UAPA | Timelines For Sanction Mandatory, Have To Be Strictly Followed : Supreme Court

"In matters of strict construction, when a timeline is provided, along with the use of the word 'shall' and particularly when the same is in the context of a law such as the UAPA, it cannot be considered a mere technicality or formality," the Supreme Court observed today. 

A bench of Justices C.T. Ravikumar and Sanjay Karol made these observations in the context of the grant of sanctions under Section 45 of the Unlawful Activities (Prevention) Act, 1967 and Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation And Sanction of Prosecution) Rules, 2008 where divergent views have been found in the judgments of the High Courts.

In this case, amongst other issues, the failure to comply with the statutory timeline for recommending and granting the sanctions was raised. It was claimed that impugned sanctions were not granted in accordance with the statutory mandate because the same was recommended 2 years and 11 months after the incident and was granted after 2 years and 6 months. 

The observations hold importance in the context of Section 45 UAPA which states that if the Courts take cognizance without prior sanction of the Government, Centre or State, the same shall be in contravention of the Act and therefore bad in law.

The 2008 Rules prescribe a statutory timeline for sanctions. As per Rule 3, the Authority has to make a report containing the recommendations regarding sanctions to the Central Government or the State Government, as the case may be, within 7 working days of the receipt of the evidence gathered by the investigating officer under the Code of Criminal Procedure. 

Once sanctions are recommended, the decision regarding sanctions for prosecution shall be taken within 7 working days after receipt of the recommendations of the Authority by the Central Government.

The Bombay High Court and the Jharkhand High Court have interpreted the 2008 Rules and Section 45 UAPA to observe that the timelines provided in it are 'directory' in nature. They have interpreted the word 'shall' as 'may'. Whereas, the Kerala High Court interpreted it as mandatory.

In Roopesh v. State of Kerala (2022), the High Court held that the timeline stipulated cannot be taken to be a directory, keeping in view of the Legislature's express inclusion of the same. However, an opposite view was taken by the Jharkhand High Court in Binod Kumar@Vinod Kumar Ganjhu@Binod Ganjhu v. UOI (2023), in which the court rejected 'Roopesh' was binding precedent held: "We are unable to record our agreement to the observations made by the Kerala High Court in "Roopesh" that the time-line provided under Rules 3 and 4 of the Sanction Rules is mandatory."

In Mahesh Kariman Tirki v. State of Maharashtra (2023), the Bombay High Court also rejected Roopesh as a binding precedent. It held: "The very purport of the provision is to convey that the process has to be complied with and completed in an expeditious manner. Particularly, we have taken into account the contingency which may occur, if the word “shall” in the context is held mandatory. In that case, even if a single days delay would stifle the prosecution intending to curb the act of terrorism.

Certainly, the legislative intent behind incorporating the term “shall” is not to stifle the prosecution on such insignificant technicality, but conveys that the process ought to be completed in an expeditious manner. We are unable to persuade ourselves to accept the contention that the term “shall” is to be strictly treated as a mandatory provision and failure to comply with the timeline strictly vitiates the process. Therefore, we respectfully defer with the view taken by the Kerala High Court in the case of Roopesh (supra) in that regard."

The Bombay High Court had additionally noted that in the Kerala High Court, the SLP was withdrawn and the question of law was kept open in Roopesh. It stated: "We are not inclined to construe the time frame as inexorable, breach whereof may have the unintended consequence of nipping the prosecution in the bud. We are not suggesting even for a moment that the time period can be violated with impunity."

Settling any confusion on the interpretation, the Supreme Court  has held that the use of the word 'shall' demonstrates the clear intention of the legislature.

It held: "While the legislation is aimed at curbing unlawful activities and practices detrimental to national security and accordingly, provides the authorities of the Government ample power to undertake and complete all procedures and processes permissible under law to that end, at the same time the interest of accused persons must also be safeguarded and protected. It is expected of the Executive, in furtherance of the ideal of protection of national security, that it would work with speed and dispatch."

Addressing the concern expressed by the Bombay High Court that a strict interpretation of the timeline may defeat the objective of the legislation, the Court noted: "While on first blush, such a statement is attractive, we cannot lose sight of the fact that the time granted is only for consideration of the material collected by way of an independent review and then making a recommendation whereafter the sanctioning authority may then consider the materials as well as recommendation to finally, grant or deny the sanction. It is not for the purpose of the investigation itself, which understandably can be a time-consuming process, given the multiple variables involved."

The court added: "There have to be certain limitations within which administrative authorities of the Government can exercise their powers. Without such limitations, power will enter the realm of the unbridled, which needless to state is, antithetical to a democratic society. Timelines in such cases, serve as essential aspects of checks and balances and of course, are unquestionably important."

The Court specifically remarked that if the views of the Bombay and Jharkhand High Courts is allowed to stand, it would be "tantamount to the Judicial Wing supplanting its view in place of the legislature which is impermissible in view of the doctrine of separation of powers."

The Court has observed: "The procedures qua sanctions provided in such legislations are meant to be followed strictly, to the letter more so to the spirit. Even the slightest of variation from the written word may render the proceedings arising therefrom to be cast in doubt."

The Court concluded: "The timelines mentioned in Rules 3 & 4 of the 2008 Rules are couched in mandatory language and, therefore, have to be strictly followed. This is keeping in view that UAPA being a penal legislation, strict construction must be accorded to it. Timelines imposed by way of statutory Rules are a way to keep a check on executive power which is a necessary position to protect the rights of accused persons. Independent review by both the authority recommending sanction and the authority granting sanction, are necessary aspects of compliance with Section 45 of the UAPA."

Case Details: Fulleshwar Gope v. UOI & Ors.,

Citation : 2024 LiveLaw (SC) 729

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