Last month, amendments to the Unlawful Activities (Prevention) Act (“UAPA”), India’s signature antiterrorism legislation, allowing the Central government to designate individuals as “terrorists”, caused a furore.
Critics warned that vesting such sweeping powers in the hands of the political executive would prove to be a recipe for abuse, and for political and social persecution. In response, it was argued that the UAPA provided for a system of checks and balances which would ensure that governmental abuse could be swiftly reviewed and rectified.
What the UAPA requires
To what extent is this argument well-founded? A look at how the UAPA functions presently suggests that the defenders of the law are too optimistic in their faith in “institutional correctives”. Before the 2019 amendments, the UAPA could be used to ban associations and not individuals. To this end, the UAPA required, and still requires that the ban must clearly set out the grounds on which the government has arrived at its opinion; and it may then be contested by the banned association before a Tribunal, consisting of a sitting High Court judge. As a number of judgments have held, the task of a UAPA Tribunal is to carefully scrutinize the decision of the government, keeping in mind the fact that banning an organization or a group infringes the crucial fundamental freedoms of speech and association.
A close reading of UAPA Tribunal orders makes it clear, however, that the requirement of judicial scrutiny is little more than a parchment barrier. 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. And this is made starkly evident by a recent UAPA Tribunal Order (issued on August 23, 2019) confirming the government’s ban on the Jamaat-e-Islami, Jammu and Kashmir (“JeI, J&K”).
Sealed covers and evidence
The government’s ban on the JeI, J&K was based on its opinion that the association was “supporting extremism and militancy”, “indulging in anti national and subversive activities”, and activities to “disrupt the territorial integrity of the nation”. In support of this opinion, the government said that there existed a large number of First Information Reports (“FIRs”) against various members of the association. Among other things, the JeI, J&K responded that for almost all of the FIRs in question, the people accused had nothing to do with the association. This, it was argued, could be proven by looking at the association’s membership register, which had been seized by the government.
One would think that such a case can be resolved straightforwardly: had the government managed to prove that there existed sufficient evidence of wrongdoing against members of the JeI, J&K, that would justify banning the organization altogether. It is here, however, that things began to get murky because the government then fell back on the increasingly convenient “sealed cover jurisprudence”, submitting material that it claimed was too sensitive to be disclosed. Notably, the evidence was not disclosed even to the association and its lawyers, who were contesting the ban.
Now, it would appear to be a very basic principle of justice that if an association is to be banned for unlawful activities, then the material on the basis of which that ban is justified is put to the association so that it has a chance to defend itself. To take a decision on the legality of a ban by looking at secret material that is withheld even from the association itself is exactly akin to condemning a man unheard. It is kangaroo-court style justice, which has no place in a modern democracy. However, this is exactly what the Tribunal did.
Justice Chander Shekhar observed that he had “opened the sealed covers and carefully examined each and every document”, and that it was convinced that these were “credible documents.” To this day, neither the association nor anyone reading the Tribunal’s opinion has any way of knowing what the evidence was. In essence, therefore: the fundamental freedoms of speech and association have been violated on the basis of secret evidence passed from the government to the Tribunal; an association numbering in at least the thousands has been shut down for five years, and all its members made putatively unlawful, potentially criminal without even being told why.
Matters, however, did not end there. The testimony of a senior and former office bearer of the JeI, J&K about the association’s efforts to distance itself from “unlawful activities”, “extremism”, and “terrorism” went unrebutted. More importantly, as the JeI, J&K argued, a look at its membership register would make it clear that its members had nothing to do with criminal activities. The problem, however, was that its membership register had been seized by the government. Consequently, the JeI, J&K made a rather common-sense argument: let the government produce the membership register, since it was in its possession.
Lions under the throne
The government, however, refused to do so, and instead submitted even this piece of evidence in a sealed cover. And the Justice Chander Shekhar’s response to this was truly Orwellian: he observed that “the respondent Association has not led any evidence to substantiate their defence that their office-bearers or members are not involved in the kind of activities alleged against them”. In short, therefore, the Tribunal wanted the association to prove that their members were not committing illegal activities, while the main source of evidence that the association would rely upon to prove exactly that, was in the hands of the government — and the association was not allowed to rely on it.
If, therefore, we take a step back and look at the Tribunal’s opinion, two aspects stand out starkly. First, a five-year ban upon an association — going to the very heart of the freedom of speech and association, potentially making all persons associated with it criminal — was upheld by a judicial forum on the basis of secret evidence that the association had neither the chance to see, nor to rebut.
And second, the most valuable piece of evidence that the association had to defend itself was seized from it by the very government that had banned it; and not only did the Tribunal wink at this, but then used the absence of that piece of evidence against the association that it had been seized from, and in favour of the government that had seized it.
Throughout its opinion, the Tribunal made multiple references to how the UAPA allows for departures from the “strict rules of evidence”, in order to serve larger goals. And this, indeed, is the problem: these “departures” have been made boundless, and boundlessly manipulable to the extent that they have swallowed up the most basic rules of procedural justice and fairness. What we effectively have now, thanks to the interpretation of Tribunals, is this situation: on the one hand, every leeway is provided to the government, loopholes have been created where non existed, and every procedural and evidentiary standard diluted, while on the other, associations (comprising Indian citizens) are held to impossible standards in order to disprove the case against them.
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 legitimize and enable governmental overreach, rather then 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”.
An exchange in 1964 between U.S. diplomat Chester Bowles and Triloki Nath Kaul, India’s then Ambassador to Moscow, offers a fascinating insight into contemporary geopolitics. While discussing South East Asia, Bowles said, “it would be a good thing if India could try to bring the Soviet and American points of view closer… India’s friendship with both could act as a sort of bridge between them.” He “hoped that it would be possible for [the] USA and USSR, with the help of India, to come to some kind of understanding about preventing Chinese expansionism and infiltration in South East Asia.” Kaul replied, “India would be glad to bring the U.S. and Soviet points of view closer as far as lay within our ability. In fact this was our present policy.” This response reflected India’s then geostrategy to position itself as an area of agreement between the superpowers.
As Kaul’s cable in September 1965 to Indira Gandhi subsequently explained: “the interests of America, USSR and India, have a common feature of being aimed at the prevention of Chinese expansion in this area. This provides an opportunity for India to reap the maximum possible advantage from both sides and strengthen herself for the future.”
History, however, followed a different course. As the 1960s unfolded, the Sino-Soviet ideological struggle culminated in an ugly spat in the Communist world. Ironically, both New Delhi and Washington perceived that trend differently and with contrasting ends in mind.
A multipolar world
For Anglo-American policymakers, a long cherished dream of isolating Russia and pulling China back into their orbit became a reality. For India, the spectre of an unfriendly China being checked through a shared understanding with Washington and Moscow fell by the way side, and New Delhi was compelled to imagine new approaches to safeguard its interests and security. By 1969, the bipolar system had cracked open into a multipolar world. The U.S. and China were on the cusp of a rapprochement while New Delhi and Moscow had established strategic understanding at the highest level to respond to this disconcerting global re-alignment. December 1971 reaffirmed the new multipolar world with the Soviet Navy entering the Indian Ocean to stymie the Anglo-American attempt to disrupt India’s military operations during the liberation of Bangladesh. That seminal period laid the foundation, as External Affairs Minister S. Jaishankar alluded to in Moscow last week, for a four-decade relationship that withstood further disruptions in international politics, including the end of the first Cold War in 1989 and the disappearance of the Soviet Union in 1991.
If we fast forward to recent years, historical patterns continue to have a robust afterlife. The U.S.-Russia-China triangle still contains complex and counter-intuitive dynamics that often get obscured or distorted in India’s strategic debates.
Despite the Donald Trump administration’s posturing on China and its attempt to redefine the terms of that relationship, we do not yet see a credible and sustainable strategy to respond to China’s rise. And growing Sino-Russian relations have not led to any fundamental reassessment in the U.S.’s thinking. In recent years, whether on the U.S.’s attempts to pressure North Korea or security in Northeast Asia or conflicts in the Middle East we have abundant evidence of Moscow and Beijing providing psychological and diplomatic support to each other.
Even potentially contentious issues such as their Eurasian integration visions, that is, Russia’s Eurasian Economic Union and China’s Belt and Road initiative, have been projected in a spirit of co-existence and mutual respect, often disguising deeper questions of power and ambition. It is not that Moscow is oblivious to Beijing potentially squeezing Russian influence from parts of Eurasia but that Moscow’s calculus is also shaped by the strategic necessity of a mutually beneficial partnership with Beijing in order to counter-balance a rigid and unfriendly West.
The Russia-China relationship is presently guided by, as Dmitri Trenin suggests, the principle of “never being against each other, but not necessarily always with each other”. This formula “puts a premium on a solid partnership between Moscow and Beijing where their interests meet, eschews conflicts where they don’t, and allows a lot of flexibility where interests overlap only partially”. For instance, we saw this nimbleness at the UN Security Council when Russia and China were on opposite sides in reacting to India’s new Kashmir policy.
The Asia pivot
When mainstream American policymakers look at the big power triangle of the U.S.-China-Russia, their unconcealed prejudice and geostrategic preferences are apparent to all. The door is still very much open to China whom the West would like to wean away from Russia to arrest America’s deteriorating global position. New Delhi, of course, like in the 1960s, would prefer the opposite outcome: to wean Russia away from China or more realistically provide Russia with more options in its Asia pivot. Mr. Jaishankar’s remarks at the prestigious Valdai Club in Moscow made such a case for the next chapter in India-Russia ties. In essence, he asserted that Asia’s multipolar age has arrived; that the Indo-Pacific is not restricted to one conception: he distinguished India’s independent approach that includes stable ties with Beijing from the U.S. concept that some interpret as “Chinese containment on the cheap”; and most importantly, Russia being a Pacific power with interests in the Indian Ocean should join the debate.
In substance and without ruffling Beijing’s feathers, Russia is already shaping the geopolitics of the Indo-Pacific. It has managed the rare feat of deep cooperation with rival parties in the South China Sea disputes.
As Alexander Korolev, a scholar at the University of New South Wales, notes, the “Russia-Vietnam partnership should not be underestimated, because it has been growing despite and independently of Russia-China relations”. Indeed, once Russia’s advanced military and naval modernization assistance towards Indo-Pacific states such as India, Vietnam and Indonesia, along with Russia’s own underrated Pacific Fleet whose area of responsibility extends to the Persian Gulf is accounted for, Moscow is already a player in Eurasia’s Rimland areas.
Having been reassured that India is not bandwagoning with the U.S. and genuinely believes in open and inclusive security and order building ideas, Russia could now begin the process of imagining a role in the Indo-Pacific that brings its vast diplomatic experience and strategic heft into the open.