' of sorts.

Questions about suitability

Apart from institutional concerns about judicial independence, the present

appointment also raises questions regarding the suitability of the individual to the

post.

It is well-etched in public memory that Justice Gogoi was alleged of sexually

harassing a staff of SC, and that he had used the powers of his office to stall and

bulldoze a proper probe into the matter.

Before the woman came out in public with sexual harassment allegations, she was

terminated from service on flimsy grounds, in a manner so disproportionate and

unjust.

Why Dismissal Of SC Staff Who Alleged Sexual Harassment By CJI Is

Disproportionate?

Her husband and family members had also to face vindictive actions in the form of

suspension from service and criminal cases.

When the woman's allegations were reported by media in April, the first response of

Justice Gogoi was to convene an urgent sitting on a Saturday and launch ad hominem

attacks on the accuser, in her absence. CJI Gogoi characterized the allegation as an

attempt to "deactivate judiciary", and complained about being served a raw deal after

several years of selfless service to judiciary.

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"More after 20 years of selfless service. It is unbelievable ...With a bank balance of
6,80,000 that is in my bank account. This is my total asset. When I started as a judge, I
had much hope. On the verge of retirement I have 6 lakhs. This is the reward CJI gets
after 20 years , a bank balance of 680,000", he exclaimed during that extraordinary
proceeding, which was curiously titled "In Re : Matter of Great Public Importance

Touching Upon The Independence Of Judiciary Mentioned By Shri Tushar Mehta,

Solicitor General of India" .

The zealous defence advanced for Justice Gogoi by the top law officers of the Centre -

the Attorney General and the Solicitor General- should have been sufficient indication

for onlookers regarding the mutual bonhomie between the judiciary and the executive.

Then emerged a host of counter-allegations against the woman that her complaint

was a part of "larger conspiracy" against the CJI hatched by a gang of "fixers and

disgruntled SC employees". A special bench of the SC constituted a one-member

commission of former SC judge Justice A K Patnaik to probe the allegations of larger

conspiracy, after holding day to day hearing on urgent basis.

Meanwhile, the in-house panel of the SC, which conducted probe without any

adherence to norms of transparency, absolved Justice Gogoi of the charges, for

reasons we would never know. The woman had decided not to participate in the

proceedings, questioning the procedure adopted by it.

What is surprising is a subsequent development, which happened after the retirement

of Justice Gogoi. In a move that gives post-facto credibility to her complaint, and

demolishes the base of "larger conspiracy" allegations made against her, the woman

who raised the sexual harassment allegations was reinstated into SC service. Though

Justice Patnaik commission submitted its report before SC in September last year, its

contents are not made public, and no action has ensued on the same. The present

passivity shown by the Court in this "Matter of Great Public Importance Touching
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Upon The Independence Of Judiciary" is highly surprising. These circumstances

certainly shake the clean chit given to Justice Gogoi in the case.

The larger question of morality here is should a person with such a cloud over

character be appointed to an eminent post in the House of Elders? Even though Article

80(3) does not make an express mention of 'good character' as a condition for

nomination, it will be against the principles of constitutional morality to argue that

such a requirement is not needed.

When former CJI P Sathasivam was appointed as Governor of Kerala in 2014 soon

after his retirement, it had raised several eyebrows. But the degree of brazenness in

Justice Gogoi's appointment surpasses all previous cases. To say the least, the swift

jump from one branch to another does not look graceful.

Before parting, it is pertinent to refer to an observation made by SC in the 'master of

roster case' :

"The faith of the people is the bed-rock on which the edifice of judicial review and
efficacy of the adjudication are founded. Erosion of credibility of the judiciary, in the
public mind, for whatever reasons, is greatest threat to the independence of the
judiciary".

TAGS #CJI RANJAN GOGOI  #JUSTICE RANJAN GOGOI  #RAJYA SABHA 

#JUDICIAL INDEPENDENCE  #POST RETIREMENT JOBS 

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