The Article is co-authored by Damanjit Kaur & Shubham Sharma, Founding Partners D & S Law Chambers.
Legislative Intent – A beacon amidst all the chaos.
According to Salmond the duty of the judicature is to discover and to act upon the true intention of the legislature under the Maxim, ‘sententia legis’ or mens.
The essence of any law lies in the spirit, not in its letter, but letters are the only way in which intentions are expressed. When there is possibility of one or more interpretation of statute, Courts have to adopt that interpretation which reflects the ‘true intention of the legislature’. The intention of the legislature has two aspects:-
- “Meaning’’: That which tell what the words mean.
- “Purpose and Object”: That which includes purpose and object of enacting the statute.
In Poppatlal Shah v. State of Madras reported in AIR 1953 SC 274, the Hon’ble Supreme Court held that, “It is settled rule of construction that to ascertain the legislative intent all the constituent parts of a statute are to be taken together and each word, phrase and sentence is to be considered in the light of the general purpose and object of the Act itself.”
The Hon’ble Apex Court in Nathi Devi v. Radha Devi Gupta reported in AIR 2005 SC 648 held that, the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction, which attributes redundancy to the legislature, will not be accepted except for compelling reasons such as obvious drafting errors.
UAPA Act, 1967 & Legislative Intent behind it-
The Unlawful Activities (Prevention) Act, 1967, (hereinafter known as “UAPA, Act”) was first passed in 1967 on the recommendation of the National Integration Council, after being tabled and withdrawn twice. The law came up in the backdrop of the 1962 China and 1965 Pakistan wars. UAPA, Act enabled the government to impose ‘reasonable restrictions’ on the fundamental right to association. The executive could declare any organization as unlawful and designate and criminalize what it deemed as ‘unlawful activities’.
The UAPA was amended in 2004 and 2008 under the United Progressive Alliance (UPA) regime, to incorporate provisions from the earlier Prevention of Terrorism Act (POTA) and Terrorist and Disruptive Activities (Prevention) Act (TADA). The 2004 amendment defined terrorism act as a crime and granted powers to the Central Government to declare organizations as “terrorist” and impose a ban against them. Section 2(o), which defines unlawful activity under the 2004 amendment, is marked with great ambivalence, it covers spoken and written words, along with any visual representation “which causes or is intended to cause disaffection against India”. This procedurally vests the government with the power to penalize any dissenting view, belief or person, which threatens the ruling dispensation. These amendments also gave the police enhanced powers of interrogation. The law saw further amendments in 2012 and more recently in August 2019.
The amended UAPA makes a shift from targeting organizations to designating individuals as terrorists. This amendment is especially significant, as an individual unlike an organization, possesses constitutionally guaranteed fundamental rights of life and liberty.
Until 2019, the police needed to establish that those arrested in UAPA cases were members of banned organizations to secure a conviction in a court of law. But an amendment made in July that year has enabled the government to designate any individual as a “terrorist”, bypassing the need to establish membership or association with banned groups.
Conflict of Intents-
The conflict between the legislative intent of the law-makers behind the UAPA Act which was to deal with matters of profound impact on the 'Defence of India', and the intention of the Central Govt. who is labeling every person alleged of committing a crime affecting the law and order of the State has been heightened with the arrest of hundreds of journalists and activists thereby criminalizing dissent.
Recently while hearing the Bail Petitions of Natasha Narwal, Devanagna Kalita and Asif Tanha, accused in the Northeast Delhi riots case, the Hon’ble Division Bench of the High Court of Delhi laid down some important principles upon the legislative intent behind Sections 15, 17 & 18 of the UAPA, Act under which the three accused have been booked. While Section 15 engrafts the offence of 'terrorist act', Section 17 lays down the punishment for raising funds for committing a terrorist act and Section 18 engrafts the offence of 'punishment for conspiracy etc. to commit a terrorist act or any act preparatory to commit a terrorist act'. As a law that deals with terrorism, the UAPA, Act has a stringent provision that bars the courts from awarding bail if, from a perusal of the case diary or the charge-sheet, there are reasonable grounds to believe that the accusations against a person is prima facie true.
Relying on the judgment of the Supreme Court in the case of PUCL v Union of India, Writ Petition (Civil) 389 of 2002, the Hon’ble Division Bench sought to distinguish between "usual" law and other problems in any state and a "terrorist act", and reproduced observations from the PUCL judgment to the effect that, ... Terrorist acts are meant to destabilize the nation bychallenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character.
Quoting the judgment of the Supreme Court in the case of Sanjay Dutt, the Hon’ble Division Bench further noted that UAPA, Act is a law with serious penal consequences and reiterated that, "when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute "are not roped in by stretching the law".
The intent and purport of the Parliament in enacting the UAPA, Act and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the 'Defence of India'. In this regard, the Hon’ble Delhi High Court traced the source of legislative power for the Parliament to enact UAPA to entry 93 of List 1, which deals with 'Defence of India'. UAPA, Act must be invoked only with respect to acts having a bearing on the 'defence of India' and not against ordinary acts which can be dealt under normal penal laws. Highlighting that law and order fall under List II of the Constitution, the Hon’ble Division Bench held that, "It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution.
The part of the High Court order, where it was observed that, ordinary crimes affecting law and order or public order cannot be tackled using UAPA, Act seems to have frustrated the Centre who seems anxious in suppressing dissent as the Delhi Police, which is under the control of the Union Home Ministry, immediately filed an appeal before the Hon’ble Supreme Court. The Hon’ble Supreme Court observed that the High Court Orders shall not be used as precedent in any proceedings till the next hearing on July 19. The Supreme Court, however, did not stay the bail of the three activists.
Conclusion-
The government has time and again used draconian laws such as sedition and criminal defamation laws to silence dissent. These laws are vaguely worded and overly broad and have been used as political tools against critics showing a movement towards “thought-crimes.” The Center in realizing the purpose of this Act has succeeded in eroding human rights.
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