| Relevance of the Unlawful Activities (Prevention) Act, 1967
Dr Binayak Sen's case has brought a few Acts in public focus. While a lot of discussion is going on about the decision itself, even the two Acts, viz. the Unlawful Activities (Prevention) Act, 1967 and the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005 are also being securitized by many people. Many Human Rights group and other intellectuals are calling these two Acts draconian and anti-people.
This made me go through the two Acts so as to know what exactly these Acts say. Here I present the salient features of the the Unlawful Activities (Prevention) Act, 1967. Dr Sen has been convicted under section 39(2) of this Act which is related to support given to a terrorist organization. Here support includes inviting support, arranging, managing or assisting in arranging or managing a meeting or addressing a meeting. He was found not guilty under section 20 of the Act which is about being member of a terrorist gang or organization.
To begin with, the Act defines two words cession and secession in following way-
(a) cession includes admission of the claim of any foreign country to any such part ;
(b) secession includes the assertion of any claim to determine whether to remain a part of India
It defines "unlawful activity" as any action through an act or by words intended to bring about the cession or secession of a part of India or which incites others to bring about such cession or secession. It also includes such action which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India or to cause disaffection against India.
It defines "unlawful association" as that which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity etc or which has for its object any activity punishable under section 153A or section 153B of the IPC. 153 A is about promoting enmity between different groups and doing acts prejudicial to maintenance of harmony and 153 B is about Imputations, assertions prejudicial to national-integration.
The power of declaring of an association as unlawful vests with the Central Government where it needs to specify the grounds except those facts against that are public interest. This notification shall be published in not less than one daily newspaper.
But after this declaration, there is a provision about mandatory reference to a Tribunal, consisting of one person, who he is a Judge of a High Court, within thirty days. The Tribunal shall give opportunity to the affected association to present their disagreement, if any. If the declaration is confirmed by the Tribunal, it shall remain in force for 2 years.
After declaration of any association as an unlawful association, the Central Government has right to issue prohibitory order regarding transfer of money. Any person aggrieved by this prohibitory order may make an application to the District Judge within 15 days. Similarly, the the Central Government gets right to notify any place being used for unlawful act. Here again, any person aggrieved may challenge these orders before the District Judge within 30 days.
Section 10, 11, 12 and 13 define the offences in this Act. Section 10 provides penalty for being members of an unlawful association(two years), section 11 gives penalty for dealing with funds of an unlawful association three years), section 12 talks of penalty for contravention of an order made in respect of notified place (one year) section 13 deals with punishment for unlawful activities (seven years or five years).
Chapter IV to VII of the Act and the schedule were added through the Unlawful Activities (Prevention) Amendment Act, 2004. Here in section 15 is defined the terrorist act. It includes threatening the unity, integrity, security or sovereignty of India or striking terror in the people by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by biological radioactive, nuclear substances or to overawe by means of criminal force or detains, kidnaps or abducts any person to compel any Government to do or abstain from doing any act.
Various punishments are described from section section 16 to 22, including punishment for terrorist act, making demands of radioactive substances, nuclear devices, etc, raising fund for terrorist act, conspiracy, organizing of terrorist camps, recruiting of any person or persons for terrorist act, harbouring, being member of terrorist gang or organisation, holding proceeds of terrorism and threatening witness. Proceeds of terrorism means all kinds of properties derived from commission of any terrorist act. There is also section 38 for offence relating to membership of a terrorist organisation, section 39 to support given to a terrorist organisation and section 40 for raising fund for a terrorist organisation.
A brief analysis of the law would make it clear that this Act is to control and act upon those associations which indulge in unlawful activities or in terrorist acts. Unlawful activity is as any action as regards cession or secession of a part of India or about questioning/disrupting the sovereignty and territorial integrity of India. Here again though an association is declared unlawful by the Central government, it needs a ratification by a Tribunal consisting of a High Court Judge. As obviously known to us, anyone dissatisfied by the order of this Tribunal can always move to the High Court under Article 226 of the Constitution and to the Supreme Court under SLP or Article 32.
Now there are two issues to deal with. One is about the conviction of Dr Sen under this Act and the other is about the Act itself. People might argue out the conviction of Dr Sen under this Act, delving into the law and the related facts of the case. But can there be any person who would deny that no Nation worth its name would ever tolerate an act that goes against its basic existence, that calls for its secession or cession, that challenges its sovereignty, unity and integrity? While there can be theoretical and ideological discussions about the basic concept of a State (or a Nation) but as long as a Nation exists in its given format, no such entity will ever endure such activities that raise question about their being. In the same measure, no Nation can tolerate terrorist acts being undertaken in its territory against the people whose protection is its basic duty.
Hence to say that the Act itself is draconian or needs to be scrapped is akin to openly inviting anarchy and mindless violence, where there would be no semblance of law and justice. Any Human Rights activist would easily understand that if the basic structures of law that have been framed to protect the society and its people, are themselves scrapped or removed, protecting the Human Rights would become an impossible task. Hence, asking for such things is nothing short of playing with fire, with an extremely short-sighted attitude. Yes, one might argue out individual cases, individual actions and individual organizations on a case to case basis, at all suitable and appropriate channels, including the Higher judiciary, but an attempt at rubbishing the very foundations of law seems to be an extremely dangerous feature.
Amitabh Thakur
IPS,
Currently at IIM Lucknow
94155-34526
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