The Definition of "Terrorist Act" in UAPA Is So Vague That It Is Susceptible To Misuse: Justice Anjana Prakash

The Supreme Court Senior Advocate was speaking at a webinar by CJAR- "Discussion On DEMOCRACY, DISSENT AND DRACONIAN LAW- Should UAPA & Sedition Have A Place In Our Statute Books?"

"These laws cannot be permissible because they are so vague. The definition of 'terrorist act' in section 15 of the UAPA is so vague that it is susceptible to misuse.

The hallmark of legislation is that it should be definite and incapable of misinterpretation. Here, it is so vague that it is misinterpreted. A person who says a cow's urine is not good for COVID is also put behind bars", commented the retired judge.

Quipping in a lighter vein that the term "chronology" is very popular these days (in context of its usage by Union Home Minister Amit Shah), Justice Prakash indicated how from the UN Human Rights Declaration of 1948, to the Indian Constitution, to the International Covenant on Civil and Political Rights in 1976, to now the principles of the presumption of innocence and protection against self-incrimination, being the right to silence, have been sustained. "The presumption of innocence must not be dislodged. Presumption of innocence, right to silence and burden of proof on prosecution- these are principles of criminal jurisprudence which we must understand in the case of the UAPA. And the fourth principle is that the higher the punishment, the greater the burden of the prosecution", she explained.

Justice Prakash canvassed how an absurd ramification results in as much as section 43D of the UAPA restricts the court from granting bail to the person if the case is prima facie true, and section 43E itself states that the court shall presume, unless the contrary is shown, that the accused has committed such an offence. "'Unless the contrary is shown'? Who is supposed to show this? Obviously the accused! But section 106 of the Evidence Act says that only those facts which are within your special knowledge need to be proved by you, and otherwise the burden is on the prosecution! When section 113A of the Evidence Act was amended, which deals with Presumption as to abetment of suicide by a married woman, it did not say that the contrary is to be shown to rebut the presumption. It only said that once the prosecution has proved its case, it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, then the Court has to presume that such suicide had been abetted by her husband or by a relative of her husband. The courts have already said that just because there is a presumption clause, that does not mean that the prosecution is not supposed to discharge its initial burden! That has to be necessarily discharged. Once that is done, only then the onus or burden of proof would be shifted. Once the prosecution does its work, the accused is supposed to show that he is not guilty. It is not proper in an adversarial system! It cannot be done! It is absurd!", explained the judge.

In as much as the proviso to section 43D(5) says that the Court shall not grant bail if on a perusal of the case diary or the report made under section 173 of the CrPC, it is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true, Justice Prakash pointed out that the Act does not specify which court it is. "So when the matter comes to the High Court, it does not have any wider discretion? Nor does the Supreme Court? So the Supreme Court becomes interchangeable with the magistrate or the designated court? This is absurd! The High Court has to have wider discretion! That is the entire concept of CrPC. When the new Code came, they bifurcated bail into 2 parts- one as regards the magistrate and one as regards the sessions judge and the High Court!", explained the judge.

Justice Prakash remarked that the point is not whether the legislature can bring in such provisions or not, but whether the court, as the protector of human rights, is failing in its duty to not think that in future there could be a possibility of misuse, "which we are seeing now". "What we are seeing is that the High Court does not do anything, and if the High Court does something, the Supreme Court says 'How come you have done it?' This is absurd! What happens to the protection of civil rights? The Executive can commit excesses but the court will not be able to come to your rescue?", she expressed.

Justice Prakash indicated that the amendments in UAPA came after the 9/11 happened in the US; that in 2008, the presumption of innocence and other rights were put to rest by an amendment which inserted a preamble citing UN Resolution no. 1373/2001 which was the reason for including terrorist activities in the domestic law. It also mentioned a number of other Resolutions which pertained to the middle-east and sanctions against Osama Bin Laden. "How is it relevant in domestic laws, I fail to understand!", remarked Justice Prakash.

Finally, she indicated a recent speech of Ambassador Richard Mills, Deputy Permanent Representative, US Mission to the United Nations on 12th January 2021, delivered at the UN Security Council Open Debate on the 20th Anniversary of Resolution 1373. She quoted the following excerpt from the same: "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"

"So the Security Council has also come to this conclusion that there is blatant abuse of these provisions, taking refuge behind these high sounding resolutions of the UN! This is what is happening and nobody raises a question! But how come the Court has failed?", concluded Justice Prakash.