Date: 29/03/2023

Relevance: GS-2: Structure, organization and functioning of the Executive and the Judiciary—Ministries and Departments of the Government.

Key Phrases: abhorrent to the rule of law, Unlawful Activities (Prevention) Act (UAPA),Mens Rea, Arup Bhuyan vs The State Of Assam Home Department, unlawful activity.

Context:

• The recent decision by a three-judge bench of the Supreme court (Arup Bhuyan vs The State of Assam Home Department) has caused concern among legal experts and human rights activists.
• The verdict, which held that mere membership of a banned association is sufficient to constitute an offense under the Unlawful Activities (Prevention) Act, 1967, is seen as a severe blow to principles of fundamental justice.

Key Highlights:

• The Court's decision has done away with the distinction between active and passive membership of proscribed organizations, which has been the basis of court rulings since 2011.
• Unless there is a specific intent to enhance the material abilities of a terrorist or unlawful organization, permitting the conviction of a person as a member is abhorrent to the rule of law.
• The verdict is fraught with the risk of making it legal for agencies to act lawlessly while claiming to fight terrorism and preserve the State's security.
• The definitions of terrorist and unlawful organizations in UAPA are circular and vague.
• The Act merely states that they are organizations involved in "terrorist"/"unlawful activities" and notified as such. The central government has so far notified 42 organizations.

Key Issue with Recent Judgement:

• The removal of the distinction between active and passive membership: The judgment has done away with the distinction between active and passive membership of proscribed organizations, which has been the basis of court rulings since 2011. This means that mere membership of a banned association is sufficient to constitute an offense under the UAPA.
• The dilution of efforts to combat actual terrorism: Unless there is a specific intent to enhance the material abilities of a terrorist or unlawful organization, permitting the conviction of a person as a member is abhorrent to the rule of law. Mislabeling dilutes efforts to combat actual terrorism.
• The risk of making it legal for agencies to act lawlessly: The verdict is fraught with the risk of making it legal for agencies to act lawlessly while claiming to fight terrorism and preserve the State's security. The ruling has gone beyond the pleadings made by the State. In effect, the Court has obliterated the requirement of mens rea from both membership of an unlawful organization and membership of a terrorist organization.
• The circular and vague definitions of terrorist and unlawful organizations in UAPA: The definitions of terrorist and unlawful organizations in UAPA are circular and vague. The Act merely states that they are organizations involved in "terrorist"/"unlawful activities" and notified as such. The central government has so far notified 42 organizations.
• The potential for innocent citizens to be ensnared: Innocent young men and women can get ensnared as members of unlawful/terrorist organizations merely by association. This can happen even if they are not involved in any terrorist act or act of violence, organizing a terrorist camp, recruiting or sheltering people, or raising finance for terrorist acts.

Way Forward:

• Review the UAPA Act:
  • There is a need to review the UAPA Act to make it more precise in its definitions and provisions.
  • The Act should clearly distinguish between active and passive membership of banned organizations to prevent wrongful prosecution of innocent individuals.
• Specific Guidelines:
  • The Act should provide specific guidelines on how membership of an unlawful organization can be inferred in the absence of a registry.
  • The authorities should exercise caution while invoking the UAPA Act and ensure that it is not misused to target individuals or organizations that do not pose a genuine threat to national security.
  • There should be a transparent and independent process to monitor the application of the Act, and any cases of abuse should be investigated and punished.
• Maintain a vigilant eye:
  • The judiciary should maintain a vigilant eye on cases under the UAPA Act to ensure that the fundamental rights of citizens are not violated.
  • The recent Supreme Court verdict has caused concern among legal experts and human rights activists, and it is essential that the judiciary maintains its independence and impartiality while interpreting the provisions of the Act.
• Creating Awareness:
  • There is a need to create awareness among the public about the UAPA Act and its implications.
  • Many people may not be aware of the Act's provisions and may unwittingly become associated with a banned organization.
  • Awareness campaigns and training programs should be conducted to educate people on the Act's provisions and how to avoid wrongful prosecution.

Conclusion:

• The ruling suffers from substantive contradictions in its reasoning, and there is a need for a more nuanced approach that balances national security with fundamental justice and human rights.
• The UAPA Act is an essential tool in combating terrorism and safeguarding national security.
• However, it is crucial to ensure that its provisions are not misused to violate the fundamental rights of citizens.
• The government, judiciary, and civil society must work together to strike a balance between national security and individual rights.

Source: The Indian Express

Mains Question:

Q. The recent Supreme Court verdict on UAPA has raised concerns about the potential for agencies to act lawlessly while claiming to fight terrorism and preserve the State’s security. Examine the implications of the judgment on the rights of citizens in India. (250 Words).