The Unlawful Activities (Prevention)
Amendment Bill, 2011 was introduced in the Winter Session, 2012 of Parliament
(12th Session of Fifteenth Lok Sabha and the 227th Session of the Rajya Sabha)
which was to commence on Thursday, the 22nd of November, 2012. This bill was
introduced for the first time on December 29, 2011 by the Minister of Home
Affairs. The Bill was referred to the Standing Committee on Home Affairs
on January 13, 2012.
This
is the 3rd Amendment to the Unlawful Activities act 1967[1]
since 2004, all the amendment to this act have been passed very quietly without much debate either
inside the parliament or outside the parliament. Though the amendment is going
to impact strongly on the liberties of people no debate was raised about these
issues, and the serious threat that these
amendments will pose to civil liberties is not yet known
to the larger public. Ever since the
2004 amendments, the law has gradually
and impreceptibly clothing itself in more and more layers of impunity.
.
The bill has the intention to enlarge
the scope of punishment for raising funds:
·
Under the original bill, if a person
raises or provides funds, knowing that such funds are likely to be used to
commit a terrorist act, he shall be punishable with imprisonment of not less
than five years and a fine.
·
Under the Bill, raising funds “likely”
to be used (in full or in part) to commit a terrorist act or for the benefit of
terrorists shall be punishable irrespective of whether the funds have been
raised from legitimate or illegitimate sources.
·
The Bill clarifies that raising
funds shall include production or circulation of counterfeit Indian currency.
It also states that ‘participating, organising or directing’ fund raising
activities shall constitute an offence.
·
The Bill inserts new sections to
include offences by companies, societies or trusts. Every person who, at the
time of the offence, was responsible for the conduct of the business shall be
punishable with imprisonment for seven or more years and a fine between five to
ten crore rupees.
·
The Bill confers additional powers
upon the court to provide for attachment or forfeiture of:
·
Property equivalent to the
counterfeit Indian currency involved in the offence.
·
Property equivalent to the value of
the proceeds of terrorism involved in the offence.
·
All or any of the property of an
accused, based on evidence produced before the court, in cases where the trial
cannot be concluded.
In
order to achieve the goal mentioned in the above statement of object the act
has introduced the definition of person in Section 2(eb) as fallows “person”
includes,—
(i)
an individual,
(ii)
a Hindu undivided family,"
(iii)
a company,
(iv) a firm,
(v)
an association of persons or a body of individuals, whether incorporated or
not,
(vi)
every artificial juridical person, not falling within any of the preceding
sub-clauses, and
(vii)
any agency, office or branch owned or controlled by any person falling within
any of the preceding sub-clauses;
What
is interesting is the person now include the firm, association of persons like
trust, society and so on…
It
is interesting to see the forgoing amendment proposed specially section “17 of
the act which reads as “Whoever, in India or in a foreign country, directly or
indirectly, raises or collects funds, whether from a legitimate or illegitimate
source,
from any person or persons or attempts to provide to, or raises or collects
funds for any person or persons, “knowing that such funds are likely to be
used”, in full or in part by such person or persons or by a terrorist
organization or by a terrorist gang or by an individual terrorist to commit a
terrorist act, notwithstanding whether such funds were actually used or not for
commission of such act, shall be punishable with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment for
life, and shall also be liable to fine.
Explanation,- for the purpose of
this section,-
(a)…
(b)….
(c) raising or collecting or
providing funds, in any manner for the benefit of, or, to an individual
terrorist, terrorist gang or terrorist organization for the purpose not
specifically covered under section 15 shall also be construed as an offence”.
The
word used ‘whether from a legitimate or illegitimate source’ and ‘Knowing
that such funds are likely to be used[2]’
add an additional level danger , simply because these
phrases ‘legitimate or illegitimate’ or just ‘likely to be used’ basically provide unlimited scope to police to
repress anyone and everyone who is raising the voice against the state. .
It
is also important to read the above mentioned amendments along with the
definition given in Section 2(eb) and inducing ‘individual’ and there by
extending the scope of the declared terrorist organization to any individual
which adds another level of impunity to this law.
Documented
cases show that the police have booked cases against people under the UAPA, in order
to just harass them and also to obtain the police custody beyond 15 days and
judicial custody beyond 90 days and up to 180 days without trail, prescribed in
the criminal procedure code[3].
We have also seen civil society organization are harassed by invoking the provisions of F.C.R.A. to the
Human rights organizations including the Amnesty international and their by
curbing and insure that they do not raise their voice in public against any atrocity committed by the state or its
instrumentalities.
Question
also arise to the extent that, ‘what will happen if funds are raised to provide legal assistance and other needs to a person who is accused of terrorist activities, and their
family? Do they stop earning money? Do
they stop seeing him in the prison? Do they stop contacting an advocate to defend him? Do they stop paying
the fee for an advocate to defend such person? Are we trying to say he/she will
be barred from engaging an advocate to defend his/her case in the way he/she
wanted? All these question arise, since raising funds is an offense under the
act, and providing legal assistance is essential for a fair
trial
OFFENCE BY COMPANY.
The
section 22 A which is proposed under this amendment bill says as folows- :
"‘22A. (1) Where an offence under this Act has been committed by a
company, every person (including promoters of the company) who, at the time the
offence was committed, was in charge of, and was responsible to, the company
for the conduct of the business of the company, as well as the company, shall
be deemed to be guilty of the offence and shall be liable to be proceeded
against and punished accordingly:"
"22B.
(1) Where an offence under this Act has been committed by a society or trust,
every person (including the promoter of society or settler of the trust) who at
the time the offence was committed was in charge of, and was responsible to,
the society or trust for the conduct of the business of the society or the
trust, as well as the society or trust, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against and punished accordingly:
"
It
seems to be the direct target to the human rights organization who talk about
the misuse of natural resources by multinational company and number of small scale
industry where ordinary people’s life id depends on to move out and make way to
big and multinational company to have a highway to natural resources available
in the forest and other places.
Punishment before trial
Section
33 (5) “Where any person is accused of an offence
under Chapter IV or Chapter VI, it shall be open to the court to pass an order
that all or any of the property, movable or immovable or both, belonging to him
shall, where the trial under the Act cannot be concluded on account of the
death of the accused or being declared a proclaimed offender or for
any other reason, be confiscated on the basis of material evidence produced
before the court.”
Normally
the criminal prosecution of a person sees as soon as the person died, and this provision talks about the arrest of the person
and attachment of the property before he is proven guilty thereby restricting his ability to defend himself
before the court of law. Neither is he is capable of defending or his family is
capable using or fund raising to defend him in court of law hence he/she is
proven guilty before the trail itself thereby
violating the basic human rights granted under the constitution. The law in
complete defiance of the basic principles of criminal law seeks to punish those
who are innocent including family members by providing for attachment of
property after the death of the accused! This is nothing but arbitrariness disguised
as law.
------------
JBN
JBN
Thank you for drawing attention to the important details of the latest proposed UAPA amendments. It was both noticed and discussed at the recent PUCL national convention, in that it poses a direct threat to unregistered organisations such as ours and also continues, as you point out, a process of shrinking
ReplyDeletecivil liberties space in the nation.