Shreyas Alevoor: Neither a Court, Nor a Tribunal – India’s Anti-Terror Review Committees

The Unlawful Activities (Prevention) Act, 1967 (“UAPA”) is the primary anti-terror legislation in force in India. The Act, among other things provides for associations to be declared as “unlawful”, and organizations and individuals to be notified as “terrorist” by the Central Government on the mere suspicion that they have been “involved in terrorism”. Once an organization or individual is notified as terrorist, the first remedy available is to apply for denotification before the Central Government, and then appeal before a Review Committee. The verdict of the Review Committee may be then appealed before the High Court, and finally the Supreme Court. Note that the process of designating organizations/ individuals under the UAPA is not a judicial process – you do not have to be tried and convicted before a court of law to be deemed a terrorist in the eyes of the Indian state.

Under the Indian constitutional scheme, the task of administering justice is left to courts and tribunals. Interestingly, the UAPA also provides for its own Tribunals under Section 5 of the Act, which have been tasked with the function of holding inquiries as to whether there exists sufficient cause for declaring an association as “unlawful”. As the title of this article suggests, I claim that a Review Committee is neither a court, nor a tribunal. Therefore, from an administrative law perspective, the structure of Review Committees established under the UAPA presents interesting questions: what is the nature of a Review Committee? How are they different from tribunals generally, and the Tribunals established under this Act? What implications does the composition of the Review Committees have on judicial independence? These are some of the issues I seek to engage with in this piece.

What exactly is a Review Committee?

At first sight, it would seem that a Review Committee established under the UAPA bears characteristics of both courts and tribunals. A deeper analysis would suggest that it is neither.

In a landmark case on tribunal jurisprudence, the Supreme Court in Union of India v. R. Gandhi (“R. Gandhi”) undertakes an in-depth analysis on the nature of courts, and how they are different from tribunals which is relevant to this discussion, some of which I quote here:

Courts are established by the State and are entrusted with the State’s inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are Tribunals. But all Tribunals are not courts. [emphasis mine]

The judgement then goes to explain the contours of the term ‘administration of justice’ as the“exercise of the judicial power of the state to maintain and uphold the rights, to punish wrongs and to adjudicate upon disputes.”

Given the implications on the exercise of fundamental rights that being designated as a “terrorist” has, one could make a case for considering Review Committees as courts. But that is not the case, since unlike the Review Committees, courts are bound by statutory procedural rules such as the Code of Civil Procedure (“CPC”) and Indian Evidence Act (“IEA”).

A perusal of the bare text of the Act would suggest that Review Committees, are similar to tribunals, in that they are not required to adhere to procedural safeguards or evidentiary standards. Historically, the impetus for the establishment of tribunals emerged from the snail-like pace in which courts functioned. Thus, tribunals were given the power to regulate their procedures without having to adhere to the CPC and the evidentiary standards under the IEA. This is also the case with the UAPA Tribunals.

At this point, it would appear that the Review Committees are closer to tribunals than courts in their procedure (or lack thereof). In fact, in his speech before the Rajya Sabha, Home Minister Amit Shah would go on to claim that Review Committees (like tribunals) would be ‘quasi-judicial’ bodies. But even then, the Supreme Court’s jurisprudence on tribunalisation consistently upholds judicial independence in appointments to tribunals as a virtue. In fact, R. Gandhi held that the exercise of powers by tribunals would be “subject to constitutional limitations, without encroaching upon the independence of judiciary and keeping in view the principles of Rule of Law and separation of powers”, which brings me to my second question:

Does the composition of Review Committees uphold judicial independence?

Section 37 of the UAPA provides that the Review Committee shall be constituted by the Central Government, and shall consist of a Chairperson, and not more than three other non-judicial members. The Chairperson of the Committee shall be a (sitting or retired) judge of a High Court. Certainly, the fact that the political executive is empowered to appoint the Chairperson to the Committee (as is also the case with appointments to the Tribunals under this Act) flies in the face of judicial independence, but that is a story for another day.

Additionally, the Qualification for the members of the Review Committee Rules, 2014 provide that the non-judicial members shall be appointed from the political executive, and shall be a person who is, or has been:

a. An officer not below the rank of Secretary to the Government of India; and

b. Has one year experience in legal affairs and administration of criminal justice.

Another factor which also acted as impetus for the establishment of tribunals was the lack of expertise on various technical subjects (such as taxation, environment) that judges of courts suffered from. Tribunals in this regard were considered a significant innovation – they provided for technical members who had subject-matter expertise alongside judicial members. The qualifications prescribed for members to the Review Committees would suggest that they resemble the technical members sitting on tribunals.

On the question of appointment of non-judicial members to tribunals, the Court in R. Gandhi ruled that:

Where however jurisdiction to try certain category of cases are transferred from Courts to Tribunals only to expedite the hearing and disposal or relieve from the rigours of the Evidence Act and procedural laws, there is obviously no need to have any non-judicial Technical Member. In respect of such Tribunals, only members of the Judiciary should be the Presiding Officers/members of such Tribunals… Therefore, when transferring the jurisdiction exercised by Courts to Tribunals, which does not involve any specialized knowledge or expertise in any field and expediting the disposal and relaxing the procedure is the only object, a provision for technical members in addition to or in substitution of judicial members would clearly be a case of dilution of and encroachment upon the independence of the Judiciary and Rule of Law and would be unconstitutional. [emphasis mine]

It is apparent that the functions which the Review Committees exercise are those which would be ordinarily performed by the Courts, and were only shifted to the purview of the Committee to meet the exigencies of national security. Therefore, if tribunals cannot consist of non-judicial members without risking being struck down as unconstitutional, what implications does the appointment and inclusion of non-judicial members by the executive have on the independence of the Committee? More importantly, what does this bode for the applicants before it? There is no answer to this, because no one really knows. In this regard, Nitika Khaitan notes that:

Outside Parliament, as reported by News18, Home Ministry officials gave further assurances, stating that if their “systems were robust for banning organisations, there is no reason to believe that they won’t be robust for banning individuals”. The robustness is evident from the fact that of the 42 organisations banned in the past 15 years, they could name only one that had gone before the review committee. Since these committees need not publicly disclose anything about their functioning, there is no way to verify who else has approached them and what processes they have followed.

Conclusion – Executivising Justice?

This brings me back to the question I ask in the beginning: if Review Committees are neither courts nor tribunals, what exactly are they? The Supreme Court’s judgement in Jaswant Sugar Mills v. Lakshmichand provides some clues. In this case, the Court (in the context of Labour Tribunals) draws the distinction between administrative and judicial functions as being a duty to act judicially:

A judicial decision always postulates the existence of a duty laid upon the authority to act judicially. Administrative authorities are often invested with authority or power to determine questions, which affect the rights of citizens. The authority may have to invite objections to the course of action proposed by him, he may be under a duty to hear the objectors, and his decision may seriously affect the rights of citizens but unless in arriving at his decision he is required to act judicially, his decision will be executive or administrative. Legal authority to determine questions affecting the rights of citizens, does not make the determination judicial: it is the duty to act judicially which invests it with that character. What distinguishes an act judicial from administrative is therefore the duty imposed upon the authority to act judicially. [emphasis mine]

Going by this interpretation, it would appear that Review Committees are mere administrative bodies. The fact that it is mostly composed of members drawn from the political executive and its secretive procedures would confirm so. But is the guardianship of fundamental rights so unimportant that we have now relegated it from the highest courts of the land to mere administrative bodies? It would appear so. This is consistent with the behaviour that the judiciary exhibits when faced with questions of national security – secrecy, and an unflinching deference to the executive’s wisdom.

Shreyas Alevoor is an undergraduate student at National Law University, Odisha, Class of 2023.