undemocratic and outdated laws

7/30/2019 undemocratic and outdated laws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A Study on Undemocratic and Outdated Laws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

undemocratic and outdated laws

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Transcript of undemocratic and outdated laws