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08 Jul 2015

PEOPLES UNION FOR DEMOCRATIC RIGHTS has long held that freedoms conferred by the Constitution as well as those which flow from International Covenant on Civil and Political Rights (ICCPR), are intrinsic to our pursuit of democratic rights. These ‘freedoms’ are not only meant for individuals but also, and most significantly, for our right to form associations in order to promote and propagate collectively held perspectives/views in the public domain. Of all the freedoms we enjoy, free speech matters most, both to individuals as well as to associations. It is also a settled matter of law that any law or rule that curbs the freedoms conferred by Part III of our Constitution must be examined for its substantive as well procedural aspects to establish its “reasonableness”.

In 2012, the Coordination of Democratic Rights Organisations published a report on the Unlawful Activities (Prevention) Act [The Terror of Law: UAPA and the Myth of National Security] which traced the history of the Act and presented a substantive critique of its sections, particularly its ‘extraordinary’ nature which confers sweeping powers to the police to arrest and detain political dissenters. This present report looks at the provision of imposing a ban under the UAPA and the power and scope of the tribunal set up under the Act to determine the efficacy of the government’s ban order on unlawful organizations. This tribunal is headed by a sitting judge of the High Court making the review a judicial one for a ban order on “unlawful organisations”. However, after the 2004 amendment, the Act permits a ban on an organisation for being a “terrorist organisation” and provides merely a non-judicial review committee which aggrieved persons can turn to. The focus of the present report is on the working of the judicial tribunal because the review committees’ proceedings, if any, are not available in public domain and there is no way of knowing whether any of the 33 organisations listed in the Schedule to the Act have ever contested the ban. In contrast, the Tribunal’s orders produced each time a ban was challenged by the banned organization, are available in the public domain. The report examines the workings of three Tribunals, 2010, 2012, 2014, related to the Students Islamic Movement of India (SIMI) in order to determine whether the Tribunal actually acts as a check on arbitrary actions of the Executive and as a safeguard for the aggrieved.

SIMI is the only organization that has challenged every order imposing a ban before the Tribunal starting from 2001. It has consistently deposed before the tribunal set up for this purpose under section 4 of UAPA. This report documents the charges that have been levelled against SIMI, analyses the functioning of tribunals, highlights the fatal flaw of the Act and argues for the repeal of the UAPA.

Also read Justice Kaith Tribunal on SIMI: A critical update

Keywords:  Acquittal, adjudication, amendment, anti-people, apex court, association, Ban, banned literature, civil court, Conviction, culture of proscription, evidence, flouting of norms, front organization judge judgment law Muslim National Investigation Agency NIA notification offence police Police Confession political freedoms prosecution public interest Reasonable Restrictions safeguards SIMI terror crimes Trial Tribunal UAPA, verdict 

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