Ultra vires regulations
Special Arrangement
Freedom of speech: Sheetal Sathe, lead singer of Kabir Kala Manch.
Mere association with a banned outfit or studying its literature is
not tantamount to being a terrorist, says a recent Bombay High Court
judgement
The definition of a ‘terrorist’ and ‘terrorism’ has been
a major topic of continuous debate in India especially in recent
months. Can a person collecting and studying literature of a banned
party be defined as a terrorist? Can a song with revolutionary lyrics —
despising social inequality — be called an act of terror? Or is it that
quoting Mao Tse Tung or Karl Marx in a street theatre be defined as a
terrorist ploy?
A recent judgement by the Bombay
High Court has stated that such acts are not terrorism. Even the judge
went on to say, “... the expression of views to the effect that a change
in the social order can be brought about only by a revolution would not
amount to any offence.”
The judgement — delivered
while granting bail to four members of Kabir Kala Manch (KKM), a
Pune-based cultural group of Dalit protest singers — has been lauded by
social activists and lawyers in Chhattisgarh and other States where a
large number of tribals are languishing in jail allegedly for
participating in Maoist rallies or providing food to the rebels. The KKM
members were arrested and booked under sections of the Indian Penal
Code (IPC) and the Unlawful Activities (Prevention) Act (UAPA) allegedly
for being members of the banned CPI-Maoist.
The
judgement by Justice Abhay Thipsey has specifically questioned Section
20 of UAPA which penalises members of ‘terrorist gangs or organisations
involved in terrorist acts’ with imprisonment for life. Quoting
extensively from several verdicts of the Indian and U.S. Supreme Courts,
the judgement says that Section 20 of UAPA challenges Article 19 of the
Indian Constitution that guarantees freedom of speech, right to form
unions and assemble peacefully.
According to the
judge, KKM members were arrested for practising rights guaranteed by
Article 19. Moreover, the same section of IPC, 120B, which was used
against Afzal Guru for allegedly abetting a criminal conspiracy, was
also used against KKM members for associating with a banned outfit.
Deconstructing
various sections of IPC and UAPA used to frame charges against KKM
members, Justice Thipsey said, “Mere membership of a banned organisation
will not incriminate a person unless he resorts to violence or incites
people to violence,” quoting, inter alia, from a Supreme Court judgement.
Justice Thipsey added if “passive membership” of a banned party is criminally liable, then parts of UAPA may become ultra vires.
“It is very clear from the observations made by the Supreme Court that
if Section 20 were to be interpreted in that manner (passive membership
as active terrorism), it would at once be considered as violative of the
provisions of Article 19 of the Constitution of India, and would be
struck down as ultra vires,” page 37 of the judgement stated.
Justice
Thipsey has also expressed “surprise” that KKM members were arrested
for organising “street plays wherein social issues such as the
eradication of corruption, social inequality, widening gap between the
rich and the poor, the exploitation of poor, etc.” are addressed. “There
is nothing wrong in raising these social issues,” he said.
“The
same views (regarding social inequality) are expressed by several
national and eminent leaders and the expression for these views cannot
brand a person as a member of CPI-Maoist. On the contrary, such a
reasoning would indicate that these issues, which are real and
important, are not addressed to by anyone else, except the CPI-Maoist,
which would mean that the other parties or social organisations are
indifferent to these problems faced by the society,” the judgement said.
Advocating the teachings of Karl Marx or “having some faith in the
Maoist philosophy” is also not criminally liable, said the judge. The
judgement has also emphasised that possessing of banned literature of an
outlawed political party (CPI-Maoist in this case) is not an offence.
In
large parts of India, especially in States where tribals are in jail
for being alleged sympathisers of the CPI-Maoist, the judgement has
acted as a shot in the arm of the activists and the lawyers. “This is a
landmark judgement in context of Chhattisgarh, as there are more than
2,000 tribals languishing in various jails. However, I am not sure if
this verdict will be taken into cognisance while passing a judgement,”
said K.K. Dubey, who represents several under-trial tribals in south
Chhattisgarh. Activists in Andhra Pradesh, Odisha and Jharkhand have
also welcomed Justice Thipsey’s judgement.
