October 7, 2022

Lukmaan IAS

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UAPA NOT FOR USUAL OFFENCES: DELHI HIGH COURT

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THE CONTEXT: Foundations of our nation cannot be shaken by a protest organised by a tribe of college students, said the Delhi High Court on June 16 as it opined that prima facie, no offence under the Unlawful Activities (Prevention) Act was made against the college students charged under UAPA with respect to Delhi Riots.

Analysis:

  • Cautioning against the frivolously invocation of the “extremely grave and serious penal provisions under UAPA, the Court added that such an approach “would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation”.
  • Wanton use of serious penal provisions would only trivialise them“, the Court said.
  • In the bail orders of the students, the Court discussed in detail the scope of the phrase ‘terrorist act’ under section 15 of UAPA and opined that the term cannot be used so lightly that it would “trivialise the extremely heinous offence of terrorist act”.
  • The Court clarified that terrorism under UAPA ought to be understood differently from conventional, heinous crimes that fall within the Indian Penal Code.
  • The Court thus opined that the intent and purport of UAPA is to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less.

SIGNIFICANT ASPECTS OF THE JUDGMENT

  • The intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was to deal with matters of profound impact on the ‘Defence of India’(List 1, Entry 1) nothing more and nothing less
  • It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA.
  • Such conventional matters would have fallen within Entry 1 of List-II (State List, public order) and/or Entry 1 of List-III (Concurrent List, criminal law) of the Seventh Schedule to our Constitution.
  • In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.
  • The Court further held that there was “absolutely nothing”in the charge sheet that would show the possible commission of a ‘terrorist act’ within the meaning of section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA.
  • The court should not wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated, before it steps in and wakes-up to such violation and it is not a desirable course of action.
  • Apart from weighing in the three cardinal concerns against grant of bail pending trial i.e. evidence tampering, witness intimidation and abscondence, the Court also considered that pre-trial detention would not only lead to needless psychological and physical deprivations but also seriously hamper the under trials participation in preparation of his defence at the trial.

IMPLICATIONS OF THE JUDGMENT

  • This judgment stands as a beacon of hope for people who believe in liberties, especially civil liberties of the citizens.
  • It is very important in another context, because these are cases in which the UAPA is invoked where there is a presumption that bail cannot be granted unless the court comes to the conclusion that a prima facie case is made out that bail has to be granted.
  • What the Delhi High Court has today basically held is that bail for an offence under UAPA can be granted even when a prima facie case (for bail) is not made out. So, the judgment stands for liberty.
  • It cautions against casual invocations of UAPA for offences which can be dealt by ordinary criminal laws.
  • It reaffirms the fundamental rights under Article 19 1(a), 19 1 (b) and holds that even if the exercise of these rights may be illegal, they are not terrorist acts (in this case) to be tried under UAPA.
  • It reminds the Executive that in a democratic country the right to dissent is sacrosanct.
  • More importantly, the verdict stems the tide of “jail not bail” rule in UAPA and brings back the maxim “Bail not Jail” jurisprudence.
  • Also, it brings a rare moment of Judicial Assertion in the face of a strong executive that alleged to have impunity in punishing its critics.
  • The judgment places importance of the Rights of under trials languishing in Indian jails for want of speedy trials (NCRB 2017 report, 66% of inmates are under trials and not convicted).
  • The court castigated the Police for not applying its mind while adding charges under UAPA where none is made out.
  • The judgment operationalizes the principle of “checks and balances/judicial review” while rejecting the claims of the State with respect to “UAPA’ offences.
  • The judgment provides hope for scores of individuals incarcerated unjustifiably under the UAPA provisions to get bail if other high courts take a leaf out of the Delhi HC’s verdict

ABOUT UAPA

  • The Unlawful Activities (Prevention) Act, 1967 enables more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities, and other related matters.
  • Till the year 2004, unlawful activities referred to actions related to secession and cession of territory.
  • Following the 2004 amendment, “terrorist act” was added to the list of offences.
  • The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
  • Under the UAPA, the investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.
  • Both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.
  • It has death penalty and life imprisonment as highest punishments.
  • Section 13 of UAPA punishes anyone who aids, abets, advices or incites unlawful activities.
  • As per Section 43D(5), bail cannot be granted to a person accused of being involved in terrorist activities if the Public Prosecutor has not been given a reasonable opportunity of being heard.
    • The proviso to the provision provides for a condition when the accused would not be released on bail.
    • It mandates that if the court is convinced, after receiving evidence from the case diary or report, that the accusations against the person are prima facie true, bail would not be granted to the accused.
    • Since the latter provision has been frequently misused by the State and misinterpreted and misapplied by the courts
    • In National Investigating Agency Zahoor Ahmad Shah Watali, 2019 the Supreme Court opined that in order to determine whether the charges are prima facie true, an elaborate examination of the evidence produced before the court does not need to be conducted.
    • The SC held that the financial records of the accused, which indicated funding from questionable foreign sources were sufficient to hold that the accusations against the accused were prima facie 
  • Thus, this judgment of the SC has provided substantial leeway for the executive to keep its critics in jail and jurists opine that the Watali judgment needs to be revisited by the SC.
  • In Najeeb vs. Union of India, 2021, the SC held that “Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, courts would ordinarily be obligated to enlarge them on bail.”

THE UAPA AMENDMENTS 2019

    • In August 2019, Parliament cleared the Unlawful Activities (Prevention) Amendment Bill, 2019 to designate individuals as terrorists if the individual commits or participates in acts of terrorism, prepares for terrorism, promotes terrorism or is otherwise involved in terrorism.
    • The Act empowers the Director General of National Investigation Agency (NIA)to grant approval of seizure or attachment of property when the case is investigated by the said agency.
    • The Act also empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.
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