A three-judge bench of the Supreme Court led by Justice M R Shah has overruled three earlier judgments of the court rendered in 2011. The judgments were in the cases of State of Kerala v. Raneef, Arup Bhuyan v. Union of India and Indra Das v. State of Assam. The court, in these cases, said that mere membership in a banned organisation could not make one liable under the Unlawful Activities Prevention Act (UAPA) or Terrorist and Disruptive Activities (Prevention) Act (TADA). According to these verdicts, beyond “mere membership”, the prosecution should allege and prove a “guilty mind” to attract the offences under UAPA or TADA. This is no longer a good law, as now held by the court in the Arup Bhuyan review judgment delivered on March 24.
Mere association with a banned organisation will henceforth amount to an offence under the UAPA. At first blush, this might seem to be a statement of the obvious which is also in tune with the text of the law. Yet, on deeper analysis, the verdict turns extremely illiberal and pernicious as it aids the executive, which has an alarming track record of human rights violations.
As Justice Holmes famously put it, the life of the law is not logic; it is experience. Like the TADA, the UAPA also has a humiliating history. The State has been, in many cases, misusing the legal provisions and trapping the innocent.
Justice Ranganath Misra Commission, in a comprehensive report, found that between May 1985 and March 1993, there were a total of 52,998 arrests under the TADA, and according to the courts which tried these cases, only 434 (0.8 per cent) of the arrestees were found to have related to any kind of terrorist association. This will precisely mean that an autocratic state or the persons running it can make false allegations of membership in a banned organisation to victimise an individual or a group of individuals for political or personal reasons.
Let us recall that in many draconian laws like TADA, POTA and UAPA, conventional principles of criminal law are turned upside down. Unlike the “traditional” system, in the context of many of the stringent legislations of our times, confession before the police or investigating agency becomes evidence in support of the prosecution. The burden on the prosecution to prove the guilt is replaced by the burden on the accused to prove their innocence. Jail, not bail, is the new normal. In such a scenario, the mere allegation of membership supported by the alleged confession (often obtained by duress) can lead to long-term incarceration of human beings, both before and after the trial. Viewed so, the proposition that mere membership is enough to attract the provisions of UAPA can act as an incentive to the abuses of the law. This is the danger in overturning the 2011 verdicts.
There are illustrative cases that expose the rampant misuse of UAPA as well. Two students from Kerala, Allan Shuhaib and Thwaha Fasal, were chargesheeted under the UAPA. As bail was denied, they were in jail for many months. Section 43D (5) of the UAPA says that bail should not be granted if “on a perusal of the case diary or the report (of the investigation) …. there are reasonable grounds for believing that the accusation …. is prima facie true”. This would mean that the version of the prosecution could be the sole basis for denying bail under the UAPA. Again, Section 43E of the UAPA essentially draws a presumption of guilt instead of innocence, thereby drastically deviating from the established principles of criminal law.
The significant point is that a draconian law can have an inherent tendency to limit the court’s discretion in deciding the question of bail or even deciding on the ultimate charges. The task before the constitutional courts, especially the Supreme Court, is to carry out an emancipatory role when faced with the content of the law, which on the face of it, negates the constitutionally guaranteed freedom. In Union of India v. K A Najeeb (2021), the Supreme Court said that when fundamental rights are violated, even the rigour of Section 43D (5) of the UAPA cannot prevent the court from granting bail. In the Thwaha Fasal case that put the students in prison for a long duration, the Supreme Court later said that ideological inclinations do not lead to an inference of offence. The Delhi High Court, while granting bail to the student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, said that participation in public protests could not be termed as incitement for violence as visualised under the UAPA. By that time, the students had been behind bars for a long time.
Not only the draconian laws but even the provisions in the conventional laws are vulnerable to misuse. Take, for example, the provisions on sedition, i.e., Section 124 A of the Indian Penal Code. Many were targeted by the State for comments that were apparently harmless and were an expression of opinion. On May 11 last year, the top court suspended the invocation of the anti-sedition law in India. However, by then, several victims of this law had been penalised. They include student Amulya Leona, folk singer Kovan and many others. In the recent defamation case against Rahul Gandhi, tried by a Surat Court, which led to his disqualification, the offences alleged arose from what he spoke during an election campaign. It demonstrates the fragility of our democracy where even a satire invoked during a public speech could be the reason to nullify the people’s mandate.
Institutions are not abstract entities. Those are run by individuals who, in turn, determine the credibility and legitimacy of the institutions. In Delhi, many cases have been registered in recent times for affixing political postures against the prime minister. The rampant misuse of penal provisions is the most glaring symptom of democratic deterioration.
The courts in India face a great challenge when confronted with legislation that visibly tends to diminish freedom and dignity. We have found few instances where the Supreme Court tried to tackle the potential danger of draconian legal provisions, though belatedly. But in the Arup Bhuyan review judgment, one finds a U-turn as it reflects and strengthens an unhealthy shift towards an illiberal judiciary that encourages an illiberal regime. It is the freedom of the unfree man that matters in a democracy.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(kaleeswaramraj@gmail.com)
(Tweets @KaleeswaramR)