CONTEXT 

• Recent judgment of the Supreme Court of India, has immense potential to reclaim the idea of personal liberty and human dignity.
• In Thwaha Fasal vs Union of India, the Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism.
• This paves the way for a formidable judicial authority against blatant misuse of this draconian law.

BACKGROUND

• In the Thwaha Fasal vs Union of India case from Kerala there are three accused. The third among them escaped.
• The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA).
• During the investigation, some materials containing radical literature were found. There were also leaflets that were allegedly related to Maoist organisations. Thus, the provisions of the UAPA were invoked.
• Accused were charged under Sections 13, 38 and 39 of the UAPA and 120B of the Indian Penal Code (IPC).
  • Section 13 of the UAPA deals with the provision about punishment for unlawful activities.
  • Section 38 deals with “offence relating to membership of a terrorist organisation”.
  • Section 39 deals with “offence relating to support given to a terrorist organisation.”
  • Section 120B of the IPC is the penal provision on criminal conspiracy.
• The two accused were students during their year of arrest, 2019 and there were no allegations of any overt act of violence.
• According to the accused, the charges were an attempt to label them as terrorists, based on the intellectual and ideological inclinations attributed to them.

JUDICIAL TRAJECTORY

• The case had a curious trajectory.
• After initial rejection of the pleas, the trial judge granted bail to both the accused 2020.
• Later in an appeal, the High Court confirmed the bail of one accused while setting aside the bail grant of the other. The matter then reached the Supreme Court.
• The Supreme Court, after a comprehensive examination, upheld the trial judge’s finding that the materials, prima facie, do not show any “intention on the part of both the accused to further the activities of the terrorist organisation”.
  • It found fault with the High Court for not venturing to record, prima facie, findings regarding charges against one of the accused, whose bail was set aside by the High Court.
  • The top court confirmed the bail granted to both the students.

CONCERNS

Hypocrisy of the UAPA

• Section 43D(5) of the UAPA says that for many of the offences under the Act, bail should not be granted, if “on perusal of the case diary or the report (of the investigation) there are reasonable grounds for believing that the accusation is prima facie true”.
  • Thus, the Act prompts the Court to consider the version of the prosecution alone while deciding the question of bail, making grant of bail as an exception under the UAP, contrary to criminal law.
• Further, unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet.
  • Thus, the statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.

Presumption of guilt

• Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused.
  • Section 43E of the Act expressly says about “presumption as to the offences”.

In Zahoor Ahmad Shah Watali case

• The Court said that by virtue of Section 43D(5) of UAPA, the burden is on the accused to show that the prosecution case is not prima facie true.
• As a result in several cases, bail pleas were rejected relying on Zahoor Ahmad Shah Watali, despite the strong indications that the evidence itself was false or fabricated.
• Many intellectuals including Sudha Bharadwaj and Siddique Kappan were denied bail based on a narrow interpretation of the bail provision as done in Zahoor Ahmad Shah Watali.

CHANGE IN THE LANDSCAPE

• The top court has now altered this terrible legal landscape in the Thwaha Fasal vs Union of India case.
• For doing so, the Court relied on a later three-judge Bench decision in Union of India vs K.A. Najeeb (2021).

Union of India vs K.A. Najeeb (2021)

• In K.A. Najeeb, the larger Bench said that even the stringent provisions under Section 43D(5) do not curtail the power of the constitutional court to grant bail on the ground of violation of fundamental rights.

SIGNIFICANCE OF THE JUDGMENT IN THAWAHA FASAL CASE

Liberal interpretation of the law

• The Supreme Court was emphatic and liberal when it said that mere association with a terrorist organisation is not sufficient to attract the offences alleged.
• The court said that unless and until the association and the support were “with intention of furthering the activities of a terrorist organisation”, offence under Section 38 or Section 39 is not made out.
• The court ruled that- mere possession of documents or books by the accused at a formative young age, or even their fascination for an ideology, does not ipso facto or ipso jure make out an offence.
• Thus, the judgment of the Supreme Court in this judgment can act as an effective rebuke against a suppressive regime.
• According to Section 43D(5), jail is the rule and bail is often not even an exception. But the Court, in the Thwaha Fasal case, refused to construct this Section in a narrow and restrictive sense.
  • This analysis to an extent will liberalise an otherwise illiberal bail clause.
  • In the process, the Court has also tried to mitigate the terrible error committed by a two-judge Bench of the Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali (2019) that interpreted the same provision.

CONCLUSION 

• The Thwaha Fasal judgment has, by implication, legitimised the methodology in the Delhi High Court verdict that ventured to examine the content of the charge instead of swallowing the prosecution’s story. 
  • Delhi Riot case– On June 15, 2021, the Delhi High Court granted bail to student activists who were charged under the UAPA for alleged connections with the Delhi riots. 
• It is this judicial radicalism that builds an emancipatory legal tool. 
  • The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.

Reference:

1. https://www.thehindu.com/opinion/lead/a-new-jurisprudence-for-political-prisoners/article37372642.ece