On August 2, 2019 the Parliament passed Unlawful Activities (Prevention) Amendment Bill, 2019 seeking amendment in the Unlawful Activities Prevention Act (UAPA), 1967. This Bill allows the Government to declare ‘individuals as terrorists’ as opposed to the previous law which allowed only organizations to be labelled as ‘terrorist organizations’ but not individuals. This came after a recent amendment in the National Investigation Act, 2008 which provided the National Investigation Agency the power to “investigate terror crimes relating to Indians and interests of India”. A major lacuna of these amendment bills is that they are ambiguous and don’t spell out who is a “terrorist” and what constitutes “interests of India”. Such amendments to the counter-terrorism security laws give unbridled power to the police officials and the Centre which can then implicate people under the Act without providing for any justification. Moreover, this leads to an increased burden on the judiciary to interpret these vague terms and ensure that the application of the law does not violate the principles of legality. One cannot deny that these amendments have a high potential of misuse and might lead to serious human rights infringement.

In this article, the author shall argue that statutes should be drafted cogently and applied uniformly, in a manner that they reduce uncertainty in the judicial process. This is not to take away the right of judicial discretion but to eradicate the staggering ambiguity of laws so that people are not unfairly and disproportionately charged.

Legislative and Judicial Inconsistency: The Case of Unlawful Activities Prevention Act (UAPA)

One of the major misses of IPC is that being a colonial statute of the 19th Century, it is not equipped to check the organized terrorist crimes that independent India faces today. It is for this reason, that time and again, the Parliament has been enacting counter-terrorism security laws in India such as the erstwhile Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987 and Prevention of Terrorist Activities Act (POTA), 2002 etc along with the institutionalization of organizations such as National Investigation Agency to curb the anti-national and terrorist activities in the country. These Acts often jettison the basic established principles of criminal jurisprudence, for instance, TADA departed from the principle of procedural fairness when it allowed admission of confessions made before the police officers admissible in front of the Court.

The UAPA, 1967 is one such law with an object to “provide for the more effective prevention of certain unlawful activities of individuals and associations, and dealing with terrorist activities and for matters connected therewith.” Initially, this Act did not encompass terrorist acts but later in 2012 this Act was amended and its scope was expanded vaguely to include terrorist activities as well. It has received a lot of criticism, since then, as it given an upper hand to investigation authorities and Courts to rope in the Accused of these crimes. This leads to a jurisprudential conflict between the promise of constitutional safeguard and erosion of legal rights.

The UAPA authorizes the Government to ban “unlawful organizations” and “terrorist organizations” and provides penal sanctions for such organizations. The heart of the contest is the autocratic and broad powers conferred upon the Central Government to declare any organization as a “terrorist organization”. There is no definition of what a “terrorist organization” is and what constitutes the “membership of a terrorist organization” under the Act. This amounts to violation to the Principle of Maximum Certainty. The principle is one of the three principles of legality and implies that that law must be adequately available to individuals and their application should be clearly defined. It is an established rule that legal sanctions should not be construed to the detriment of the accused. However, the ambiguity of this Act does not equip individuals with the knowledge of what is, in fact, in the ambit of dissent and what becomes dissidence.

In 2011, the Supreme Court had attempted to dispel the ambiguity by holding that “membership” was limited to involvement in active incitement of violence but this has been an unsuccessful attempt. In the case of Romila Thapar and Others v. Union of India and Others (MANU/SC/1098/2018) the Supreme Court, without any reasoning, dismissed the review petition which was filed in light of the decision regarding the Bhima Koregaon aftermath. Five accused people were convicted under the UAPA on the ground that they were part of CPI (M) which is a banned organization. However, the Petitioners were not allowed to scrutinize this evidence, as it was submitted in sealed covers and only judges could peruse it. The twisted justification “having suspected Maoist links” goes a long way in ensuring that the personal liberty of individuals is effaced most uncertainly. This is a testimony to the fact that along with centre and investigating agencies, the judiciary also fails to discharge its burden of providing justice to the people.

The recent Bill was criticised for violating the fundamental principle of Rule of Law. The principle ensures that people subjected to law, know the law and its practical implications. The amendment has provided Centre and the investigative agency with wide discretionary powers that can be used to implicate and target people expressing dissent. The most deplorable fact is that under Section 43D(5) of the Act, the Court cannot provide bail to the accused if the case diary and the charge sheet state that there are reasonable grounds for believing that the accusations against the accused are prima facie true. This provides for a mechanism to perpetuate imprisonment without a trial and warrant against the presumption of innocence. The aforementioned provisions show that UAPA doesn’t qualify the test of legality and fairness in the criminal law jurisprudence.

Suggestions and the Way Forward

The Rule of Law principle presupposes that the judicial process is just and fair and the Constitution of India which is the supreme document envisaging rights and freedoms of citizens is strictly adhered to. But as seen above, the legislature, executive and judiciary have conveniently used rule of law principle(s) without adhering to Constitution at all. It is essential that to revamp the existing legal order we need to stop looking at these reforms as a “second-order” issue. There is a need for two-fold change in the criminal justice system. First, a mechanism should be institutionalized for an objective review of credible and innocent claims. For this purpose, it is essential to internalize individual rights and give a benefit of doubt to the accused. Second, the criminal justice system along with the archaic laws should be reviewed to avoid wrongful convictions.

A. Internalization of Individual Rights

The state legislature and Parliament have been constantly failing to deliberate upon individual rights. Swayed by the necessity of social defence, i.e. hysteria generated by ‘law and order’ and ‘security of the state’, law-making authorities turn a blind eye to Part III of the Constitution. The inconsistency approach is not just limited to legislature but the judiciary is an equal culprit in this regard. While the legislature drafts and passes bills which are inconsistent with the rights provided under the Constitution of India, the judiciary delivers judgments without looking at the precedents held in previous decisions. There is a lack of internalization of the primacy of rights by the legislature and judiciary. Statutes such as TADA, POTA, AFSPA and NDPSA are clear examples of abuse of power by the legislature which have clearly infringed the fundamentals of criminal law. The Courts have been passive onlookers when the investigation officer tears apart the rule of fair procedure. It is crucial to internalize individual rights of people while drafting and interpreting statutory provisions. It is important to strike a balance between social security and individual rights which is possible only if the law is not whimsical and drafted carefully. The import of specific words and phrases in a provision should be thoroughly explained by the legislature, leaving little room for ambiguity.

B. Need to revisit the laws

The need of the hour is to look into legislative provisions and examine whether they hold significance in today’s time. Evidently, there is constant law-making by the central and state legislatures but these laws are mostly substituting one law or other and the government often overlooks the laws existing in that area which creates more confusion. The laws which are quite archaic and against the social mores should be redrafted which should not be a patchwork but a systemic overhaul. The trend of passing piecemeal amendments for appeasing the masses such as introducing bills prescribing death penalty legislation for the offence of rape does not carefully assess the impact of reactionary laws on the crime committed. Thus, the primary requirement is to assess the laws in place, revamp the old ones and formulate the certain and just laws which would stand the test of time.

However, solution indeed cannot be “Rule Formalism” where the rules are mechanically applied by judges in each case in search of a definite answer, leaving no room for judge’s discretion. It is an indisputable fact that law is never perfect and determinate and the judge must fill the gaps during implementation and interpretation in specific fact scenarios. The judiciary can provide for guidelines for convicting and sentencing individuals in cases where the law is still not cogent. It should also be pre-empted that what can be the grounds for deviating from precedent. The Judiciary should not deviate from the legislative framing of the provisions. In the garb of judicial activism, it should not unduly contravene the legislature’s command and commit the constitutional blunder of judicial overreach.

The article has been written by Mansi Gupta

This article was first published in the Blog namely The Criminal Law Blog