When the Union Cabinet on Tuesday approved a proposal to ban controversial preacher Zakir Naik’s Islamic Research Foundation under the Unlawful Activities (Prevention) Act, 1967, the news did not come as much of a surprise. After all, the Centre had been going after the Islamic preacher and his non-governmental organisation for months, ever since Naik’s name cropped up during investigations into the July 1 attack on a Dhaka restaurant.

The five-year ban will take effect when the Ministry of Home Affairs issues a notification declaring IRF as an “unlawful association” under the Act.

Naik, a televangelist and preacher, hit the headlines after a Bangladeshi daily claimed that his speeches inspired one of the militants of the Dhaka attack. While the daily later retracted the report, Naik came under the lens of the Indian government, which has since then tried to zero in on him in many ways, including banning foreign funding to the IRF earlier in November, looking into his activities and banning his channel, Peace TV.

‘Unlawful’ association

An organisation can be declared an “unlawful association” on one of two grounds under the Act – for having committed crimes that amount to incitement of religious hatred or for posing a threat to internal security in India. This is slightly different from being listed as a “terrorist organisation” under the Schedule to the Unlawful Activities (Prevention) Act, but the consequences are serious nonetheless.

For a start, under the Act, a person can be punished with imprisonment up to two years for merely being a member of an “unlawful association”. All the assets of such an organisation, including bank accounts and immoveable property, can be instantly seized by local authorities once such a declaration is made.

There are remedies available against such a declaration – a tribunal consisting of a single sitting judge of the High Court, nominated by the government, will hear any challenge to the designation of an organisation as an “unlawful association”. However, the Act also offers an emergency power, which the government often uses, to decree that the declaration will operate “with immediate effect” – even before the tribunal can hear the challenge. Also, no appeal is provided from the order of the tribunal, but other avenues such as constitutional remedies, writ petitions to the High Court or special leave petitions to the Supreme Court are available.

The procedural protections under the Unlawful Activities (Prevention) Act are not entirely illusory either. Tribunal judges, being sitting High Court judges, are not necessarily beholden to the Union government and do act independently. They have, on occasion, rejected the basis for designating an organisation as an “unlawful association”. Even where they do agree with the government, courts have struck down such designations in the past for not being lawful or being based on inadequate information.

The Centre’s notification has not yet been made public, but going by the material they relied upon, it is likely that the IRF was banned on the allegation that its members (most likely, Naik himself), have indulged in activities that could be punished under Section 153A and B of the IPC, on fomenting hate between religious communities and cover “hate speeches”.

Draconian legislation

Does this give the Union government sufficient basis to ban the IRF?

The Unlawful Activities (Prevention) Act requires the government to give all the reasons for declaring an organisation as unlawful within the notification itself. For instance, this notification designating the United Liberation Front of Assam as an unlawful association lists out all the incidents and acts which have been attributed to the insurgent group.

Rumours and reports have been doing the rounds for months that the government is trying to build a water-tight case against IRF – how successful these efforts have been will be known once the notification is subject to judicial scrutiny.

However, the merits of the action against Naik and the IRF apart, the existence of draconian laws such as the Unlawful Activities (Prevention) Act, passed in 1967 and amended in 2008 and 2012 to make it even more stringent, should concern us all.

A report of the Jamia Teachers Solidarity Association highlights the massive potential for misuse and abuse of the Act and its machinery by governments in India, especially in the context of the Students Islamic Movement of India. The report alleges that the government has used the ban on SIMI under the Act to “arbitrarily pick, detain and then arrest and frame Muslim youth.” Indeed, the repeated bans on SIMI since 2001 and the subsequent failure of the judiciary to hear the challenges to them in time show that the procedural protections in the Unlawful Activities (Prevention) Act and even the constitutional remedies in court, are not always as robust as they seem to be.

One of the most problematic provisions of the Act is that under it, mere membership of an unlawful organisation is a criminal offence.

The law on this is presently unsettled. The Supreme Court, in Arup Bhuyan vs State of Assam, had held in the context of the Terrorist and Disruptive Activities (Prevention) Act, 1985, that unless membership meant active participation in the illegal activities of a terrorist organisation, a member of such an organisation could not be prosecuted under the now-defunct Act. Bhuyan had been alleged to be a member of ULFA.

The correctness of this judgment has been questioned in the Supreme Court by the Union Government (which was not a party to the previous case) and the State of Assam. The issue is pending before a larger bench of the Supreme Court. (Disclaimer: I was involved in this litigation on behalf of the Union of India)

Given the range of internal security threats and use of religion to incite violence – the Unlawful Activities (Prevention) Act has also been used to “ban” the RashtriyaSwayamsevak Sangh (though the tribunal quashed it) and Vishwa Hindu Parishad in the past – a law such as this may be necessary as a legal measure in the communally sensitive social fabric of India. That said, in its present form, it still leaves enough open for misuse and abuse by governments for short term political ends.

Alok Prasanna Kumar is an advocate and Visiting Fellow at the Vidhi Centre for Legal Policy. All views expressed here are personal.