Monday, December 3, 2012

The Act Which makes an Impact :

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.
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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.
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JBN

 



[1]
                        [1] The Unlawful Activities (prevention) Amendment act, 2004, 2008, and 2012, 
[2]
                        [2] Though the ‘knowing that such funds are likely to be used’ was amended in the year 2008 it self.
[3]
                        [3] Section 167 of Code of Criminal Procedure