Today's Editorial

An anti-terror law and its interference with liberty

It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong. - Thomas Sowell

Relevance: GS II and III (Polity and Governance; Internal Security)

• Prelims: Indian Penal Code; Foreign Contribution (Regulation) Act (FCRA), 2010; Unlawful Activities (Prevention) Act (UAPA) 1967.
• Mains: Interpretation and Application of Laws during Governance; Internal Security;

Why in the News?

Recently, in several cases, the Indian Judiciary has made notable observations on the interpretation and application of India’s primary anti-terror statute, in matters of Personal Liberty.

What is the background of the News?

• A judgment made on November 17, 2023, by the J&K High Court cleared the last hurdle for the release of journalist Fahad Shah (journalist of The Kashmir Walla news portal). 
• Charges had been framed by the trial court, and he was standing trial for various offences under the Indian Penal Code and Foreign Contribution (Regulation) Act (FCRA), 2010, as well as offences punishable under Sections 13 and 18 of the Unlawful Activities (Prevention) Act (UAPA) 1967.
• Granting bail to Shah and quashing charges framed against him for offences under section 18 of the UAPA, and IPC sections 121 and 153B, the court observed that while the "act was allegedly done 11 years" ago, the investigating agency has brought no evidence that it provoked people to take up the arms against the State.
• The High Court, also partially set aside the order framing charge, as it has found no grounds to charge him for any offences other than Section 13 of the UAPA, and under the FCRA. 
• While doing so, the High Court made notable observations on the interpretation and application of UAPA, India’s primary anti-terror statute, in matters of Personal Liberty.

National Defamation as terror

• Vagueness in law:

• The use of UAPA to arrest and detain individuals in fact situations that are either entirely unconnected or tangentially connected to actual incidents of violence, has been well-documented. 

• For Example:

• • Section 18 of UAPA: Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates terrorism or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
    • This allows the statute to cast an unimaginably wide net to label seemingly innocent acts such as hosting an article online as a preparatory or conspiratorial act to commit terror.
  • Section 43D (5) of UAPA: It makes grant of bail virtually impossible under UAPA or leaving little room for judicial reasoning. The test for denying bail under the UAPA is that the court must be satisfied that a “prima facie” case exists against the accused.
    • These twin features of the UAPA regime were what contributed to Mr. Shah’s arrest and continued detention.

• Need for circumspection in its enforcement in the anti-terror law:

• • The charges under Section 18 are many times legally unsustainable as the State cannot link the act during trial with terrorist acts punished under the law. 
  • In this case of Fahad Shah, the government sought to argue that publication of the article was an act of terror, as it sought to harm ‘property’ in the form of India’s reputation. 
    • According to the High Court, to agree with the government would flip criminal law on its head by creating an altogether new offence — treating allegations of defaming the country as terrorism seemed like a bridge just too far to cross.

• • The High Court held, both the law enforcement agency as well as the court must apply their mind before exercising their powers of arrest and sanctifying further detention, to ensure that only in cases where a ‘clear and present danger’ is evinced are persons taken into custody.

Arrest and detention

On matters of arrest and detention, the High Court placed before itself an important question: does Section 43-D(5) mathematically deny bail in every case allegations are ‘prima facie true’?

According to the High Court, provisions such as Section 43-D (5) were meant to prevent the easy release of persons. The UAPA law does not provide any specific conditions to be satisfied to grant bail.

• However, both regular bail and bail by default like CrPC are available under UAPA with some alterations under section 43 D of UAPA.

• In case of Regular bail: The Regular Bail in UAPA can be granted by a competent magistrate under section 437 CrPC and by the high court or district and sessions court under section 439 of CrPC.
• In case of Default bail: The provisions for default bail is also available under section 167(2) CrPC read with section 43D(2) of UAPA, after 30 days of police custody and 90 days of judicial custody, subjected to delay in filing of charge-sheet.

Issue of Liberty Deprivations:

• Arbitrarily deprived of Liberty: The Indian state has witnessed a penchant for arbitrary deprivation of liberty since its founding, unwillingly equipping its courts with enough means to try and secure the promise of liberty. 
• Legally deprived of Liberty: Using UAPA to present the alleged defamation of the country as an act of terror to justify the arrest and prolonged detention of a person is only a footnote in that long, rather undistinguished history. 
• What the judgment in Fahad Shah reminds us, as did the Supreme Court of India’s decision in Vernon Gonsalves some months ago, is that there is no need for revolutionary turns by courts to secure personal liberty in the face of oppressive laws and their enforcement.

Shortcomings of the UAPA, 1967: 

The grounds that make the discussed legislation controversial include:

• The UAPA’s most criticized feature is that a person who is arrested can be held for up to 6 months (or 180 days) without submitting a charge sheet. While, under ordinary criminal law, this term is only restricted to three months, after which the detained individual is entitled to bail. 
• The UAPA limits the Right to bail and requires the court to rely on police documents to presume the accused guilty.
• The UAPA has a terrible Conviction Rate. According to data provided to Parliament by the Union home ministry in March this year, 2.2 percent of cases filed under the UAPA between 2016 and 2019 resulted in court convictions.

Way Forward:

• Need for clarification: There is an urgency to verify that Indian laws comply with Constitutional principles as well as international agreements. It is also necessary to verify whether the Judiciary correctly determines the legality of the law’s annoying and abusive bail pre-conditions. 
• Need for monitoring the implementation: Since independence or enactment of the particular laws, they have been purposely turned into a lethal tool for suppressing dissent and have been utilized by governments to justify wicked intentions under the cliche of ‘process set by law.’ 
• Need to analyze arbitrariness: The judiciary needs to be bound by its prime responsibility of acting as a check and balance on the excessive use of the government powers when it comes to the administration of UAPA, 1976, and leave the common man to suffer.

Conclusion:

The path to hold the state accountable can be easily chartered by those willing to do so. All it takes is a commitment to the underlying logic of state action being accountable to questions. The High Court, in Fahad Shah’s case, reminds the powers-that-be, that only the former course of action is blessed by the Constitution.

Mains PYQ

Q. Indian government has recently strengthed the anti-terrorism laws by amending the unlawful activities (Prevention) Act, (UAPA), 1967 and the NIA Act. Analyze the changes in the context of prevailing security environment while discussing scope and reasons for opposing the UAPA by human rights organisations. (UPSC 2019)

Q. Distinguish between laws and rules. Discuss the role of ethics in formulating them (UPSC 2020)

Q. What do you understand by probity in governance? Based on your understanding of the term, suggest measures for ensuring probity in government. (UPSC 2019)