TOPIC : A CRITICAL EXAMINATION OF THE BAN ON THE POPULAR FRONT OF INDIA IN THE LIGHT OF NATIONAL SECURITY

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THE CONTEXT: In September 2022, the Ministry of Home Affairs (MHA) declared the Popular Front of India (PFI) and its front organisations as an “unlawful association” under the Unlawful Activities (Prevention) Act (UAPA) and banned the organisation and eight other organisations for five years. Against this backdrop, we analyse the procedure of declaring any association or organisation as unlawful, its impact on constitutional freedoms and the effectiveness of banning.

ABOUT POPULAR FRONT OF INDIA (PFI)

The PFI projects itself as an organisation that fights for the rights of minorities, Dalits, and marginalised communities. It was created in 2007 through the merger of three organisations: The National Democratic Front in Kerala; The Karnataka Forum for Dignity and The Manitha Needhi Pasarai in Tamil Nadu. In 2009, a political outfit named Social Democratic Party of India (SDPI) evolved out of the PFI, with the stated goal of “advancement and uniform development of all the citizenry including Muslims, Dalits, Backward Classes and Adivasis” and to “share power fairly among all the citizens”.

Instances when PFI was at odds with the law:

• The court convicted the association members for the attack on a college professor in Kerala in 2010 for the alleged derogatory questions asked by the professor about the Prophet Muhammad.
• More recently, members from the group were also linked to the beheading of a Hindu man in the western state of Rajasthan in June 2022.
• In Karnataka, the government has often cited murders of workers of right-wing groups by alleged PFI cadre to seek a ban on the PFI. However, in more than 310 cases registered against the PFI in Karnataka since 2007, there have been convictions in only five.
• In Feb 2018, the then state government in Jharkhand banned PFI alleging that some of its members were internally influenced by ISIS. The state government imposed the ban under Section 16 of the Criminal Law Amendment Act 1908. But in August 2018, the Jharkhand High Court revoked the ban, noting that the State had not followed due procedure before announcing the ban.

REASONS CITED BY THE CENTRE FOR THE CURRENT BAN

The Union government has listed reasons to ban the group, such as:

1. The PFI and its cadre repeatedly engage in violent and subversive acts, including involvement in several criminal and terror cases, disrespect towards constitutional authority, receiving funds from abroad through hawala and using them in suspicious ways, and posing a major threat to national security.
2. Having linkages with ISIS and the Jamat-ul-Mujahideen Bangladesh.
3. Not functioning according to its stated objectives, and its sources of funds were not supported by the financial profile of account holders; and
4. States of Uttar Pradesh, Karnataka, and Gujarat had recommended a ban on the PFI.

LEGAL PROVISIONS UNDER UAPA FOR DECLARING ANY ASSOCIATION AS UNLAWFUL

According to legal scholars, the declaration of an outfit/association as unlawful can be made in two ways under the UAPA:

1. Under section 3 of the UAPA: declaring the organisation “unlawful” via an official notification in The Gazette of India.
2. Under section 35 of the UAPA: by amending the act and adding the organization to a list of 42 terrorist organizations.

The PFI ban came under the first method, with the Ministry of Home Affairs issuing a notification declaring PFI unlawful in September 2022

• The ban extends to other associated bodies as well, including the Rehab India Foundation (RIF), Campus Front of India (CFI), All India Imams Council (AIIC), National Confederation of Human Rights Organization (NCHRO), National Women’s Front, Junior Front, Empower India Foundation and Rehab Foundation, Kerala.
• The political arm of the PFI, the Socialist Democratic Party of India (SPPI), has not been included in the list of banned outfits.

PROCESS OF BANNING AN ASSOCIATION/ORGANISATION

1. Before issuing a notification under Section 3 of the UAPA, the government analyses threat perception to peace in the country, secession activities, territorial safety, terrorism etc. The recommendations and complaints by a state government can also be considered based on FIRs filed or incidents in the state.
2. Section 3 also allows the government to implement an “immediate ban” on an organisation by issuing a Gazette notification and is also required to give reasons and allegations against the organisation and its members.
3. Within 30 days of the notification, the government has to set up a tribunal, headed by a sitting Judge of a High Court, to consider the evidence and allegations. The tribunal has the power to consider the evidence, hear the objections from the organisation or its members/supporters and then take a decision to confirm or deny the ban. The Tribunal has six months under the law to conduct proceedings and either accept or reject the proposed ban.
4. If the tribunal upholds the ban, the organisation can also move an appeal before the concerned High Court in case it can show “patent error” or “perversity” in the tribunal order and show that the tribunal ignored vital evidence.

POSSIBLE IMPACT OF DECLARING ANY ASSOCIATION AS UNLAWFUL UNDER UAPA

SECTION 7

• The Central government can identify people who are in possession of money that is used or handled for the purposes of the unlawful association and serve prohibitory orders on them to stop them from using, managing or handling any funds for the activities of the unlawful association.

SECTION 8

• The Centre can notify any properties it identifies as being used by or for unlawful associations and initiate action to prohibit gatherings or entry at the property.

SECTION 10

• Any person who attends the meetings of the PFI, contributes money to the outfit, or solicits contributions for the PFI, can face a prison sentence of up to two years under the UAPA.
  o This will include any members of the PFI, anyone campaigning for funds or even donating/contributing money to the PFI, or anyone assisting with the operations of the outfit.
  o Anyone organizing activities or events and those attending the said events could all face arrest and fines under this provision.
• Members of the PFI or anyone who voluntarily aids the PFI, who also owns a weapon, explosive, or means of mass destruction, and commits any act that causes significant loss to property or life, or grievous injury, can face a minimum of five years in prison, which can extend to life imprisonment, and a fine.
• NOTE: Anyone arrested before the notification was issued cannot be charged under these sections of the UAPA for involvement with unlawful associations; however, they can still be charged with terror activities.

SECTION 11

• Anyone who handles, transfers, or manages the funds of the organisation, including “moneys, securities or credits”, can face up to three years imprisonment and a fine. The Centre can also order recovery of the money/funds from the person.

SECTION 13

• Anyone who incites, aids, or abets the commission of unlawful activity can face imprisonment of up to seven years.
• It also provides for up to five years imprisonment for assisting in the commission of any unlawful activities.

EXAMPLES OF BANNED ORGANISATIONS IN INDIA

• As of October 2022, there are 42 organisations termed as terrorist organisations and are included in the first schedule of UAPA (1967), such as Babbar Khalsa International, Lashkar-E-Taiba, United National Liberation Front, Maoist Communist Centre (MCC), all its formations and Front Organisations etc. however there are over 15 organisations/associations termed as Unlawful Associations under Section 3 Of Unlawful Activities (Prevention) Act, 1967 such as Students Islamic Movement of India (SIMI), United Liberation Front of Asom (ULFA), All Tripura Tiger Force (ATTF) etc.

INTERPLAY BETWEEN THE FREEDOM OF ASSOCIATION AND NATIONAL SECURITY

• Article 19(1)(c) of the Constitution of India provides all citizens with the right to form associations, unions or co-operatives. It also includes the right to form political parties, societies, clubs, organisations etc. however, these rights are not absolute, and the state can impose reasonable restrictions on the exercise of this right on the grounds of sovereignty and integrity of the country, public order and morality only as mentioned under Article 19(4).
• Associations/Organisations play a significant part in determining the perception of an individual and persuading him to have a broader vision and a widened approach towards everything happening in society. The Constitution ensures that no citizen residing within the territorial jurisdiction of the country is deprived of this right granted under Art 19(1)(c). But at the same time, the citizens must ensure that in due course of the formation of a particular association as well as during the period of the membership, harmony, discipline, and order continues to persist in the society.
• The legislature also has powers to make laws for imposing reasonable restrictions; however, the provisions under UAPA are stringent and are prone to be misused by the government, so much so that it allows the government to declare unilaterally any association as unlawful. Such powers contradict constitutional schemes and more so in the context of national security. The opportunity for the association to present their side is given only when the decision is made by the government and the members can only contest that decision in the tribunal, which also goes against the philosophy of natural justice. However, in light of contemporary security challenges, such power given to the government under the UAPA becomes imperative.

WHETHER THE BAN ON ASSOCIATIONS UNDER UAPA IS AN EFFECTIVE METHOD TO ADDRESS THE ISSUE OF NATIONAL SECURITY

ARGUMENTS IN FAVOUR 

• The law has a legal mandate as it is enacted by the Parliament after deliberations and discussions and shows the wisdom of the Parliament that after intense discussion and deliberations it came to a conclusion that, banning an association can be an effective method to deal against unlawful associations.
• There are various examples in the past when the banning of an organisation has helped in curbing the antisocial and secessionist voices.
• Banning the association is not a knee-jerk reaction. The government has had multiple scrutinises and evaluations over a period of time and then reached the decision.
• The present case is not a one-off incident in the country. We have seen associations being banned in the past across the globe for various reasons, be it their political ideologies or religious inclinations.

COUNTER ARGUMENTS

• The banning of an association might not be of much utility against the challenges of radicalisation and national security as the party can reincarnate with a changed form or name. It has also been alleged that the members of the banned SIMI are the founding members of the PFI.
• Banning an association is superficial as it may not address the underlying issues such as lack of proper implementation of laws, administrative inefficiency, social dissonance among the community members etc.
• Various scholars have also pointed out that the assertive majoritarian politics have also led to the sprouting of such associations, which also garner social acceptance at times.

NEED FOR REFORMS IN THE PROCEDURES UNDER UAPA TO BAN AN ASSOCIATION

The UAPA is a stringent law and overrides the usual safeguards provided under the Indian Penal Code. Though the statute was brought in with an objective contrary to what we see today, the general perception of the UAPA is that over the years it has degenerated into a lethal weapon to quell dissent, and has been used by successive governments to legitimise sinister motives.
Powers extended to the government under UAPA are also very wide, as the government can unilaterally declare an organisation/association as unlawful without giving an opportunity to the members of the concerned organisation. There is a likelihood of misuse of this power.
The process of setting up a Tribunal and its functioning are also not transparent and it is perceived that its decisions lean towards favouring the government.
In light of the progressive jurisprudence and increasing democratisation of society, it is held that some of the provisions of UAPA are not conforming to the modern liberal democratic principles, and it is imperative to make reforms in the law to make it more relevant to contemporary times.

THE WAY FORWARD:

1. In contemporary times the threats to national security have multiplied and have also become more complex in the present era of cyber terrorism and narco-terrorism, which makes it imperative to have some extraordinary measures to deal against them and maintain the unity and integrity of the country.
2. India being a democratic country, makes constitutional provisions for the Fundamental Rights to every citizen, which are also promoted by the government. Still, such unilateral banning of the associations should also maintain the rights of the individuals and the organisation.
3. As jurists have pointed out, there is a need to review various provisions of UAPA, not only dealing with the provisions concerned with the associations but UAPA as a whole. As per the NCRB data, the conviction rate under the UAPA law is low (2.4 % is 2018, 1.7 % in 2019 and 6% in 2020), hence it is imperative for the government to use the law wisely and sparingly and/or needed reforms in the law shall be made to keep it relevant in contemporary times.
4. Banning the organisation may help the government in achieving the short-term objectives, but the ideology behind the organisation might stay alive for a longer time as they have roots in socio-economic issues; the more comprehensive and multi pronged approach of Winning Hearts and Minds (WHAM) shall be applied by the government to address these fundamental challenges of national security.
5. The constitutionality of the UAPA Law is sub judice, and given the nature of the challenge and past criticisms of the legislation, the apex court can read down some of the stringent provisions of the law, even if not scrapping it completely to make it more relevant and in consonance with the modern democratic ethos.

THE CONCLUSION: Although the government is well within its legal and moral mandate to ban the organisation as unlawful and achieve the objective of national security, law and order might not be the only issue underlying national security and dealing with a coercive force. It is essential for the government to maintain a balance between scaring and caring. Scaring or coercive action by the government might not always be the best approach for dealing with the issues. Along with the force of law, the government shall also use a benevolent approach to address the problems of national security and devise a multipronged strategy which cuts across the rule of law, welfare, development and good governance.

Mains Practice Questions:

1. The important criticism of UAPA is that it is antithetical to constitutional freedoms. Do you agree? Justify your view.
2. Critically analyse whether merely banning an organisation as “unlawful” will provide an effective firewall against national security challenges?
3. While the politico-legal action of banning and cracking down on a radical outfit is very much needed to curb violent activities, the solution to radicalism lies in investing at the social level. Analyse the statement.