Supreme Court verdict has changed a dire legal landscape that has seen blatant misuse of UAPA
a Decision of the Supreme Court of India on October 28, 2021 It has immense potential to reclaim the idea of individual liberty and human dignity. In Thavah Crop vs Union of India, the Court has acted in its introspective jurisdiction and has reworked the provisions of Unlawful Activities (Prevention) Act (UAPA)) with a great sense of legal realism. This paves the way for a stronger judicial authority against the open misuse of this draconian law.
background
There are three accused from Kerala in this case. The third of them is absconding. The police registered a case and later the investigation was handed over to the National Investigation Agency (NIA). The accused were of their age when they were arrested on November 1, 2019. During the investigation, some material containing radical literature was found, including a book on caste issues in India and Lenin’s translation of dissent notes written by Rosa Luxembourg. There were also pamphlets which allegedly pertained to Maoist organisations.
Thus, the provisions of UAPA were implemented. The first accused Alan Schueb was charged with offenses under Sections 38 and 39 of the UAPA and 120B of the Indian Penal Code (IPC). Section 38 deals with “offences relating to membership of a terrorist organization” and section 39 deals with “offences relating to support given to a terrorist organisation”. Section 120B of IPC is a penal provision for criminal conspiracy. In addition to these charges, the second accused, Thavaha Faesal, was charged under Section 13 of the UAPA – which provides for punishment for unlawful activities. Both the accused were students and they were not charged with any kind of violence. According to the accused, the allegation was an attempt to label him as a terrorist on the basis of the intellectual and ideological leanings attributed to him.
judicial trajectory
The case had a curious trajectory. After initial rejection of the petitions, the trial judge granted bail to both the accused in September 2020. By that time, the students had completed more than 10 months in prison. The High Court, in appeal, while confirming Allen’s bail, decided to quash the bail granted to Thavaha. Thereafter the matter reached the Supreme Court. The Supreme Court, after a comprehensive inquiry, upheld the trial judge’s finding that the material, Prima facieDo not show “any intention on the part of both the accused to further the activities of the terrorist organization”. Found guilty in the High Court for not having the courage to record it, Prima facie, Findings in respect of charges against Thavaha, whose bail was set aside by the High Court. The top court confirmed the bail granted to both the students. Now they have been set free.
The Supreme Court was emphatic and lenient when it said that association with a terrorist organization alone is not enough to attract alleged crimes. The Court held that unless the association and support is “with the intention of furthering the activities of a terrorist organisation”, the offense under Section 38 or Section 39 does not constitute. It is not merely the possession of documents or books by the accused in the early stages or their attraction to any ideology. actually ipo Or ipo jury Make it a crime, the court ruled.
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The decision can serve as an effective warning against an oppressive regime. It also exposes UAPA, the hypocrisy of the law. Section 43D(5) of the UAPA states that for a number of offenses under the Act, bail should not be granted if “on the basis of the case diary or report (investigated) … there are reasonable grounds for believing that the allegation … is prima facie true.” Thus, the Act prompts the court to consider the version of the prosecution alone while deciding the question of bail. Unlike the Code of Criminal Procedure, UAPA, based on the provision of Section 43D(2), allows a person to be kept in jail for up to 180 days without filing a charge sheet. Thus, the law prevents a comprehensive investigation of the facts of the case on the one hand, and on the other extends the trial indefinitely by keeping the accused in jail.
estimation of fault
UAPA presumption of guilt of the accused, rather than presumption of innocence. Section 43E of the Act clearly says about “presumption as to offences”. Jail is the rule as per Section 43D(5) and bail is often no exception. court, in or croppedrefused to make this clause in a narrow and restrictive sense. This analysis has liberalized an otherwise lenient bail clause to some extent. In the process, the Court has also tried to mitigate the grave error committed by the two-judge Bench of the Supreme Court. National Investigation Agency Vs Zahoor Ahmed Shah Watali (2019) which interpreted the same provision.
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In Zahoor Ahmed Shah WataliThe court said that under Section 43D(5) of the UAPA, the burden is on the accused to show that there is no prosecution case. Prima facie truth. offer in Zahoor Ahmed Shah Watali It is that the bail court should not even examine the material and evidence in depth and consider the bail plea primarily on the basis of the nature of the allegations, because according to the court, Section 43D(5) is a thorough and thorough investigation. prohibits. In such a situation, bail applications were rejected in many cases on the basis of Zahoor Ahmed Shah Watali, despite strong indications that the evidence itself was false or fabricated. Many intellectuals including Sudha Bharadwaj and Siddiqui Kappan were denied bail on the basis of a narrow interpretation of the bail provision as was done in Zahoor Ahmed Shah Watali. Stan Swamy was another victim of this provision and its misleading study.
The apex court has now changed this dreadful legal landscape. To do so, the Court later relied on the decision of a three-judge bench as well. Union of India vs KA Najeeb (2021). In KA NajeebThe larger bench observed that even the stringent provisions of section 43D(5) do not dilute the constitutional court’s power to grant bail on the ground of violation of fundamental rights.
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The text of harsher laws sometimes severely challenges the courts by limiting the space for judicial discretion and adjudication. This is even more evident in the context of bail. Courts generally use two conflicting methods to deal with such strict provisions. The first is to read and apply the provision literally and mechanically, with the effect of curtailing individual liberty as intended by the makers of the law. In contrast to this view, there may be a constitutional reading of the statute, which considers issues from a human rights perspective and seeks to reduce the rigidity of the vicious content of the law. reflected in the former approach Zahoor Ahmed Shah Watali And later or cropped. In or croppedThe Court, through explanatory exercise, has emphasized the primacy of the judicial process over the text of the enactment.
Delhi riots case
on 15 June 2021 Delhi High Court granted bail to student workers Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha Who was charged under the UAPA for having alleged links to the Delhi riots. In the appeal of the Delhi Police, unfortunately, the Supreme Court said that the reasoned decision of the High Court will not be treated as a precedent.
NS or cropped The judgment has, by implication, legitimized the methodology in the judgment of the Delhi High Court, which instead of swallowing the story of the prosecution, undertakes to examine the contents of the charge. It is judicial fundamentalism that constitutes a liberating legal instrument. The decision should be implemented to release other political prisoners in the country who have been denied bail either because of the rigidity of the law or because of folly in understanding the law or both.
Kaleeswaram Raj is a lawyer in the Supreme Court of India.
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