India's primary anti-terror legislation, the Unlawful Activities Prevention Act 1967 ["UAPA"] continues to make headlines as a legislation reportedly used to stifle dissent and legitimate criticism of India's central government, even as the world grapples with the Coronavirus. This has, justifiably, prompted a rise in the conversations around the UAPA.
A vast majority of these conversations about the UAPA focus on the provisions concerned with alleged "terrorist acts". But, originally, the UAPA was never designed to punish terrorism. Instead, it set out to create a new crime, of engaging in "Unlawful Activity". Section 2(f) of the UAPA as it originally stood [Section 2(o) today] defines this crime as follows:
"Unlawful activity", in relation to an individual or association, means any action ...
(i) which is intended, or otherwise supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory from the Union, or which incites any individual or group of individuals to bring about such cession or secession;
(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; [Emphasis supplied]
This is, by any stretch of imagination, a broadly worded definition. It is, I would argue, so broad as to take within its fold legitimate discussion and / or criticism of government policy, especially in connection with issues arising in border territories. This brings the definition of "Unlawful Activity" within the teeth of the constitutional guarantee to citizen's of a freedom of speech and expression. In a representative democracy where debates over government policy are constitutionally protected, how can a statute create crimes out of criticism?
The Joint Committee and the Attorney General
The seemingly anachronistic situation created by the UAPA generated heated debate within Parliament at the time. This was in no small means buttressed by the rise in power of regional parties, whose earlier espousal of secessionist agendas had in fact contributed to the government bringing in the UAPA. When the UAPA Bill was sent for examination to a Joint Parliamentary Committee [The report is available on the e-parliament library website], many members voiced their concern about the criminalisation of speech under this new law and the erosion of fundamental rights.
To address any questions about the supposed unconstitutionality of the law, the government agreed for the Attorney General of the day, Mr. C.K. Daphtary, to depose as a witness before the Committee. Daphtary's endorsement of the UAPA before the Joint Committee was to become the cornerstone of the government's approach during the parliamentary debates over the UAPA. Any comment or suggestion about this law being unconstitutional would be swatted aside by invoking the Attorney General's by Home Minister Y.B. Chavan.
This, naturally, demands that we take a very close look at just what the Attorney General did and did not say when he appeared before the Committee as a witness on October 16, 1967. Three specific exchanges between Daphtary and the Committee, really stand out.
First, in his introductory remarks, Daphtary notes how he was "not called upon to express any opinion except the legal opinion one", and this opinion was that the law is "going as far as one can go." "These are drastic powers", the Attorney General acknowledged, and later on also made it clear that we must always assume that "those who are going to exercise those powers will do so honestly and properly. ... Whether that will be so or not, one cannot say." Later on, when B. Shankaranand noted that according to Daphtary the Bill is perfectly constitutional, the Attorney General quickly retorted: "Not 'perfectly' constitutional; I say, it is constitutional.
Second, and perhaps most engaging, was his reply to queries by P. Ramamurti. One specific exchange takes place as Ramamurti questions Daphtary's support of the Bill by referring to the Supreme Court's old decision in V.G. Row. Daphtary responds:
The outlook on fundamental rights and what is reasonable or proper protection has, as you are sure aware, gone through a series of changes in that particular court. There was a time in the beginning when the fundamental rights were quite firm. Then came a period when they were eroded and gradually Article 14 almost ceased to exist. Then again came a period when the fundamental rights were put up firmly and everything was properly tested. Perhaps we are again coming to a period when they will not be looked at as seriously as they used to be. ... Therefore the dicta of judgments do not carry us anywhere.
Third, and finally, at the end of this exchange itself, Daphtary expresses his lack of personal knowledge about the situation in various parts of the country that might justify the "drastic measures" of the law. Thus, he says, "I cannot go further than expressing my personal opinion." And this he does: "I think it is regrettable that the State has reached such a position that it is necessary to pass this legislation."
A "Ministry of Astrology" for Constitutional Questions
At one level, I am still astonished by the level of candour on display by Daphtary in his deposition before the Joint Committee. Reading his replies, it becomes evident that his support for the UAPA was far from uncritical. In fact, it is almost tragic that the Home Minister somehow managed to use this deposition as the mainstay of his defence of any constitutional questions raised about the UAPA. After all, can it really be said that Daphtary defended the law? Daphtary merely said that a Court willing to look askance at fundamental rights questions might let the issues slide, which is not really a defence of any sort.
As P. Ramamurti acerbically noted in his Minute of Dissent appended to the Joint Committee's Report, "What basis there is for this astrological forecast of the behaviour of the Supreme Court, he did not tell the Committee." If Parliament were to forsake the position of the law as it stood while considering the legality of any statutes and instead go by political forecasts on constitutional questions, Ramamurti notes, then "there must be a Ministry of Astrology in Government."
As history would have it, questions about the constitutionality of the UAPA provisions did not reach the Supreme Court once the law was passed in December of 1967, and so the astrological predictions of the Attorney General never got a chance to be tested.
[P.S.: Of course, if the conversations were to happen today, then the so-called "Ministry of Astrology" would also have to contend with an additional prediction besides that of a strong court or weak court taking up the case — that of an evasive one keeping it pending forever.]