RECENT amendments to the Unlawful Activities Prevention Act (UAPA), 1967, garnered considerable attention, unsurprisingly, since they allow individuals to be designated “terrorists” without effective redress. But their coverage eclipsed another event around the same time, which reveals with great force the pernicious workings of the Act. A UAPA tribunal upheld the eighth successive ban on the Students’ Islamic Movement of India (SIMI), ensuring its near-continuous proscription since 2001.
The tribunal’s decision, delivered on July 29 and published in the gazette on August 27, may seem ordinary to the extent that it repeats the narrative as each SIMI tribunal before it did, including the only one that struck down the ban on narrow grounds in 2008. But it is this very expectedness of UAPA tribunals, their quasi-inevitable nature, that exposes the extraordinariness of the Act and raises troubling questions that go to the heart of India’s constitutional democracy.
These tribunals are meant as a safeguard against the government’s power to declare associations “unlawful” under the provisions of the UAPA, which it can exercise on the grounds that the association supports claims for secession or aids in causing disaffection against the country. The government must set up a tribunal consisting of a High Court judge to decide within six months whether there is sufficient cause to uphold the ban. If the ban is confirmed, a host of actions become criminal offences: from membership of the banned association to aiding in its activities.
While providing for a judicial check, the UAPA simultaneously ensures its ineffectiveness. The Act empowers tribunals to modify procedure and consider evidence that will not be permitted in a trial. Before the Bill was passed in Parliament, opposition members contended that these tribunals, appointed solely at the government’s discretion, would serve merely as a stamp on government action. But the then Home Minister, Y.B. Chavan, insisted that “real threats to the integrity and the sovereignty of this country” made it necessary to allow exceptional procedures, as using ordinary court processes would only cause delays.
The tribunals, in their functioning, have largely accepted this reasoning, electing to use their discretionary powers, as intended by the government, to close off legal avenues for associations. The state and its needs are used to justify extraordinary procedures that, in turn, help mask and protect the state’s actions. The safeguard thus belies itself, acting more as a veneer of legitimacy.
The UAPA tribunal judgment in August upholding the five-year ban on SIMI reflects these mechanisms, which are crucial to uncovering tensions between state sovereignty and protections promised by the law. Understanding the 2019 order and its implications requires tracing SIMI’s engagement with tribunals from its earliest ban.
When SIMI was first banned in 2001, a few days after the 9/11 terror attacks in the United States, most material against it comprised pamphlets that the government merely found “objectionable”, from a calendar indicating that “Kashmiri Muslims had been suppressed and exploited for long” to a poster referring to the Babri Masjid and showing three weeping mosques. Only three incidents of violence were mentioned in the tribunal order, in which the sole link between the accused persons and SIMI was their confessional statements made to the police.
In allowing such statements, the 2001 tribunal made a crucial departure from ordinary procedure, repeated by every subsequent SIMI tribunal as well. Recognising that confessions to the police may often be coerced, the Indian Evidence Act bars them from being used against the accused persons in a trial. But under the UAPA, tribunals are required to conduct merely an “inquiry”, not an adversarial trial. Tribunals are further empowered to follow the Indian Evidence Act only as far as “practicable” and regulate their own procedure, while largely following civil procedures. This enabled each SIMI tribunal to dismiss apprehensions of coercion and rely on confessions to the police, which have formed the bulk of the government’s evidence from then until now.
The ban on SIMI was upheld in 2001 and renewed when the statutory two-year period lapsed. The 2003 tribunal explicitly diluted the standard of proof required from the state. Since it could not determine whether criminal charges against alleged SIMI members—the main factual basis for banning SIMI—were true or false, it held that the tribunals should interfere with the ban “only when there is total absence of material against an association”.
This absurdly low threshold would be near-impossible to beat for any association, no matter how legitimate, especially given the fact that “unlawful” under the Act includes terms as vague as causing “disaffection against India”. To make things worse, the “material” that the tribunal refers to includes secret materials not even shown to the association, ensuring zero checks on whether there ever was any incriminating material or of what kind.
A 1993 tribunal examining the ban on the Rashtriya Swayamsewak Sangh, the Vishwa Hindu Parishad and the Bajrang Dal had refused to look at material that was not given to the associations, pointing out that the Act permitted the state to withhold certain facts only from the public, not opposing counsel. But a year and a half later, in Jamaat-e-Islami Hind vs Union of India (1995), the Supreme Court ruled that tribunals could consider such material, and each SIMI tribunal followed suit.
The 2003 tribunal, in fact, expected SIMI to defend itself against what it did not know in more ways than one with secret evidence. Confirming the ban, the tribunal noted that SIMI had never issued public statements condemning terrorism, calling on its members to have faith in the Constitution, and declaring that it does not advocate Kashmir’s secession. Before the tribunal, its former members had done precisely that. Yet, the order seemed to hold against SIMI the fact that the association as a whole did not do so, outside the tribunal proceedings in the public sphere. But SIMI, of course, could not make such declarations, since it was illegal for it to exist, and could not have before it was banned, when it did not even know what allegations it would one day have to fend off.
After the 2003 ban lapsed, the government again banned SIMI in 2006. Though the government needs fresh reasons to renew a ban, it had none then—no specific cases allegedly involving SIMI members were registered between the 2003 and 2006 bans, even for the brief period SIMI was lawful. Despite this fatal flaw, the tribunal upheld the ban, repeating the government’s preposterous reasoning that “though no violent incident involving SIMI has been reported during 2004-05, there is no indication that the outfit has given up the path of violence”.
Since SIMI’s ex-president approached the tribunal, exercising the only lawful redress available to the organisation, the tribunal concluded that he would not take “so much of interest” in an organisation that no longer existed, encircling SIMI in a trap: if its former members did not appear, the ban would be upheld, and if they did, the fact that they had appeared would be reason to uphold the ban. Another former member came before the tribunal to explain that ‘“jehad” in SIMI’s oath of allegiance merely meant a struggle against evil. The tribunal speculated that anything “not in conformity with Islam” could be treated as “evil”, although SIMI had presented no such understanding, and concluded that its oath of allegiance thus meant non-Muslims could not practise their own religions and SIMI was anti-secular.
Declared ‘unlawful’
Further, in addition to being declared “unlawful”, SIMI had been termed “terrorist” under a different provision of the UAPA, a declaration that does not even allow the minimal judicial check of a tribunal and is permanent until revoked. The 2006 tribunal took this opaque designation at face value, determining with “no direct evidence” that SIMI must be linked to certain magazines, simply since both had been alleged to be anti-national. The 2006 order most starkly manifests the layering of accusations, and the erosion of evidentiary standards, under the UAPA.
Individuals and publications stand accused of being unlawful and linked to SIMI, mostly through confessions inadmissible in trials. SIMI stands accused of terrorist aims, through a declaration for which the government has to provide no reasons to anyone. These allegations help establish each other, sufficing as proof.
The ban was then renewed in 2008, and for the first and only time cancelled by the tribunal. As was usual practice, the grounds for the 2008 ban, specified in the notification, were near-verbatim reproduced from the previous one. While previous tribunals had dismissed SIMI’s resultant concerns over the government’s non-application of mind, the 2008 one termed this identical wording a “callous disregard of statutory duty”. The striking down of the ban, however, made little difference. The very next day, the state successfully petitioned the Supreme Court to stay the order, without even giving SIMI notice to appear, ensuring that SIMI continued to be unlawful from 2008 to 2010.
Later tribunal orders show similar patterns, reflecting a situation where the government’s claims about an association are effectively impossible to dislodge. On the basis of the government’s allegations, for example, the 2010 tribunal took emails from Indian Mujahideen explicitly disassociating itself from SIMI as proof of their link. The 2012 tribunal went far enough to explicitly reverse the burden of proof, holding that once declared unlawful, the onus was on the association to show why the ban should be cancelled.
The 2012 order further held that merely because the government had produced 43 witnesses, and SIMI had produced none, prima facie the government had made its case. But based on how it dealt with public witnesses, it is likely that producing witnesses would have had little effect. The secretary of the Khair-e-Unmat Trust deposed that the trust should be removed from the government’s background note on SIMI since it had no links with SIMI. According to the order, his statement that the trust usually requires students to memorise religious teachings before giving them scholarships “only showed that the trust was breeding fanatics”.
About the 72-year-old witness, the tribunal stated that “he claims to be suffering” from old age when convenient; and his explanation of jehad as meaning struggle was termed “crafty”. Although it drew adverse inferences against SIMI’s ex-members for not taking the stand, it concluded from the mere tenor of their cross-examination that since they represented SIMI’s interests, the organisation should be a “continuing organisation”, holding against them the fact that they had exercised their only lawful remedy.
Evidentiary safeguards
As previous tribunals had done, the 2012 one relaxed several evidentiary safeguards citing “practicality” and the state’s convenience. For instance, the state often produced only high-ranking officers as witnesses instead of those closely involved with investigating cases, frustrating SIMI’s right to cross-examine those with personal knowledge of a case and pinpoint potential flaws in the investigation.
The tribunal used its six-month time limit to explain away the need to produce investigating officers and also to rationalise SIMI having to cross-examine witnesses in hearings held all over the country with barely any time to prepare. For the 2012 tribunal, however, even such truncated proceedings cost too much “time and expenditure”, and it recommended prolonging the “grossly inadequate” ban period from two to five years. The UAPA was thus amended, and the five-year ban on SIMI in 2014 was renewed on February 1, 2019, for another five years.
Though tribunals are meant to confine themselves to fresh evidence, the 2019 order records only a few incidents after the 2014 ban, all alleged to be linked to SIMI primarily through confessional statements made in older cases. Further, of the 34 new cases before the tribunal, 27 pertain to a set of alleged SIMI members who were killed in encounters. Several cases in this year’s order overlap with the 2014 tribunal, including one where the only allegation is of the accused shouting “anti-national” slogans, none of which pertain to SIMI, while going back to jail from the court. The 2019 order, like several others before it, holds that tribunals can call for brand new evidence not even available to the government when it banned the association, potentially allowing the government to justify a ban, for which it had inadequate evidence, in retrospect.
For each tribunal, thus, what remains decisive is the ability to rely on confessions, secret materials and other evidence not tested in a trial, without following standards established under ordinary law. Each departure is justified for the same reasons cited by the government in Parliament: once the premise of anti-national threats is accepted, as the then Home Minister Chavan said, “all other powers must automatically flow from that position”.
The clandestine nature of unlawful activities, SIMI’s highly educated cadres and sophisticated methods—all these, various tribunals have agreed, render “hard evidence” and make ordinary processes impossible.
Such reasoning takes as its starting point the position that the activities in question are unlawful. But once this starting point is assumed and exceptional procedures are applied, an association’s ability to contest the initial assumption is effectively taken away. In fact, those protesting against the association’s ban render themselves vulnerable to a jail term merely by appearing before the tribunal. The UAPA allows only members of the association to contest the ban, not former members, but membership of banned associations is a criminal offence.
What could the persistence of a law like the UAPA say about our republic? Scholars such as Nasser Hussain and Ujjwal Kumar Singh have argued that extraordinary laws cannot be dismissed as mere aberrations in the legal structure. Within the normal apparatus, constitutional guarantees of due process coexist with the state’s licence to take them away.
Not unlike its colonial predecessor, the Indian state bestows legal safeguards to legitimise its dominance, while preserving enough discretion to override them when it deems necessary. The judiciary is responsible for checking this power, but it too is constrained by the procedures that govern it and by a deference to reasons of state.
In this understanding, the UAPA tribunal is one such safeguard, created to prove itself false, a mere facade to justify arbitrary state authority. Regular courts, too, have not yet seriously considered challenges to the Act’s constitutionality despite its many fundamental infirmities. The long, bleak history of the UAPA certainly does not lend itself to optimism. At the same time, its stubbornly prolonged existence provides all the more impetus for its overhaul.
Nitika Khaitan is a lawyer based in Delhi.
