[Editorial Analysis] A new jurisprudence for political prisoners

Mains Paper 3: Internal Security
Prelims level: Unlawful Activities (Prevention) Act
Mains level: Challenges towards the implementation of the Unlawful Activities (Prevention) Act

Context:

• A Supreme Court Judgment in Thwaha Fasal vs Union of India on October 28, 2021 has immense potential to reclaim the idea of personal liberty and human dignity.

• The Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism.

Terror specific legislations in India:

• Unlawful Activities(prevention) Act (UAPA), 1967:It empowered appropriate authorities to declare any association as ‘unlawful’ if it is carrying out ‘unlawful activities’. This law was comprehensively amended by ULPA Amendment Act, 2004.

• It defines a ‘Terrorist act’ – in terms of the intention of the attack, its means employed(such as bombs, lethal substances etc.) and the end result(death, injury, forcing government or damage to critical infrastructure).

• It defines a “Terrorist organization” as an organization listed in the schedule or an organisation operating under the same name as an organisation so listed.

• It further provides a mechanism for forfeiture of the proceeds of terrorism apart from providing stringent punishments for terrorism related offences.

• At present the only Union Legislation dealing specifically with terrorism is the ULPA as amended by the Unlawful Activities Prevention (Amendment) Act, 2004.

Limitations:

• it does not provide for special courts or enhanced powers of investigation and provisions regarding confessions made before police officers.

• It does not define a ‘terrorist’, rather defines only a ‘terrorist act’ or a ‘terrorist organization’

• Further it includes the provisions to implement the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).

• 2019 amendment bill: It also defines a ‘terrorist’. It also adds the Nuclear Terrorism Convention OR International Convention for Suppression of Acts of Nuclear Terrorism (2005).

National Investigation Agency (Amendment) Bill, 2019 to amend NIA Act, 2008. Provisions:

• Scheduled offences: It provides for a national-level agency to investigate and prosecute offences listed in a schedule. These already included the offences under the Atomic Energy Act, 1962 and UAPA, 1967. The list after the amendment also includes human trafficking, offences related to counterfeit currency or bank notes, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908.

• Special courts: It allows for creation of Special Courts for the trial of scheduled offences.

• Jurisdiction of the NIA: The officers of the NIA have the same powers as other police officers in relation to investigation of such offences, across India.

• After the Amendment: NIA will have the power to investigate scheduled offences committed outside India, subject to international treaties and domestic laws of other countries. The Special Court in New Delhi will have jurisdiction over these cases.

Problems with these acts:

• Presumption of Guilt: Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused. Section 43E of the Act expressly says about “presumption as to the offences”. In Zahoor Ahmad Shah Watali, earlier even the SC has held that the burden is on the accused to show that the prosecution case is not prima facie true.

• Near impossibility to get bail: According to Section 43D(5), jail is the rule and bail is often not even an exception.

• Political prisoners: Often these laws have been applied to curb dissent. On June 15, 2021, the Delhi High Court granted bail to student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha who were charged under the UAPA for alleged connections with the Delhi riots. In an appeal by the Delhi police, unfortunately, the Supreme Court said that the well-reasoned judgment of the High Court shall not be treated as a precedent.

• Goes against the judicial prudence- if a person is labelled as ‘terrorists merely on the basis of speech and thought’. Rather it should be considered only if such speech gives rise to direct and imminent violence.

• Jail without accusation: Unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet.

• Prolonged trial: Thus, the statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.

The Judgement:

• Thwaha Fasal vs Union of India case from Kerala: Two students out of three were arrested on the UAPA charges by the Kerala police. The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA). During the investigation, some materials containing radical literature were found, which included a book on caste issues in India and a translation of the dissent notes written by Rosa Luxemburg to Lenin. There were also leaflets that were allegedly related to Maoist organisations. Thus, the provisions of the UAPA were invoked.

• The Supreme Court, after a comprehensive examination, upheld the trial judge’s finding that the materials, prima facie, do not show any “intention on the part of both the accused to further the activities of the terrorist organisation”. The top court confirmed the bail granted to both the students.

• Mere association with a terrorist organisation is not sufficient to attract the offences alleged. Unless and until the association and the support were “with intention of furthering the activities of a terrorist organisation”, offence under Section 38 or Section 39 is not made out, said the Court.

• Mere possession of documents or books by the accused at a formative young age, or even their fascination for an ideology, does not ipso facto or ipso jure make out an offence, the Court ruled.

Significance:

• Change in attitude of the Police: This paves the way for a formidable judicial authority against blatant misuse of this draconian law.

• Release of Political Prisoners: The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.

• Burden of Proof: Now some liability is upon the prosecution to supply a proof to keep a prisoner in Jail. The court has built upon Union of India vs K.A. Najeeb (2021) case where a three judge bench had said that even the stringent provisions under Section 43D(5) do not curtail the power of the constitutional court to grant bail on the ground of violation of fundamental rights.

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Prelims Questions:

Q.1) With reference to the “Sardar Patel Leadership Centre”, consider the following statements:

1. It is at Lal Bahadur Shastri National Academy of Administration (LBSNAA), Mussoorie, on the occasion of Rashtriya Ekta Diwas, marking the birth anniversary of Sardar Vallabhbhai Patel.

2. It will emerge as a Huge Resource Centre to provide continuous study and learning opportunities to Civil Servants from India and Abroad as visualised by the Father of All India Services.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: C

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