Unlawful Association

From Justice Definitions Project

What is Unlawful Association

Section 2(p) of the Unlawful Activities Prevention Act 1967 defines "unlawful association" as any group that:

  • has the objective of engaging in unlawful activities, or encourages or helps others to engage in such activities, or whose members are involved in such activities; or[1]
  • has the objective of promoting activities punishable under sections 153A or 153B of the Indian Penal Code, or encourages or helps others to engage in such activities, or whose members are involved in such activities.[2]

Procedures under Unlawful Association

General Provisions

Chapter II of the Act addresses unlawful associations, with Section 3 outlining the procedures for declaring an association as unlawful.If the Central Government is of the view that an association is or has become unlawful, it may declare the association unlawful by issuing a notification in the Official Gazette[3]. The notification must specify the reasons for the declaration and any other details the Central Government deems necessary, and it is not required to disclose any information it considers against the public interest[4].

The notification will not take effect until the Tribunal confirms the declaration through an order under Section 4, and the order is published in the Official Gazette. However, if the government believes that urgent action is necessary, it can declare the association unlawful immediately, with written reasons provided. In this case, the notification will take effect from the date of publication in the Official Gazette, subject to any subsequent orders under Section 4[5].

In addition to being published in the Official Gazette, the notification must also appear in at least one daily newspaper circulating in the State where the association’s principal office, if any, is located. The notification must also be served to the association in a manner the Central Government deems appropriate, including one or more of the following methods:

  • posting a copy of the notification on a visible part of the association’s office[6];
  • serving a copy to the principal office-bearers, if possible[7];
  • announcing the notification by loudspeaker or drum in areas where the association operates[8];
  • or by any other method as prescribed[9].

To determine whether there is sufficient cause for declaring an unlawful association, the Central Government must refer the notification to the Tribunal within 30 days of its publication[10]. The Tribunal will issue a written notice to the affected association within 30 days from the service of the notice, asking why it should not be declared unlawful[11]. If a response is given, the Tribunal will conduct an inquiry after reviewing it. It may seek additional information from the Central Government or the association's representatives. After the inquiry, the Tribunal will decide whether sufficient cause exists to declare the association unlawful. The order confirming or canceling the notification will be issued within 6 months[12] and published in the Official Gazette[13]. The notification will remain in effect for a period of 5 years[14], and the Central Government can cancel it at any time[15].

The Central Government can take action if it believes that any person has custody of money, securities, or credits being used or intended for the unlawful association, after conducting an inquiry. The government can issue a written order prohibiting the person from handling or dealing with such funds in any way, including those that come into their custody after the order. This can only be done in accordance with written instructions from the government, and a copy of the order will be delivered to the person[16].

The government can authorize a gazetted officer to investigate the matter. The officer can enter the premises, inspect records, search for funds or securities, and ask questions about financial dealings suspected of being used for the unlawful association, with the prohibitory order serving as a warrant[17]. The order will be served in the same manner as a summons[18].

An appeal must be filed within 15 days of receiving the order, by applying to the District Judge in the relevant jurisdiction. The District Judge will decide whether the funds, securities, or credits are being used or intended for the unlawful association[19]. No information obtained during the investigation can be disclosed by the investigating officer without the consent of the Central Government[20].

The Central Government can also issue a notification to identify any place it believes is being used for the unlawful activities of an association[21]. Once the notification is issued, the District Magistrate or an authorized officer must prepare a list of all movable property found at the notified place, except for items such as clothing, cooking utensils, beds, tools, animals, and food, which are considered trivial[22].

The District Magistrate can issue orders to:

  • Prevent anyone from using items if they believe the items might be used for unlawful activities of the association[23].
  • Prohibit anyone who is not a resident from entering the place without permission, with certain exceptions[24]. If permission is granted, they must follow conduct rules set by the District Magistrate[25].

Any police officer of at least sub-inspector rank, or another authorized person, can search anyone entering or present in the notified place. However, women can only be searched by female officers[26]. If someone violates the order, they can be removed by an officer or another authorized person, in addition to facing any other legal action[27].

Anyone who disagrees with the notification or an order issued under sub-sections (3) or (4) can apply to the District Judge within 30 days. They may request the court to declare that the place was not used for unlawful purposes or to overturn the order. The court will consider arguments from both sides and make a decision[28].

Subject to any rules made under this Act, the Tribunal, while conducting an inquiry under Section 4(3), and the Court of the District Judge, when handling an application under Section 7(4) or Section 8(8), shall follow the procedure outlined in the Code of Civil Procedure, 1908, as much as possible. The decisions made by the Tribunal or the District Judge’s Court will be final[29].

Tribunal & Reference to tribunal

A tribunal called the "Unlawful Activities (Prevention) Tribunal" should be established by the Central Government by issuing a notification in the Official Gazette, appointing a single individual to preside over it. The appointee must be a Judge of a High Court[30].If a vacancy arises in the office of the Tribunal's presiding officer (other than due to temporary absence), the Central Government must appoint another person as per this section's provisions. Proceedings will resume from the stage at which the vacancy is filled[31].The necessary staff to perform the functions under the Act will be provided by the Central Government[32], and all expenses related to the Tribunal's operations will be covered by the Consolidated Fund of India[33].

The Tribunal has the authority to regulate its own procedures for carrying out its functions, including determining the locations for its sittings, subject to Section 9[34]. For conducting inquiries under this Act, the Tribunal has the same powers as a civil court under the Code of Civil Procedure, 1908, in matters such as:

  • summoning and enforcing the attendance of witnesses and examining them under oath[35];
  • ordering the discovery and production of documents or other material evidence[36];
  • accepting evidence presented through affidavits[37];
  • requisitioning public records from any court or office[38] and
  • issuing commissions for examining witnesses[39].

Proceedings before the Tribunal are considered judicial proceedings as defined under Sections 193 and 228 of the Indian Penal Code (IPC), and the Tribunal is regarded as a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure (CrPC)[40].

Offences & Penalties

When an association is declared unlawful, any person who remains a member of such an association[41], participates in its meetings[42], provides, receives, or solicits contributions for its purposes[43], or aids its activities in any manner[44]shall face imprisonment of up to two years and may also be fined. If the act causes death, any person who remains a member of the association, voluntarily acts to support or promote its objectives, and is in possession of unlicensed firearms, explosives, or other items capable of causing mass destruction, or commits acts that result in death, severe injury, or significant property damage, shall face death or life imprisonment along with a fine[45]. For other acts, imprisonment of at least five years, up to life imprisonment, and a fine will be imposed[46].

If a person who has been served with a prohibitory order regarding funds, securities, or credits deals with them in violation of the order, they can be punished with imprisonment of up to three years, a fine, or both. Additionally, the court may impose an extra fine equal to the value of the funds or securities involved in the violation[47]. Anyone who uses an item in violation of a prohibitory order can be punished with imprisonment of up to one year and a fine[48]. Additionally, anyone who knowingly enters or attempts to enter a notified place in violation of an order can face imprisonment of up to one year and a fine[49].

Any person who participates in or commits unlawful activities[50], or advocates, abets, advises, or incites such actions[51], shall be punished with imprisonment of up to seven years and a fine. Anyone assisting the unlawful activities of an association declared unlawful after the declaration has come into effect can face imprisonment of up to five years, a fine, or both[52]. This section does not apply to treaties, agreements, or negotiations authorized by the Government of India with other countries[53]. Regardless of the provisions of the Code of Criminal Procedure, offenses under this Act are deemed cognizable, allowing the police to take action without prior approval[54].

Judicial Precedents

V.G. Row v. State of Madras[55]

In September 1949, the Government of Madras declared the Peoples’ Education Society (PES) an unlawful association under the Criminal Law Amendment Act, 1908. The government alleged that PES supported the banned Communist Party in Madras, providing funding and engaging in propaganda on its behalf. It claimed that the PES aimed to disrupt the enforcement of law and order, posing a threat to public peace. V.G. Row, the Secretary of PES, challenged the validity of the 1908 Act, arguing that it violated his constitutional right to freedom of association. The Supreme Court found the Act unconstitutional, emphasizing that the right to form associations or unions is expansive and any restriction on it must be subject to judicial scrutiny. The Court held that granting executive authority unchecked power to restrict this right without judicial review undermines its reasonableness.

Arup Bhuyan v. State of Assam[56]

The Arup Bhuyan decision reversed the precedent set in State of Kerala v. Raneef by criminalizing passive membership in unlawful organizations, even without evidence of active participation or support. Earlier rulings had established the "active membership" requirement for applying Section 10(a)(i) of the UAPA, asserting that punishing passive membership contravenes fundamental principles of criminal law. The Raneef judgment had deemed Section 10(a)(i) of the UAPA unconstitutional, as it infringed upon free speech (Article 19(1)(a)) and freedom of association (Article 19(1)(c)), and it interpreted the provision to necessitate proof of active involvement. However, in Arup Bhuyan, the Court rejected reliance on American legal precedents used in Raneef, arguing that they were incompatible with Indian jurisprudence. The ruling upheld punishment for passive membership under the UAPA.

Related Legislations

UAPA

The Unlawful Activities (Prevention) Act, 1967 (UAPA), is a more comprehensive version of the Terrorist and Disruptive Activities (Prevention) Act (TADA), which lapsed in 1995, and the Prevention of Terrorism Act (POTA), which was repealed in 2004. The UAPA is currently the primary counter-terrorism legislation in India, aimed at curbing unlawful activities carried out by individuals and associations. Its primary objectives are twofold: first, to empower the Indian government and its agencies to maintain national security; and second, to fulfill India’s international obligations by addressing the transnational nature of terrorism and the rise of cyber terrorism, which has become a global threat. To support international treaties and conventions India has ratified, the UAPA introduces domestic legislation aligned with these global commitments.

This legislation, often criticized as "draconian" by its detractors, has undergone several amendments since its inception. The most recent and controversial amendment, the Unlawful Activities (Prevention) Amendment Act, 2019, was passed on August 8, 2019, despite significant opposition and criticism. Opponents argued that the amendment violated constitutional principles, infringed on individual rights, and left the legislation open to misuse and misinterpretation.

Key features of the act that have drawn criticism include[57]:

  1. Granting the central government absolute authority to designate individuals as terrorists. This provision has been viewed as arbitrary and contrary to the principles of the Rule of Law.
  2. Allowing the National Investigation Agency (NIA) to take over cases under the UAPA, which would otherwise fall under the jurisdiction of state police. This shift centralizes power at the federal level, undermining the balance of the federal structure enshrined in the Indian Constitution. This centralization is seen as contrary to the vision of the Constitution’s framers.

The 2008 amendments to the UAPA expanded the Central Government's authority to ban organizations and prosecute their members. Previously, the UAPA allowed the government to declare groups as "terrorist organizations," "terrorist gangs," or "unlawful associations." These amendments broadened those powers by increasing the number of criminal offenses associated with membership in or affiliation with such organizations, based on the vague and overly broad definition of "terrorism" mentioned earlier.

Under the UAPA, unlawful activity includes any action (such as speech or communication) that supports claims for secession or that generally "disclaims, questions, disrupts, or intends to disrupt the sovereignty and territorial integrity of India." It also includes actions intended to "cause disaffection against India[58]." An association may be deemed unlawful if its objectives involve such "unlawful activities" or if it promotes or encourages them.

The UAPA grants the government extensive powers to ban organizations, which can allow authorities to detain individuals for prolonged periods without trial, particularly in the aftermath of violent incidents. This broad authority to declare a group unlawful or terrorist and criminalize its membership carries significant risks of misuse and violations of fundamental freedoms. It can also facilitate discriminatory and abusive counterterrorism practices, such as mass arrests targeting individuals from specific religious or caste groups.

Historical examples, such as the misuse of earlier laws like TADA and POTA, illustrate this potential for abuse. In 2002, following the Godhra train fire in Gujarat, the state government invoked POTA to arbitrarily detain hundreds of Muslims, including juveniles, even as communal violence claimed the lives of thousands of Muslims[59].

ICCPR

The International Covenant on Civil and Political Rights (ICCPR) was adopted and made available for signature, ratification, and accession through General Assembly Resolution 2200A (XXI) on December 16, 1966. However, it took an additional decade for the required 35 States to ratify the covenant, allowing it to officially come into effect on March 23, 1976, as per Article 49.

The ICCPR, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR), expands upon the rights outlined in the Universal Declaration of Human Rights. Together, the Universal Declaration and these two Covenants constitute the International Bill of Human Rights.

Article 22 of the ICCPR provides that every individual has the right to associate freely with others, including the freedom to establish and join trade unions to safeguard their interests. Restrictions on this right are permissible only if they are prescribed by law and deemed necessary in a democratic society to protect national security, public safety, public order, public health or morals, or the rights and freedoms of others. This provision does not preclude lawful limitations on the exercise of this right by members of the armed forces and police.

Appearance in official data base

[60]
[61]


[62]


Research that engages with Unlawful Association

Manisha Sethi’s Tenuous Legality: Tensions Within Anti-Terrorism Law in India critically examines the evolution and impact of anti-terrorism legislation in India. The paper explores the tension between constitutional safeguards and the legal provisions of laws like TADA, POTA, and UAPA, highlighting how these laws challenge foundational legal principles. Sethi analyzes the philosophical and jurisprudential approaches of the judiciary, particularly the Supreme Court, in addressing accusations of unconstitutionality and the practical implications of these laws in undermining evidentiary norms. This work provides a nuanced perspective on the unresolved conflicts within India’s legal framework concerning anti-terrorism measures[63].

The article Dissent in a Democracy: Political Imprisonment under the UAPA in India examines the historical evolution and misuse of the Unlawful Activities (Prevention) Act (UAPA) in India, highlighting its role in suppressing dissent and curbing fundamental rights. The UAPA has been disproportionately used to target marginalized communities, exacerbating social and political inequalities. The piece underscores the urgent need for reforms to protect democratic principles and prevent the abuse of state power, ensuring that dissent does not become a criminal act under the guise of national security[64].

Reference

  1. ↑ S 2(p)(i)
  2. ↑ S 2(p)(ii)
  3. ↑ S 3 (1)
  4. ↑ S 3 (2)
  5. ↑ S 3 (3)
  6. ↑ S 3 (4)(a)
  7. ↑ S 3 (4)(b)
  8. ↑ S 3 (4)(c)
  9. ↑ S 3 (4)(d)
  10. ↑ S 4 (1)
  11. ↑ S 4 (2)
  12. ↑ S 4 (3)
  13. ↑ S 4 (4)
  14. ↑ S 6 (1)
  15. ↑ S 6 (2)
  16. ↑ S 7 (1)
  17. ↑ S 7 (2)
  18. ↑ S 7 (3)
  19. ↑ S 7 (4)
  20. ↑ S 7 (5)
  21. ↑ S 8 (1)
  22. ↑ S 8 (2)
  23. ↑ S 8 (3)
  24. ↑ S 8 (4)
  25. ↑ S 8 (5)
  26. ↑ S 8 (6)
  27. ↑ S 8 (7)
  28. ↑ S 8 (8)
  29. ↑ S 9
  30. ↑ S 5(1)
  31. ↑ S 5 (2)
  32. ↑ S 5 (3)
  33. ↑ S 5 (4)
  34. ↑ S 5 (5)
  35. ↑ S 5 (6) (a)
  36. ↑ S 5 (6) (b)
  37. ↑ S 5 (6) (c)
  38. ↑ S 5 (6) (d)
  39. ↑ S 5 (6) (e)
  40. ↑ S 5 (7)
  41. ↑ S 10 (a) (i)
  42. ↑ S 10 (a) (ii)
  43. ↑ S 10 (a) (iii)
  44. ↑ S 10 (a) (iv)
  45. ↑ S 10 (b) (i)
  46. ↑ S 10 (b) (ii)
  47. ↑ S 11
  48. ↑ S 12 (1)
  49. ↑ S 12 (2)
  50. ↑ S 13 (1) (a)
  51. ↑ S 13 (1) (b)
  52. ↑ S 13 (2)
  53. ↑ S 13 (3)
  54. ↑ S 14
  55. ↑ 1952 AIR SC 196
  56. ↑ 2011 (3) SCC 377
  57. ↑ Law Wire Team, An Analysis of Unlawful Activities Prevention (Amendment) Act, 2019 through the prism of Constitutional Values, Law Wire (June 7, 2021), https://lawwire.in/an-analysis-of-unlawful-activities-prevention-amendment-act-2019-through-the-prism-of-constitutional-values/
  58. ↑ S 2 (o)
  59. ↑ Human Rights Watch, Compounding Injustice: The Government's Failure to Redress Massacres in Gujarat (New York: Human Rights Watch, June 2003), http://www.hrw.org/en/node/12314/section/1; see also, Bar Association of the City of New York, Antiterrorism and Security Laws in India, p. 79.
  60. ↑ https://pib.gov.in/PressReleasePage.aspx?PRID=2039655
  61. ↑ https://www.mha.gov.in/en/commoncontent/unlawful-associations-under-section-3-of-unlawful-activities-prevention-act-1967
  62. ↑ https://www.mha.gov.in/sites/default/files/AnnualReport_27122024.pdf
  63. ↑ Manisha Sethi, Tenuous Legality: Tensions Within Anti-Terrorism Law in India, 13 Socio-Legal Rev. 140 (2017), https://docs.manupatra.in/newsline/articles/Upload/2346AF6B-79D0-4CA9-9174-5A2433D3C856.pdf.
  64. ↑ EPW Engage, Dissent in a Democracy: Political Imprisonment under the UAPA in India, Econ. & Pol. Wkly. Engage (July 29, 2022), https://www.epw.in/engage/article/dissent-democracy-political-imprisonment-under
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