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Jurisprudence of the judicial rubber stamp

Topics Covered:

Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

 

Jurisprudence of the judicial rubber stamp

 

What to study?

For Prelims: Overview of UAPA and tribunals.

For Mains: Concerns over functioning of these tribunals, challenges therein and the need for reforms.

 

Context: In recent times, amendments to the unlawful activities prevention act (UAPA), that allow the central government to designate individuals as terrorists, have been in the news.

The amendments have been criticised on substantial grounds, on the basis that they vest too much unchecked power in the central government, and can enable social and political persecution. The current debate also throws some light on the functioning of UAPA tribunal.

 

What are UAPA tribunals? How and why they are constituted?

The tribunals are constituted under UAPA.

The role of the tribunal is to review a ban imposed by the government.

Composition Of the tribunal: It consists of a sitting judge of the High Court.

Under Section 4 of the UAPA, the UAPA Tribunal is tasked with deciding whether there exists “sufficient cause” for the association to be declared unlawful. In other words, the Tribunal must review the grounds mentioned in the notification on which the central government has formed its opinion, and examine whether those grounds are sufficient or not.

 

Provisions which give sweeping powers to the Centre:

Section 3(1) of the UAPA authorizes the central government to declare, by notification, an association unlawful, if, in its opinion, that association is, or has become, an unlawful association.

Section 3 (1) and 3 (4) require that the notification is given wide publicity and every effort is made to serve it upon the association. Section 3(2) requires that the same notification that declares the Association unlawful set out the grounds on which the declaration was made, while exempting the government from disclosing any facts that it considers against the public interest to disclose.

 

The Recent issue:

This is the case involving the banning of the Jamaat-e-Islami, Jammu And Kashmir [‘JeI, J&K’, or ‘Jamaat J&K’] by the central government, acting under the powers given to it by the UAPA.

During the course of final arguments three core issues emerged. Each of these issues go to the heart of procedural equity, fair trial and – ultimately – ensuring that there exists parity between the State and individuals or groups in the context of the curtailment of core fundamental rights, such as the freedom of speech and association.

At the heart of the dispute on facts between the association and the Central government is the claim of the association that the FIRs and cases produced by the Central government before the Tribunal had no connection with it – none of the FIRs were against the association, and none of the persons named in those FIRs were its members.

 

 

Arguments by the association:

The notification declaring the Association unlawful did not set out the “grounds” or the basis for the declaration.

What passed for “grounds” was vague and did not contain facts which would put the association to notice of what the case against it was.

 

How the Centre defends it’s move?

The central government has replied that the notification’s setting out that the association was “supporting extremism and militancy”, “indulging in anti national and subversive activities” and activities “to disrupt the territorial integrity” and so on, was sufficient factual detail to constitute the “grounds” for its decision, and in any case further factual details were set out in a separate background note it had supplied to the Tribunal.

 

Why the recent UAPA Tribunal Order, confirming the government’s ban on the Jamaat-e-Islami, Jammu and Kashmir (“JeI, J&K”), is being contested?

  1. Key individual rights of freedom of speech and association are at stake. These rights must be given their due.
  2. The rules of procedure and evidence are designed with the understanding that the State exercises a huge amount of power – and that, in a contest between the State and the individual (or a group), certain rules are needed to balance out this unequal power; this is the heart of the idea of a “fair trial.” The tribunal defends this argument.
  3. A close reading of UAPA Tribunal orders makes it clear that the requirement of judicial scrutiny is little more than a parchment barrier.
  4. In allowing the government vast amounts of leeway in proving its case, tribunals depart from some of the most fundamental principles of fair procedure, and act as little more than judicial rubber stamps.

 

Conclusion:

This is not a jurisprudence that respects constitutional democracy or fundamental freedoms such as speech and association. Rather, it is a jurisprudence of the judicial rubber stamp: courts acting to legitimise and enable governmental overreach, rather than protecting citizens and the rights of citizens against the government.

It is a situation where in the words of a famous English judge the judiciary has gone from “lions under the throne” to “mice squeaking under a chair in the Home Office” – with “consequences that the nation will one day bitterly regret”.

 

Sources: the Hindu.