It Is Time For The Govt To Redeem Itself And Repeal UAPA

In 1961, the Prime Minister Nehru convened a National Integration Conference to find ways to combat communalism, casteism, regionalism, linguistic chauvinism etc., and a National Integration Council was set up to recommend on matters of national integration. Thereafter, The Unlawful Activities (Prevention) Bill was introduced in 1966. It was purported to deal with associations engaged in secessionist activities directed against the integrity and sovereignty of the Nation. It provided for setting up a high- powered Tribunal with a sitting or retired High Court Judge as the Chairman and two others who qualified to be High Court Judges. It was to identify and then outlaw such associations which were indulging in unlawful activities as stated above. Any person who continued his unlawful activities and associated himself with the outlawed Association was to be tried by the Tribunal in terms of Code of CrPC and could be punished with a sentence of 3/7/10 years. Thus in nature and substance the initial law was more akin to a Commissions of Inquiry as fact finding body.

However, this Bill lapsed and a fresh Bill was introduced, which was finally passed in 1967 retaining the same provisions slightly modifying the objects. It was almost never used because the Govt had in the meanwhile been promulgating some other preventive laws or the other like MISA 197, NSA 1980, TADA 1987, MCOCA 1999, POTA 2002 etc . As we all know, in 2001, 9/11 terrorist act happened in the US which not only changed the world order but also changed how we, as human beings, looked at each other. Every Asian and Muslim became a potential suspect. The UN took notice of the attack on the USA, the Security Council spearheaded and passed Resolution no 1373/2001 pertaining to threats to international peace and security caused by terrorist acts. Chapter VII of the Charter of the UN, expressing its concern at the increase of acts of terrorism, decided that all States prevent and suppress the financing of terrorist acts; criminalize the wilful provision or collection, by any means, directly or indirectly, freeze the accounts, prohibit any financial assistance to terrorists. It called upon better exchange of information between countries and conform to the protocols of earlier resolutions.

In answer thereof, in 2004 India passed UAPA Amendment Act, 2004 (Act No 29 of 2004). It interestedly noted that provisions of POTA were being misused in the past two years. However, since the Govt was firm in its resolve to combat terrorism and in view of commitments given in the UN in terms of Resolution 1373 it considered it necessary to criminalize various facets of terrorism by appropriate amendments in the UAPA. It then substituted the earlier miscellaneous chapter IV with, 'Punishment for terrorist activities', and added Chap V and VI to include forfeiture of proceeds of terrorism and terrorist organisations respectively. Thus, terrorist acts, its funding, its seizure and freeze became an important ingredients of the Act. It also provided for harsher punishment which could go up to death or Life Imprisonment. In effect it merged the definitions of 'terrorist' contained in TADA, which had lapsed in 1995 and POTA which was being repealed for reasons of misuse.

Because of these amendments UAPA, moved away from being a preventive law and inched towards substantive law creating new offences and punishments. However, it did not depart from the principles of criminal jurisprudence nor the Constitutional provisions. Interestingly this despite the fact that TADA and POTA had not adhered to such principles.

However, one did not have to wait for long. In 2008 the UAPA Amendment Act, 2008 (Act No 35 of 2008) was passed. It inserted a preamble citing UN Resolution including Resolution no 1373/2001 which was the reason for including terrorist activities in our domestic law, mentioned above, so far so good. However it mentioned a number of other Resolutions. On examination, I found that almost all the Resolutions pertained to the middle-east. Resolution No 1267/199 related to Afghanistan and Taliban, 1333/2000 also to Afghanistan, 1363/2001 related to sanctions on Afghanistan, 1390 sanctions against Osama bin Laden,1455/2003 sanctions against Taliban, Al Qaida, Osama, 1526/2004 further reaffirms the earlier resolutions. 1566, is also about reaffirming the earlier resolutions to counter-terrorism and to implement resolution 1373. 1617/2005 states to take measures previous against Al Qaida, Laden, Taliban, 1735/2006 review of ISI, Al Qaida and associated individual groups,1822/2008 for extending monitoring team overseeing sanctions against Osama, Al Qaida, Taliban and maintenance of the consolidated list of persons to whom sanctions were to apply. And all states were to apply a combination of sanctions against those mentioned in 1267/1333/1390.

On the basis of these resolutions our procedural law was radically changed. Firstly, vide Section 43E the Court was to presume unless the contrary was shown that the accused had committed the offence. In criminal matters law is that the prosecution has to prove its case beyond all reasonable doubt, whereas the burden or onus is much lighter on the defence. The defence has only to create a reasonable doubt in the mind of the Court. Nothing more. Here, by saying unless contrary is shown, it means that the defence is pitted against the prosecution and an equal burden is cast upon him. Thus Article 20 (3) Constitution of India "No person accused of an offence shall be compelled to be a witness against himself" which effectively means that an accused has a right to remain silent, Article 11 of UDHR "everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial, at which he has had all the guarantees necessary for his defence". Article 14(2) of ICCPR is on similar lines. Our Evidence Act also casts a burden on the Prosecution to prove its case, were laid to rest.

This provision has been transported from TADA and POTA. The legitimate questions under the circumstances are, i) if once the Prosecution has successively proved its case, will the accused have no right to a defence. ii) if the Prosecution proves its case will the Trial end at that stage with a sure shot conviction on the mandate of presumption since the word is 'shall' and not 'may'. Also, will the defence of an accused be rendered nugatory.

Besides, how could the Resolutions be read in our domestic law, disregarding our Constitution, UDHR and ICCPR I am unable to comprehend when the protocol is that basic principles of protection of human rights in the International covenants have to find its way in the domestic laws, it is missing.

Secondly Section 43 D (5) imposes twin restriction on bail one of which is 'if the Court………is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true'.

As I mentioned earlier vide amendments in 2004 there had been no collateral damage to our criminal justice system where UAPA was concerned though, through TADA and POTA, our system had earlier taken a beating. Unfortunately, in 2008, by citing UN Resolutions, which had absolutely no relevance to our procedural system, the restrictions made a lateral entry. I wonder if any debate happened on this issue before the amendments. If at all anyone bothered, he must have been comforted by the TADA judgment of Constitutional Bench in Kartar Singh VsState of Punjab decided in 1994.

It would do us some good to look at it. In the said case, an argument had been advanced that the twin conditions infringed the underlying principles contained in Articles 21 and 14, and was diametrically contrary to the salutary principle of criminal justice that every person is presumed innocent till he is proved to be guilty. Unfortunately, the Supreme Court merely answered that they were not violative of Articles 21 or 14, but left the principle of presumption of innocence unanswered.

However, I feel gratified that the Supreme Court has somewhat redeemed itself by setting aside the twin conditions in PMLA in 'Nikesh Tarachand Shah Vs Union of India' wherein it noted "we must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crimes. Absent any such compelling state interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a state interest in tackling crimes of an extremely heinous nature." To the latter part, I will come later.

To appreciate further the destruction of our domestic criminal justice delivery system we may to look to our scheme of procedural law and see how blatantly the amendments have affected the bulwark of separation of powers and the carefully designed hierarchy of Courts.

As we know our Constitution mandates complete separation of powers, and defines a robust structure for the Judiciary by providing for a Supreme Court, High Courts in each State and a Subordinate Judiciary controlled by the respective High Courts.

We also know that the Code of Criminal Procedure regulates our trial practices. Before independence, naturally the Code of 1868 did not conceive of separation of powers and the powers of executive and judiciary were jointly exercised. But in 1974 when the newer version of the Code came in, on recommendations of the Law Commission it was fine tuned to be in line with our Constitutional provisions. The successive Law Commissions, comprising of extremely competent, erudite, experienced and refined persons conducted an in-depth study of scheme of the Code, each provision, each word and had widespread consultations with the State Govts, the various Bar Associations and Judges after which made appropriate and extensive recommendations.

Just to touch on the issue of bail, Section 496 of the old Code defined the powers of Court to grant the bail in non-bailable offences when an accused is brought before it. Notably Section 497 stated that the accused was not to be released on bail in a nonbailable if there appeared reasonable ground for believing that he was guilty of an offence punishable with death or life.

It did not specify as to which Court such restrictions would apply. Notably the 41^st Law Commission Report while recommending changes in the Code in respect to bail recorded the following broad principles:

1) Bail is a matter of right in bailable offences

2) Bail is a matter of discretion in non-bailable offences

3) Magistrate was not to grant bail if the offence is punishable with death or life imprisonment

4) Court of Sessions and High Courts have wider discretion

Keeping these principles in mind Sections 437 /439 were drafted. Thus presently a Magistrate u/s 437 is not permitted to grant bail to an accused in a non bailable offences except on humane conditions but no such restriction is imposed upon the superior Courts i.e. the Sessions Judge and High Courts acting under the provisions of 439. By doing so, it achieved two -fold objectives firstly it gave wider discretionary powers to superior courts and secondly it maintained the basic structure of hierarchy of Courts in line with the Constitutional mandate.

In this background when we examine Section 43 D of UAPA we find that it places restrictions on bail upon 'Court' without specifying which Court and thus it is believed that it applies uniformly to all courts irrespective of its position in the hierarchy. Thus today ironically the Supreme Court, High Courts and Designated Courts have all the same amount of discretion and a Magistrate or Designated Court could well be interchangeable with a High Court and Supreme Court. The deprivation of wider discretion to higher Courts by the Legislature and Executive was unfortunately accepted by the Judiciary on the ground of that Legislature had the power to legislate in the national interest. My quarrel is not with the power of the Legislature, or, national interest but with the encroachment upon the powers of the Judiciary, the exhibition of trust deficit that the Judges were not worthy of exercising their discretion correctly. I would think by grabbing the powers of the Judiciary, the Legislature seeks to project it as the sole repository of national interest which it is not. Alas this would not have happened had the Constitutional Bench noticed the encroachment in the case of Kartar Singh instead of condoning it. The Constitutional Bench should have rightfully concerned itself with the possibility of unchecked executive misuse. By not doing so it has left people, trapped in a web of lies, to their own fates. I would think by doing so the Judiciary shrugged off its prime responsibility of acting as a check to the excesses of the Govt. and left the common man, to suffer the arbitrariness of the Executive.

Don't we know that countless people have been shamelessly put behind bars under UAPA for giving innocuous public statements and kept behind the bars for as long as 11 years on nebulous charges of conspiracy all in the name of 'compelling State interest'. Some figures of a recent study are important. Reportedly of a total number of persons booked under UAPA 66% are for conspiracy, without any accompanying act of violence. The study also reveals that out of the total number of 386 cases that the NIA is controlling only 74 are non-UAPA whereas rest 312 pertain to UAPA and in 56% cases charge-sheet has not been submitted for 1-2 years. I would think these figures definitely point to an unhealthy trend of witch -hunting which has no legitimate place in a democracy.

In fact this concern of blatant misuse of the 'procedure established by law' is also reflected in a recent speech of Ambassador Richard Mills, Deputy Permanent Representative, US Mission to the United Nations on 12^th January 2021, delivered at the UN Security Council Open Debate on the 20^th Anniversary of Resolution 1373. Excerpt quoted below:

"As colleagues have mentioned history has also shown us over and over again that measures to prevent and counter terrorism that come at the expense of human rights and the rule of law are counter-productive. That is why the United States will continue to object to certain countries' actions to engage in mass detention of religious minorities and members of other minorities, engage in repressive surveillance and mass data collection, and to use coercive population control like forced sterilisation and abortion. Governments, including governments sadly represented in this Council, must not use counter- terrorism as a pretext for stifling freedom of religion or belief and other human rights and fundamental freedoms'.

Thus, I would think, guided by the UN Security Council it is time for the Govt to redeem itself and in national interest repeal UAPA.

Author is a Senior Advocate at Supreme Court of India and Former Judge of Patna High Court. Views Are Personal Only.