Opposition Movement and Insertion of Undemocratic Provisions (2)
undemocratic and outdated laws
Transcript of undemocratic and outdated laws
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A Study on Undemocratic and Outdated Laws
Meaning of democratic governance - based on the PREAMBLE to the Constitution,
specifically from the RIGHTS perspective
Before heading with the research topic the first thing we have to understand is the meaning of democratic
governance, it simply means not characterized by or relating to the principles of democracy. The preamble
to the Indian Constitution reflects the basic spirit and structure of the Constitution. It is regarded that the
PREAMBLE serves as a channelizing tool for the interpretation of the Constitution as a whole. The
Preamble to the Indian Constitution puts forth the objects the Constitution aims at achieving. India follows
a democratic form of government. The people of India elect their representatives at all level.
The rights of Indian citizen under the democracy of India are well reflected in the preamble itself. The
constitution guarantees each and every citizen of India right to LIBERTY, EQUALITY, JUSTICE and
FREEDOM. These rights are described below.
Article 5: Right to Liberty and Security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law -
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful
detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons
of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the
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reason for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall
be brought promptly before a judge or other officer authorised by law to exercise judicial power and
shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditionedby guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the
detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this
Article shall have an enforceable right to compensation.
Article 9: Freedom of Thought, Conscience and Religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief, and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for theprotection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10: Right to freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions
and to receive and impart information and ideas without interference by a public authority and
regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting,
television or cinema.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the
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reputation or rights of others, for preventing the disclosure of information received in confidence, or for
the maintaining of the authority and impartiality of the judiciary.
Article 11: Freedom of Assembly and Association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law
and are necessary in a democratic society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or morals or for the protection of the rights
and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces, of the police or of the administration of the
state.
Article 14: Prohibition on Discrimination (right to equality)
The enjoyment of the rights and freedoms set forth in this convention shall be secured
without discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other status.
Thus, in India all the Indian citizens are provided with their basic rights by the exercise of which
democratic governance is practiced in India. But the laws on the statute book alone do not prove any
government to be democratic. Its the way in which the laws are implemented and practiced that defines the
nature of any government. In India there are many laws which are misused by the power holders who make
these laws UNLAWFUL. Unlawful laws are the laws enacted by the legislatures against the basis structure
of the Constituion and are misused by the executive to intimidate and incarcirate those who oppose their
anti-people policies. Such laws are, unfortunately, not diclared unconstitutional even by the Judiciary which
has been entrusted with the duty to defend not only the basis structure of the Constitution but also the
human rights of the people by the very Constitution from which they draw their authority.
Some of these unlawful laws are discussed below.
ARTICLE 124 A: SEDITION
INTRODUCTIONThe recent spate in instances of invoking sedition laws against human rights
activists, journalists and public intellectuals in the country have raised important
questions on the undemocratic nature of these laws, which were introduced by the
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British colonial government. The Bilaspur High Courts decision to reject the bail
application filed by Dr. Binayak Sen in the face of widespread public criticism of the
trial court decision to indict him on charges that included those of sedition has raised
serious questions about the validity of these laws in a modern constitutional
democracy.While sedition laws are part of a larger framework of colonial laws that are now used
liberally by both the central and state governments to curb free speech, the
specificity of these laws lie in the language of disaffection and severity of the
punishment associated with them. Sedition laws were used to curb dissent in
England, but it was in the colonies that they assumed their most draconian form,
helping to sustain imperial power in the face of rising nationalism in the colonies
including India. Targets of this law included renowned nationalists like Mahatma
Gandhi, Bal Gangadhar Tilak and Annie Besant. It is ironic that these laws have
survived the demise of colonial rule and continue to haunt media personnel, human
rights activists, political dissenters and public intellectuals across the country.
HISTORY OF SEDITION LAWSThe section corresponding to section 124A, the law that defines sedition in the IPC,
was originally section 113 of Macaulays Draft Penal Code of 1837-39, but the section
was omitted from the IPC as it was enacted in 1860. James Fitzjames Stephens, the
architect of the Indian Evidence Act, 1872, has been quoted as saying that this
omission was the result of a mistake1. Another explanation for this omission is that
the British government wished to adopt more wide-ranging strategies against the
press including a deposit-forfeiture system and general powers of preventive action2.
Section 124A was introduced by the British colonial government in 1870 when it felt
the need for a specific section to deal with the offence. It was one of the many
draconian laws enacted to stifle any voices of dissent at that time. Mahatma Gandhi
was prescient in recognising the fundamental threat it provided to democracy when
he called it the prince among the political sections of the Indian Penal Code designed
to suppress the liberty of the citizen.3 Prominent persons charged with sedition
under this law include Bal Gangadhar Tilak and Mohandas Gandhi.
The framework of this section was imported from various sources-the Treason Felony
Act (operating in Britain), the common law of seditious libel and the English law
relating to seditious words. The common law of seditious libel governed both actions
and words that pertained to citizens and the government, as well as between
communities of persons.
VICTIMS OF SEDITION
Bal Gangadhar Tilak
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Ironically some of the most famous sedition trials of the late 19th and early 20th century involved Indian
nationalist leaders. Of these, the most well known are the three sedition trials of Bal Gangadhar Tilak,
which were closely followed by his admirers nationally and internationally. The fundamental moral
question that Tilak raised was whether his trials constituted sedition of the people against the British Indian
government (Rajdroha) or of the Government against the Indian people (Deshdroha)6. There are striking
similarities between his question and those raised by contemporary targets of sedition law like Arundhati
Roy. When faced with the allegation of sedition (along with S.A.R. Geelani, Varavara Rao and others) for
speaking at a seminar on Kashmir titled Azaadi: The Only Way held in Delhi in 2010, Roy issued a
public statement:
. . . In the papers some have accused me of giving hate-speeches, of wanting India to break up. What I
say comes from love and pride. It comes from not wanting people to be killed, raped, imprisoned or have
their finger-nails pulled out in order to force them to say they are Indians. It comes from wanting to live in
a society that is striving to be a just one. Pity the nation that has to silence its writers for speaking their
minds. Pity the nation that needs to jail those who ask for justice, while communal killers, mass murderers,corporate scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free.
Annie Besant
Another famous decision wasAnnie Besant v. Advocate General of Madras.15 The case dealt with Section
4(1) of the Indian Press Act, 1910, that was framed similar to Section 124A. The relevant provision said
that any press used for printing/publishing newspapers, books or other documents containing words, signs
or other visible representations that had a tendency to provoke hatred or contempt to His Majestys
government...or any class of subjects (either directly or indirectly, by way of inference, suggestion,
metaphor, etc.) would be liable to have its deposit forfeited. In this case an attack was levelled against the
English bureaucracy. The Privy Council followed the earlier interpretation of Justice Strachey and
confiscated the deposit of Annie Besants printing press.
Mahatma Gandhi
The most famous sedition trial after Tilaks was the trial of Mahatma Gandhi in 1922. Gandhi was charged,
along with Shankerlal Banker, the proprietor ofYoung India, for three articles published in the weekly. The
trial, which was attended by the most prominent political figures of that time, was followed closely by the
entire nation. The trial was presided over by Judge Strangman. Gandhi explained to the judge why from
being a staunch royalist, he had become an uncompromising disaffectionist and non-cooperator, and why it
was his moral duty to disobey the law. In a stunning statement which also highlights the fact that the
sedition offence is that it is best suited to a colonial regime based upon strict control over any possible
criticism of the regime,
OVERVIEW OF SEDITION LAWS IN INDIA
While this note has dealt with section 124A of the Indian Penal Code in detail, there are other laws that are
related to this section or also criminalise disaffection to the state. This section outlines the gamut of laws
that deal with sedition that exist on the statute books.
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INDIAN PENAL CODE (IPC), 1960
Section 124A forms the main section that deals with sedition in the Indian Penal Code. 124A64 carries with
it a maximum sentence of imprisonment for life.
CRIMINAL PROCEDURE CODE (CrPC), 1973
The CrPC contains section 9565 which gives the government the right to forfeit material punishable under
section 124A on stating grounds. The section requires two conditions to be fulfilled, (i) that the material is
punishable under the mentioned sections (ii) the government gives grounds for its opinion to forfeit the
material.
UNLAWFUL ACTIVITIES (PREVENTION) ACT (UAPA), 1967
Supporting claims of secession, questioning territorial integrity and causing or intending to cause
disaffection against India fall within the ambit of unlawful activity (Section 2(o) UAPA).66 Section 1367
punishes unlawful activity with imprisonment extending to seven years and a fine.
PREVENTION OF SEDITIOUS MEETINGS ACT, 1911
The Seditious Meetings Act, which was enacted by the British a century ago to control dissent by
criminalizing seditious meetings, continues to be on our statute books.
Section 568 of the Act empowers a District Magistrate or Commissioner of Police to prohibit a public
meeting in a proclaimed area if, in his/her opinion, such meeting is likely to promote sedition or
disaffection or to cause a disturbance of the public tranquility. Considering this legislation was specifically
enacted to curb meetings being held by nationalists and those opposed to the British, the continuation of
this archaic legislation is completely unnecessary and undemocratic.
THE UNLAWFUL ACTIVITES (PREVENTION) ACT, 1967
Pursuant to the acceptance by the Government of a unanimous recommendation of the Committee on
National Integration and Regionalism appointed by the National Integration Council, the Constitution
(Sixteenth Amendment) Act, 1963, was enacted empowering Parliament to impose, by law, reasonable
restrictions in the interests of sovereignty and integrity of India, on the freedom of speech and expression;
right to assemble peaceably and without arms; and right to form associations or unions. In order to
implement the provisions of the 1963 Act, the Unlawful Activities (Prevention) Bill was introduced in the
Parliament. The object of this Bill was to make powers available for dealing with activities directed against
the integrity and sovereignty of India. The original Act comprised of 4 Chapters and 21 Sections. The term
unlawful activity was defined under Section 2(1) (f) of the Act and Section 2(1)(g) defined unlawful
association as any association which has for its object any unlawful activity, or which encourages or aids
persons to undertake any unlawful activity, or of which the members undertake such activity; or which has
for its object any activity which is punishable under Section 153A or 153B of the IPC, or which encourages
or aids persons to undertake any such activity, or of which the members undertake any such activity.
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Chapter II dealt with unlawful associations and the Central Government had the power to declare any
association as an unlawful association by a notification in the Official Gazette. The notification had to
specify the grounds on which it was issued and other particulars. However, such a notification will take
effect only after the Tribunal has confirmed the declaration made by an order under Section 4. The Central
Government has to, within 30 days from the date of the publication of such a notification, refer the
notification to the Tribunal under Section 4 for the purpose of adjudicating whether or not there is sufficient
cause for declaring the association unlawful. The Tribunal holds an inquiry and has to decide whether or
not there is sufficient cause for declaring the association to be unlawful as expeditiously as possible and in
any case within a period of six months from the date of issue of the notification and make such order as it
may deem fit either confirming the declaration made in notification or cancelling the same. Such a Tribunal
has to be constituted by the Central Government under Section 5. Section 7 empowers the Central
Government to prohibit a person from using the funds in any manner if it is satisfied after an inquiry that
that person has custody of any moneys, securities or credits which are being used or are intended to be used
for the purpose of an unlawful association.
The procedure laid down in the Code of Civil Procedure, 1908 has to be followed with respect to the
inquiry by the Tribunal under Section 4. Chapter III provides for penalties prescribed for being members of
an unlawful association, for dealing with funds of an unlawful association, and for unlawful activities. The
punishment prescribed for taking part in an unlawful activity is imprisonment for a term which may extend
to seven years along with a fine under Section 13. It is observed that the original Act was intended to curb
only unlawful activities and was not directed towards terrorist acts in any manner. However, the subsequent
amendments made in 2004 and 2008 have made it an anti-terror legislation.
2004 AND 2008 AMENDMENTS CURBING TERRORISM?
The amendments to the 1967 Act were made subsequent to the repeal of The Prevention of Terrorism Act
which had resulted in a great deal of controversy with respect to its misuse by political leaders and the
police. Though the POTA was repealed the Government of India considered it necessary to have a
legislation dealing with terrorism on the same lines of POTA. In 2004, the amendments were made to this
Act and the provisions were not directed against terrorist activities and organizations. A new Chapter IV
was introduced which dealt with punishment for terrorist activities. Section 15 defines terrorist act as
whomever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in
the people or any section of the people in India or in any foreign country, does any act by using bombs,
dynamite or other explosive substances or inflammable substances etc. in such a manner as to cause, or
likely to cause, death of, or injuries to any person or persons or loss of or, damage to, or destruction of,
property or disruption of any supplies or services essential to the life of the community in India, commits a
terrorist act.
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Section 16 prescribes the punishment for terrorist act as death or imprisonment for life along with a fine if
such act has resulted in the death of any person or in any other case, with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment for life along with fine. Separate
provisions have been included prescribing punishment for raising fund for a terrorist act, for conspiracy,
harbouring, for being member of terrorist gang or organization, for holding proceeds of terrorism and for
threatening witness. Section 24 of the Act dealt with forfeiture of proceeds of terrorism by the Central
Government. The powers of investigating officer and Designated Authority and appeal against order of
Designated Authority have been provided for in Section 25. Chapter VI deals with Terrorist Organizations.
Section 35 empowers the Central Government to add an organization to the Schedule; add also an
organization to the Schedule, which is identified as a terrorist organization in a resolution adopted by the
Security Council under Chapter VII of the Charter of the United Nations, to combat international terrorism;
to remove an organization from the Schedule and to amend the Schedule in some other way. The power to
denotify an organization is provided under Section 36.
Review Committees are required to be constituted by the Central Government under Section 37 to allow an
application for review against rejection to remove an organization from the Schedule, if it considers that the
decision to reject was flawed when considered in the light of the principles applicable on an application for
judicial review. The Act further contains a separate provision for protection of witnesses (Section 44) by
empowering the Court to take any measures which may include the holding of the proceedings at a place to
be decided by the Court; the avoiding of the mention of the name and address of the witness in its orders or
judgements or in any records of the case accessible to public; the issuing of any directions for securing that
the identity and address of the witness are not disclosed; and a decision that it is in the public interest to
order that all or any of the proceedings pending before such a Court shall not be published in any manner.
Section 46 further provides for admissibility of evidence collected through the interception of
communications under the provisions of the Indian Telegraph Act, 1885 or the Information Technology
Act, 2000 notwithstanding anything contained in the Indian Evidence Act.
In the wake of the 26/11 terrorist attack in Mumbai, the Government of India further passed an amendment
to this Act making the provisions more stringent than earlier due to the discontent among the public[4]. The
important amendments made to the Act in 2008 were insertion of new sections 43A to 43F. Section 43A
provides the power to arrest, search etc. This provision empowers any officer of the Designated Authority
empowered in this behalf to authorize any officer subordinate to him to arrest a person or arrest himself,
knowing of a design to commit any offence under this Act or has to reason to believe from personal
knowledge or information given by any person or from any document, article or any other thing which may
furnish evidence of the commission of such offence. Section 43B outlines the procedure to be followed in
case of such arrest and seizure. The provisions of the Code of Criminal Procedure, 1973 are made
applicable by Section 43C, to all arrests, searches and seizures made under this Act, in so far as they are not
inconsistent with the provisions of this Act. Section 43D is the stringent provision in this Act whereby
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certain provisions of the Code have been modified in their application to an offence punishable under this
Act.
Section 43D includes a new proviso to Section 167 of the CrPC which provides that if it is not possible to
complete the investigation within the said period of ninety days, the Court may if it is satisfied with the
report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the
detention of the accused beyond the said period of ninety days, extend the same period up to one hundred
and eighty days. Further Section 268 of the Code has been modified to give more powers to the Central
Government. Section 43D (5) states that nothing in Section 438 of the Code which provides for anticipatory
bail, shall apply in relation to any case involving the arrest of any person accused of having committed an
offence punishable under this Act. Furthermore notwithstanding anything contained in this Code, no person
accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond
unless the Public Prosecutor has been given an opportunity of being heard on the application of such
release. The proviso to this provision states that such accused person shall not be released on bail or on his
own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of
the opinion that there are reasonable grounds for believing that the accusation against the person is prima
facie true.
The restrictions on granting of bail specified above are in addition to the restrictions under the Code or any
other law for the time being force on granting of bail. A further restriction is provided for in sub-section 8
which states that notwithstanding anything contained in (6) and (7), no bail shall be granted to a person
accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country
unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in
writing. Further Section 43 E provides that in a prosecution for an offence under Section 15, if it is proved
that the arms or explosives or any other substances specified were recovered from the possession of the
accused and there is reason to believe that such arms or explosives were used in the commission of such
offence; or that by the evidence of the expert the fingerprints of the accused or any other definitive
evidence suggesting the involvement of the accused in the offence were found at the site of the offence or
on anything including arms and vehicles used in connection with the commission of such offence, the Court
shall presume that the accused has committed such offence unless the contrary is shown.
The obligation to furnish information in his or their possession in relation to an offence under this Act on
points or matters where the investigating officer has reason to believe that such information will be useful
for or relevant to the purposes of this Act. This is provided for in Section 43 F. If a person fails to furnish
such information or deliberately furnishes false information he will punishable with imprisonment for a
term which may extend to three years or with fine or with both. Section 51 A has been inserted in this Act
which gives certain powers to the central government. Under this Section, in order to prevent and cope with
terrorist activities, the Central Government has the power to freeze, cease or attach funds and other
financial assets or economic resources held by an entity listed in the Schedule. It also has the power to
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prohibit any individual or entity from making any funds, financial assets or economic resources available
for the benefit of such entity. The Central Government can also prevent the entry into or the transit through
India of individuals listed in the Schedule or any other person engaged in or suspected to be engaged in
terrorism.
In view of the concerns and complaints expressed about the manner in which provisions of the Prevention
of Terrorism Act, 2002 had been applied including instances of misuse, the Act was repealed in 2004. At
the same time, keeping in view that India has been a front runner in the global fight against terrorism, its
commitments in terms of the United Nations Security Council Resolution 1373 dated 28 thSeptember, 2001
and the resolve not to allow any compromise in the fight against terrorism, the Unlawful Activities
(Prevention) Act 1967 was amended to make provisions to deal with terrorism and terrorist activities[5].
There have been significant developments since then at the national and the international level. Terrorist
incidents and activities sponsored from across the borders, in various parts of India and elsewhere, continue
to cause concern. Hence, the legal framework for dealing with such activities, including measures related to
financing of terrorism, has been further reviewed. The Administrative Reforms Commission in its Report
Combating Terrorism Protecting by Righteousness, has also made various recommendations in this
regard.
After due consideration and examination of these recommendations and suggestions the Government was
of the view that further provisions were required to be made in the law to cover various facets of terrorism
and terrorist activities, including financing of terrorism, which were not fully covered in the 2004 Act. The
aim was also to make further provisions with the aim of strengthening the arrangements for speedy
investigation, prosecution and trial of cases related to terrorism related offences, while at the same time
ensuring against any possible misuse of such provisions. However, the 2008 amendment has had many
criticisms leveled against it which will be discussed in detail in the next section.
IMPLEMENTATION OF THE ACT AND CRITICISMSThe Central Government had taken several steps towards combating financing of terrorism and thereby
implementing the provisions of the Act with the help of the Reserve Bank of India (RBI) and Securities
Exchange Board of India (SEBI). On September 17, 2009, the RBI had issued a circular whereby it has
been advised to banks that as and when list of individuals and entities, approved by Security Council
Committee established pursuant to various United Nations Security Council Resolutions (UNSCRs), are
received from Government of India, Reserve Bank circulates these to all banks and financial institutions[9].
Banks or financial institutions are required to update the consolidated list of individuals or entities as
circulated by Reserve Bank and before opening any new account, it should be ensured that the name of the
proposed customer does not appear in the list. Further, banks should scan all existing accounts to ensure
that no account is held by or linked to any of the entities or individuals included in the list. Banks have
been advised that full details of accounts bearing resemblance with any of the individuals or entities in the
list should immediately be intimated to RBI.
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Government has since 2008 amendment to the UAPA issued an Order dated August 27, 2009, detailing the
procedure for implementation of Section 51A of the UAPA, 1967 relating to the purposes of prevention of,
and for coping with terrorist activities. In terms of Section 51A, the Central Government is empowered to
freeze, seize or attach funds and other financial assets or economic resources held by, on behalf of or at the
direction of the individuals or entities listed in the Schedule to the Order, or any other person engaged in or
suspected to be engaged in terrorism and prohibit any individual or entity from making any funds, financial
assets or economic resources or related services available for the benefit of the individuals or entities listed
in the Schedule to the Order or any other person engaged in or suspected to be engaged in terrorism. Banks
have been advised to strictly follow the procedure laid down in the UAPA Order dated August 27, 2009
and ensure meticulous compliance to the Order issued by the Government. The Circular also advises the
banks that on receipt of the list of individuals and entities subject to UN sanctions (referred to as designated
lists) from RBI, they should ensure expeditious and effective implementation of the procedure prescribed
under Section 51A of the UAPA in regard to freezing or unfreezing of financial assets of the designated
individuals or entities enlisted in the UNSCRs and especially, in regard to funds, financial assets oreconomic resources or related services held in the form of bank accounts.
In terms of Para 4 of the Order, in regard to funds, financial assets or economic resources or related
services held in the form of bank accounts, the RBI has forwarded the designated lists to the banks and has
required them to maintain updated designated lists in electronic form and run a check on the given
parameters on a regular basis to verify whether individuals or entities listed in the schedule to the Order
(referred to as designated individuals or entities) are holding any funds, financial assets or economic
resources or related services held in the form of bank accounts with them. In case, the particulars of the any
of their customers match with the particulars of designated individuals or entities, the banks are required to
immediately, not later than 24 hours from the time of finding out such customer, inform full particulars of
the funds, financial assets or economic resources or related services held in the form of bank accounts, held
by such customer on their books to the Joint Secretary, Ministry of Home Affairs, and also convey over
telephone. The particulars apart from being sent by post or fax should necessarily be conveyed on e-mail.
Banks are also required to send a copy of the communication above to the UAPA nodal officer of the state
or UT where the account is held as the case may be.
In case, the match of any of the customers with the particulars of designated individuals or entities is
beyond doubt, the banks are required to prevent designated persons from conducting financial transactions,
under intimation to Joint Secretary. Banks are also required to file a Suspicious Transaction Report (STR)
with FIU-IND covering all transactions in the accounts covered above, carried through or attempted, as per
the prescribed format. On receipt of the particulars as mentioned above, IS-I Division of MHA would cause
a verification to be conducted by the State Police and/or the Central Agencies so as to ensure that the
individuals or entities identified by the banks are the ones listed as designated individuals or entities and the
funds, financial assets or economic resources or related services, reported by banks are held by the
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designated individuals or entities. This verification would be completed within a period not exceeding 5
working days from the date of receipt of such particulars. In case, the results of the verification indicate that
the properties are owned by or held for the benefit of the designated individuals or entities, an order to
freeze these assets under Section 51A of the UAPA would be issued within 24 hours of such verification
and conveyed electronically to the concerned bank branch under intimation to the RBI. This order will take
place without prior notice to the designated individuals or entities.
U.N. Security Council Resolution 1373 obligates countries to freeze without delay the funds or other assets
of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of
terrorist acts; of entities or controlled directly or indirectly by such persons; and of persons and entities
acting on behalf of, or at the direction of such persons and entities, including funds or other assets derived
or generated from property owned or controlled, directly or indirectly, by such persons and associated
persons and entities. To give effect to the requests of foreign countries under U.N. Security Council
Resolution 1373, the Ministry of External Affairs will examine the requests made by the foreign countries
and forward it electronically, with their comments, to the UAPA nodal officer for IS-I Division for freezing
of funds or other assets. The UAPA nodal officer of the IS-I Division of MHA, will cause the request to be
examined, within five working days so as to satisfy itself that on the basis of applicable legal principles, the
requested designation is supported by reasonable grounds, or a reasonable basis, to suspect or believe that
the proposed designee is a terrorist, one who finances terrorism or a terrorist organization, and upon his
satisfaction, request would be electronically forwarded to the nodal officers in RBI. The proposed designee,
as mentioned above would be treated as designated individuals or entities. Upon receipt of the requests
from the UAPA nodal officer, the list would be forwarded to banks and the procedure as enumerated shall
be followed.
The RBI Circular also lays down the procedure for unfreezing of funds or financial assets. Any individual
or entity, if it has evidence to prove that the freeing of funds, financial assets or economic resources or
related services, owned/held by them has been inadvertently frozen, they shall move an application giving
the requisite evidence, in writing, to the concerned bank. The banks shall inform and forward a copy of the
application together with full details of the asset frozen given by any individual or entity informing of the
funds, financial assets or economic resources or related services have been frozen inadvertently, to the
nodal officer of the IS-I Division of MHA as per the contact details given in paragraph 6(ii) within two
working days. The Joint Secretary, MHA, being the nodal officer, shall cause such verification as may be
required on the basis of the evidence furnished by the individual or entity if he is satisfied, he shall pass an
order, within fifteen working days, unfreezing the funds, financial assets or economic resources or related
services, owned/held by such applicant under intimation to the concerned bank. However, if it is not
possible for any reason to pass an order unfreezing the assets within fifteen working days, the nodal officer
of IS-I Division shall inform the applicant. The same circular has been forwarded by the SEBI directing
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that stock exchanges, depositories and registered intermediaries shall ensure expeditious and effective
implementation of the procedure laid down in the UAPA Order dated August 27, 2009.
Before looking at the criticisms leveled against the Act, it should be noted that it is fundamental that the
great powers of Congress to conduct war and to regulate the Nations foreign relations are subject to the
constitutional requirements of due process. The imperative necessity for safeguarding these rights to
procedural due process under the gravest of emergencies has existed throughout our constitutional history,
for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with
fundamental constitutional guarantees which, it is feared, will inhibit governmental action[23]. The UAP
Amendment Act, 2008, enacted hastily in the wake of 26/11, must be analyzed carefully on its own merits.
It is true that TADA, POTA and the UAPA of 2008 are penal laws, but in effect charges are slapped,
persons put in jail, bail denied and acquittals follow. Hence it is preventive detention. It has not been
widely noted that the Amendment Act of 2008 only builds upon the UAP Amendment Act of 2004. It
repealed POTA but retained its structure. It discarded an obnoxious provision in POTA which made
confessions to the police admissible in evidence. But the Act of 2004 altered the parent Act of 1967 for the
worse. The Act of 2008 aggravates an already bad situation.
In two respects the 2004 Act is worse than POTA. It gives a carte blanche to the prosecution to tender
against the accused evidence collected through the interception of wire, electronic or oral communication
under the provisions of the Indian Telegraph Act, 1885 or the Information Technology Act, 2000 or any
other law. Section 46 of the Act makes all this admissible as evidence. No safeguard worth the name is
provided. The one that does find mention in one proviso is an insult to intelligence. The accused must be
furnished with a copy of the order of the competent authority which directed the interception, at least 10
days before the trial commences. Not the transcript of the interception, only the order. The next proviso
wipes out even this illusory safeguard by empowering the judge to waive it if he feels that it was not
possible to furnish the order and the accused will not be prejudiced thereby. Contrasting this with POTA,
we find that POTA had an entire Chapter V containing 13 sections (Sections 36-48) which contained at
least some safeguards. The police was required to obtain in advance, albeit from an official, permission for
the interception, giving grounds in support of its application. A copy of the order was to be submitted
within a week to a review committee, set up under Section 60, for its approval. The government was
obliged to present to Parliament an annual report on the interceptions. The 2004 Bill drops all these
provisions although they do not hamper the police of the prosecution.
Also Section 58 of POTA has been dropped which made it an offence if a police officer exercises powers
corruptly or maliciously, knowing that there are no reasonable grounds for proceeding under this Act. In
respect of terrorist bodies also the framework of POTA is retained in the Act of 2004. POTA listed 25 of
them while the Act listed 32 in Schedule I. They stood banned as terrorist organization and other could
be added. It is for the organization to apply to the Central Government for its removal from the list. If the
government refuses, it must refer the case to a review committee within a month (Sections 35 and 36). The
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Committee cannot review the matter as a Court of appeal on the evidence as to the facts; but, only as a
High Court exercising its writ powers on errors of law. It will be headed by a Chairman who could be a
retired High Court judge handpicked by the Government. Besides him, it could likewise handpick such
other members not exceeding three and possessing such qualifications as may be prescribed by the
Government (Section 37). This is identical to Sections 18, 19 and 60 of POTA.
These provisions are utterly unconstitutional. They violate the fundamental right to freedom of association
guaranteed by Article 19(1) (c) of the Constitution as laid down in State of Madras v. V.G.Row. A
constitutional bench of five judges unanimously struck down as unconstitutional a ban on an organization
because there was no provision for an independent judicial inquiry. Like the review committee of POTA
and the Act, there was an advisory board only. It was held to be no safeguard. The Act of 2004 amended
the UAPA, 1967 which has been used to ban secessionist and terrorist organization. It also empowers the
centre to ban as an unlawful association any outfit that spreads group hatred which is punishable under
Sections 153A and 153B of IPC. Why this behavior is not included in the definition of unlawful activity
which remains confined to secessionism, is inexplicable. Section 12 inserts a new provision in the main Act
of 1967. It is Section 43F which gives unfettered powers to the police to ask anybody to furnish
information in his possession in relation to an offence under the Act on points or matters where he has
reason to believe it will be useful for or relevant to the purposes of the Act. The offence of failure to
provide that information is triable summarily and attracts punishment with imprisonment which may extend
to three years. The demand need not be made in writing and this sweeping provision has not exempted
journalists. Both the Acts of 2004 and 2008 are permanently inscribed on the statute book. Though the Act
has been amended many times it is still not clear precisely what advantages have the Acts of 1947, 2004,
and 2008 provided to the detection and prevention of crime.
COMPARATIVE LAWLast year in September, the Ugandan judiciary ruled that the sedition law was inconsistent with the principles of freedom of speech
and ruled in favour of press freedom by declaring the criminal sedition offence unconstitutional. Similarly, this law in Malaysia is
used to curb criticism of the state by non-Malays to protect political elitism! However, this law is being criticised a lot in that nation
and is under review. In Singapore, the maximum jail term for distributing a seditious publication is three years and not a life time.
While in developed countries like the UK, the last prosecution for sedition occurred in 1972 and by 1977, the common law offence
of sedition was abolished. The Sedition Act of 1798 in US that was used by the powers-that-be and the elite class of society for
political and other benefits was abolished by Thomas Jefferson after he came to power. Similarly, it was repealed in New Zealand in
2007. On the contrary, the sedition law, in our context, is indicative of our insane penchant for our colonial past! It also speaks
volumes about how we are still following laws that have either been annulled or abolished in most other countries. It is a matter of
utter disgrace that how the worlds largest democracy is having laws which were once hurdles in the path of its own freedom
struggle and which is blatantly against the very definition of democratic rights in todays context.
Recent Developments on Sedition
When the Supreme Court specifically laid down that the provisions of section 124A are only made out where there is a tendency to
public disorder by use of violence or incitement to violence, for the other interpretation (earlier afforded by the Privy Council) would
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conflict with the fundamental right under Art 19(1)(a),31 how is it that so many cases and FIRs continue to be registered against
media persons and others for their speeches and writings?
The conviction of Dr. Binayak Sen under Section 124A of the Indian Penal Code (IPC), among other offences, by a trial court in
Raipur, and charges of sedition threatened against Arundhati Roy, Varavara Rao and S.A.R. Geelani, who spoke at a seminar titled
Azadi, the Only Way organised by the Committee for the Release of Political Prisoners in Delhi, have given an urgent new voice to
the debate on the relevance of the law on sedition, as media personnel and human rights activists across the country continue to be
suppressed by this section. The particular injustice of convicting a person who has merely exercised his constitutional right to
freedom of expression has attracted the nations attention to the draconian colonial legacy of a hundred and forty year old offence.
CONCLUSIONThe amended UAPA expands the section on definitions to include terrorist offences, and adds three new
chapters dealing with punishment for terrorist activities, forfeiture of proceeds of terrorism and terrorist
organizations. By this amendment the UPA government has implicitly accepted the NDAs argument that
the existing laws are ineffective against terrorist acts. The Amendment abandons Section 32 of the POTA,
considered the most draconian of all its provisions. The Section permits the Court to consider as admissible
evidence certain confessions made to police officers. The only safeguard provided under POTA was that
the confession must be made by an accused before a police officer of a rank not lower than a
Superintendent; the assumption was that such a confession would ensure fair trial. POTA stated that
confessions should be recorded in an atmosphere free from threat or inducement, but did not specify how to
ensure such an atmosphere. Another safeguard in POTA, empowering the Court to order medical
examination of the accused in case of complaint of torture, did not inspire confidence because the
confession obtained by the police would in any case be treated as evidence. However, the omission of some
provisions of POTA does not make the amended UAPA less draconian. For instance, it includes with a
minor qualification Section 21 of POTA, which deals with offence relating to support given to a terrorist
organization.
Under the UAPA, the accused should have the intention to further the activity of a terrorist organization in
order to be held guilty. Vaiko, the Marumalarchi Dravida Munnetra Kazhagam leader, was held under
Section 21 of POTA for merely speaking in support of the LTTE, a banned organization under POTA.
Legal experts, however, feel the inclusion of intention is hardly a safeguard. Why should a person speak
in support of an organization if he does not have the intention to further its activities? The real objection to
this POTA provision was that since the word support could be interpreted as loosely as possible, anybody
could be accused of supporting a terrorist organization. Human rights groups are concerned that the
amended UAPA has included the POTA provision relating to the admissibility of evidence collected
through the interception of communication, ignoring the safeguards provided under the POTA. Besides
this, all the 32 terrorist organizations banned under POTA have been banned under the amended UAPA,
apparently without considering whether all of them are guilty of promoting terrorism. This ensures the
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creation of a suspicious state rather than doing anything to protect the state against the terrorists and
terrorist acts.
ARTICLES
1. V.Venkatesan, POTA Reinvented, Frontline, 2004, Vol. 21(22), Oct.23-
Nov.05.
2. Ravi Nair, The Unlawful Activities (Prevention) Amendment Act 2008:
Reporting Past Mistakes,Economic and Political Weekly, 2009
3. Balika, Tackling terrorism An appraisal of national investigation agency act
and unlawful activities(prevention) amendment act 2008
BOOKS
1. Surat Singh, Law relating to prevention of terrorism, (Delhi: Universal Law
Publishing Co.Pvt.Ltd., 2003).
2. Arnab Goswami, Combating terrorism: The legal challenge, (New Delhi: Har-
Anand Publications Pvt, Ltd., 2002).
WEBSITES
1. http://www.vakilno1.com/bareacts/unlawfulactivitiesprvamdtact/unlawfulactivitie
sprvamdtact1967.html
2. http://legalsutra.org/1605/the-unlawful-activities-prevention-act-and-
amendments/
3. http://www.satp.org/satporgtp/countries/india/document/actandordinances/the_unl
awful_activities_act1967.htm
4. http://www.satp.org/satporgtp/countries/india/document/actandordinances/POTA.
htm
5. http://www.alibris.com/search/books/qwork/-817534313/used/Law%20Relating
%20to%20Prevention%20of%20Terrorism
6. http://www.abebooks.co.uk/book-search/author/arnab-goswami/soft-cover/
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7. http://en.wikipedia.org/wiki/Sedition
8. http://www.hrw.org/news/2011/01/05/india-repeal-sedition-law
9. http://ibnlive.in.com/newstopics/sedition.html
10. http://kafila.org/2010/12/06/we-are-all-seditious-now-but-when-did-this-start/
11. http://www.mightylaws.in/294/sedition-offence-state