Why Can't Supreme Court Take Judicial Notice Of UAPA & PMLA Misuse? Senior Advocate Mihir Desai

He was speaking at a seminar on judicial accountability in Delhi, organised by the Campaign for Judicial Accountability and Reforms (CJAR). The theme of the event was 'Supreme Court's Recent Trend on Cases Involving Civil Liberties and Political Rights'.  

During his address, Desai expressed deep concern over the misuse of legislations like the UAPA and the PMLA to stifle dissent and crush opposition voices. He highlighted situations where individuals were arrested not due to any actual incidents but out of fear and suspicion, citing examples like the Bhima Koregaon case. With dismay, Desai noted the Supreme Court's role in this, particularly referencing its Zahood Ahmad Watali verdict. The Watali bench, led by former Supreme Court judge AM Khanwilkar, not only restricted the ambit of examination of a court at a pre-trial stage to the prosecution's version of events – unchallenged in cross-examination, but also placed a bar on a detailed analysis of the prosecution's case itself when dealing with the question of bail under Sub-section (5) of Section 43D of the UAPA.

Desai also referred to a recent judgment handed out by a bench of Justices MM Sundresh and Aravind Kumar that turned the oft-quoted maxim 'bail, not jail' on its head. In this case, while denying bail to a man charged under the anti-terror statute for alleged links with the Khalistani separatist movement, the apex court held that mere delay in trial is no ground to grant bail in grave offences. Notably, from the phraseology of the bail provision under the UAPA, the bench inferred that the intention of the legislation, while enacting the law, was to make 'jail' the rule and 'bail' an exception.

“In order to crush dissent, one of the easiest ways which the government has found is to use UAPA,” Desai remarked, “You have a situation where people are being put in, not because of any incident which has happened, but over suspicion. And what is the Supreme Court's response?"

In the recent Electoral Bonds case, the Supreme Court took judicial notice of the nexus between money and politics. Similarly, why can't the Court take judicial notice of the misuse of UAPA and the PMLA, he asked.

“Why can't the Supreme Court take judicial notice of the fact that the UAPA is being misused? Why can't it take judicial notice of the fact that the PMLA is being regularly misused?" Desai questioned, highlighting what he described as a 'lack of intent' to uphold civil liberties in the face of the executive's zealousness. He also criticised the top court for its perceived inaction on issues relating to Kashmir, internet bans, and other forms of executive overreach.

“We are at a situation, we are at a juncture in our country right now where authoritarianism, bordering on fascism, already exists. One of the hallmarks of any authoritarian government is not to allow anybody to dissent, be it by voice, assembly, or protest. That's a hallmark of any authoritarian authority. And it is in those times that one expects the Supreme Court, which is the guardian of these rights, to immediately step in and insist, 'Sorry, no more.'”

"Why does the Supreme Court always bow down to what the Solicitor General of India says? Even though the post of solicitor general is not a constitutional post. Any time somebody raises the issue of Kashmir, he jumps up and says, "Oh, we know who they are acting for. They are acting on behalf of our neighbouring nation." And the judges do not have the gumption to touch him. They don't have the guts to tell him, "Mr. Solicitor, just sit down, shut up, and sit down." That's what should be done. In USA, you know, the Supreme Court is known by the Chief Justice. Today, the Indian Supreme Court should be known as Tushar Mehta's Court. That's the kind of situation we have come to. And nobody has the guts to point that out."

In his speech, the senior counsel emphasised the importance of public pressure and street protests in bringing about change, citing examples from other countries where mass movements have influenced judicial reforms. 

At the end, he urged for a stronger stance against authoritarian tendencies, both from the executive and the judiciary. In conclusion, he said, “I think civil liberties are as much under threat from the Supreme Court as they are from the executive. So, let's all jointly try and fight it.”

The seminar, organised by the Campaign for Judicial Accountability and Reforms, provided a platform for important discussions on the role of the judiciary in safeguarding civil liberties and holding the government accountable.

The video can be watched here.

Live updates can be read here.

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