In The Name Of Security
Current Situation:
- Combining the degree of liberty without which law is tyranny and the degree of law without which liberty becomes licence is “a major dilemma of human society.” — Ephesian Heraclitus
- The recent ruling by the Supreme Court’s three-judge panel that merely belonging to a prohibited organisation qualifies as an offence under the Illegal Activities (Prevention) Act, 1967, is a serious setback for the fundamental justice principles.
- The distinction between active and passive membership in organisations that are prohibited has been eliminated by the judgement, which has served as the foundation for court decisions since 2011.
The possibility of abusing the clause:
- The decision runs the risk of allowing organisations to behave illegally while claiming to be fighting terrorism and maintaining the security of the State.
- Allowing the conviction of someone as a member is repulsive to the rule of law unless there is a specific intention to increase the material capabilities of a terrorist or illegal organisation. However, the verdict contains significant inconsistencies in its reasoning.
Previous court decisions pertaining to it:
- Arup Bhuyan v. State of Assam, Sri Indra Das v. State of Assam, and State of Kerala v. Raneef are three cases from 2011 that the Court has overturned.
- While the Raneef decision had given Section 10(a)(i) of the UAPA a limited interpretation, Section 10(a)(i) punishes membership in illegal organisations with a period of imprisonment that may extend to two years.
- The Union government and the State of Assam made the case that Section 10(a)(i) does not call for any additional overt acts or mens rea on the part of a member of a prohibited outfit, and the Court accepted their argument.
- The Centre and the State of Assam disagreed, saying “that in the case of a terrorist organisation, mere membership is not sufficient but that there has to be an act with intention to further the activities of the terrorist organisation, which is not the case under Section 10 with an unlawful association.” (The judgment’s pages 31, 32). The Court has disregarded both Section 10(a)(i) of the UAPA and
State of Maharashtra v. Jyoti Babasaheb Chorge (2012):
- The ruling showed how innocent young people might be mistaken for members of illegal or terrorist organisations just by association.
- In that instance, up to 15 young tribal women and men were accused of belonging to the Communist Party of India (Maoist), a “terrorist organisation,” for possessing books, articles, and pamphlets that included Maoist ideology.
- They weren’t accused of planning a terrorist camp, recruiting or housing terrorists, or raising money for terrorist acts. Nor were they accused of participating in any violent or terroristic acts.
- The Bombay High Court determined that Section 20 of the UAPA was “widely worded,” making membership in a terrorist organisation punishable by imprisonment for a term that may last for life. The Arup Bhuyan and Raneef rulings (2011), which stated that such membership cannot be passive, were cited by the court.
- Arup Bhuyan was found guilty of belonging to a terrorist organisation in accordance with section 3(5) of the TADA. “Mere membership in a prohibited organisation will not incriminate a person unless he resorts to violence or incites others to violence or commits an act intended to cause disorder,” the Supreme Court ruled.
Criticism of the UAPA’s definitions of terrorist and illegal organisations
- Circular and ambiguous definitions of terrorist and illegal organisations can be found in UAPA.
- The Act merely states that they have been made aware of as organisations engaged in “terrorist” or “illegal activities.” The federal government has so far designated 13 illegal organisations and 42 terrorist organisations.
- On accusations of owning Maoist literature or being sympathisers of Maoist ideology, in Maoist-affected, frequently semi-literate. There is frequently no proof that these young people engaged in any violent or illegal action or were a part of any plot to commit any crime. They are classified as offenders merely because they interact with those who belong to prohibited organisations.
- Governments all around the world as a result occasionally incorrectly labelled groups as “terrorists,” and to stop the abuse of counterterrorism capabilities.
- Mislabeling weakens initiatives to combat real terrorism. It undercuts democratic institutions, principles, and the gravity of the security danger posed by terrorist organisations.
Conclusion:
- The three preceding decisions (Arup Bhuyan, Indra Das, and Raneef) are consistent with severe court interpretations of what constitutes terrorist/illegal action or being a member of a terrorist/illegal group in every liberal democracy, rather than being anomalies.
- This increased mens rea has the consequence of exempting anyone who might unintentionally interact with terrorists or groups, such as during social or professional exchanges. The Supreme Court has eliminated the mens rea criterion with its decision from Friday.
- The legislative and judiciary have frequently resisted the aggressive assertion of executive power to illegally detain, question, and wrongly designate and prosecute individuals as terrorists in nations including the US, UK, and Canada.
- In order to safeguard individual liberties without jeopardising national sovereignty or security, the Indian parliament must reform and amend its laws.
