Tag: #UAPA

-Report by Bhavana Bhandari

In the case of Arup Bhuyan v. State of Assam Home Department and anr. 2023 (SC) 234, the Supreme Court ruled on Friday that membership in an organization deemed unlawful by the Central government is sufficient to establish an offence under the Unlawful Activities Prevention Act (UAPA). In the decision, the court reversed its previous ruling from 2011, in which it had concluded that mere membership in a prohibited organization under the Act could not be grounds for conviction unless it was accompanied by some overt violent behaviour. Whereas the Solicitor General of India represented the respondents, Senior Advocate Sanjay Parikh represented the appellants.

FACTS:

In 2011, a two-judge bench comprising justices Markandey Katju and Gyan Sudha Mishra exonerated Arup Bhuyan and Indra Das for the violations of the Terrorist and Disruptive Activities (Prevention) Act (TADA). The judgment was reached relying on an alleged confession statement and that mere membership in a prohibited organization under the Act could not be considered a valid ground for conviction under the Act.

In State of Kerala v. Raneef, the 2011 Bench made the pertinent observation that, among other things, the American Bill of Rights and a few US Supreme Court decisions maintaining that Section 3(5) of the Act cannot be properly interpreted without violating Articles 19 and 21 of the Constitution. Therefore, a person is not necessarily a criminal just because they belong to a prohibited organization until they use violence, inspire others to use violence, or cause a commotion by using violence or inciting others to use violence. “

When the Union Government filed a request for reference in 2014, a two-judge panel composed of Justices Dipak Misra and AM Sapre referred the case to a larger bench. The matter was finally heard on February 8, 2023, and a conclusion was reached on March 24, 2023.

APPELLANT’S CONTENTIONS:

Senior Attorney Sanjay Parikh argued for an intervenor-NGO that in cases involving substantive rights, such as personal liberty, provisos might be read down even when not directly challenged. He argued that as civil freedoms are protected by the Indian and American constitutions, it would be improper to invalidate the orders that are being challenged because they were based on US court decisions.

RESPONDENT’S CONTENTIONS:

Solicitor General Tushar Mehta, appearing as counsel for the Central Government asserted that it was intrinsically difficult to show formal involvement in prohibited organizations since the requirements mentioned were a barrier and a safeguard. The SG further emphasized that under the current structure, terrorist activity might be permitted as long as it wasn’t ostensibly committed under the banner of groups that were outlawed or considered a terrorist.

The Union government and certain state governments contended that the supreme court’s reading of the UAPA cases had effectively read down the aforementioned proviso by referencing the American Bill of Rights, making it more challenging to fight terrorism. The Central Government argued that the Court could not pronounce the contents of an anti-terror law unconstitutionally without first hearing its defences and relying on probable legal abuse.

The Court’s reliance on the Bill of Rights was improper in light of the Supreme Court’s prior decision in Babulal Parate v. State of Maharashtra, which was decided by a five-judge panel. Consequently, American jurisprudence could not be authorized under the constitution as there are not any provisions in the American Constitution that equate to Article 19 Clauses (2) through (6).

JUDGEMENT:

The decision came from a three-bench judge comprising of justices MR Shah, CT Ravikumar, and Sanjay Karol holding the validity of section 10(a)(i) of the Unlawful Activities Prevention Act (UAPA). Since the primary intention of the UAPA act is to prevent certain unlawful activities and penalize people who are members of such unlawful groups under the Act. As a result, Section 10(a)(i) is fully compliant with Articles 19(1)(a) and 19(2) of the Constitution and, as a result, with the purposes of the UAPA.

Another issue that the Court had to address was whether or not sections of central legislation may be read down in a situation where those provisions were not challenged and the central government had not been heard. In this regard, the Court found that the State would suffer severe injury if the same was not heard. The Centre was required to submit arguments to support 10(1)(i) and to establish the goals and objectives. Hence, this Court should not have read down Section 10(a)(i), especially when the Section’s constitutionality was not in doubt.

FINAL WORDS:

The bench stated in its ruling today that the 2011 decisions were made in bail petitions when the constitutionality of the rules was not contested. In addition, past decisions have upheld the constitutionality of the UAPA and TADA. The 2011 pronouncements were also heavily criticized for interpreting the laws without addressing the Union of India.

READ FULL JUDGEMENT: https://bit.ly/3K5riCi

Former Supreme Court judges Aftab Alam, Madan B Lokur, Gopala Gowda, and Deepak Gupta came together for a webinar organized by the non-profit Campaign for Judicial Accountability and Reforms (CJAR) on Saturday over the misuse of anti-terror legislation in India.

Justice Alam said, “When compared to the number of cases registered, the conviction rate drops to 2 percent, while the pendency rate rises to 98 percent.” He believes the Unlawful Activities (Prevention) Act, UAPA has failed the country on two fronts: national security and constitutional liberty, and that such law should be repealed.

Justice Gupta agreed with Justice Alam and expounded on the overuse of the sedition law and UAPA, saying that it has become increasingly harsh over time and should be repealed as soon as possible. Dissent is necessary in a democracy, and draconian rules have no place. In recent years, laws have been utilized to suppress dissent and silence those who pose questions to the government. We need an anti-terror law that solely applies to acts of terrorism and It must not be abused.

According to Justice Gowda, rules like UAPA provide security agencies unrestrained power and the government the opportunity to abuse them. Noting that the UAPA limits judges’ ability to order a judicial review, Gowda claimed that a law that restricts the ability of the courts to issue bail is unconstitutional in itself.

Justice Lokur observed, “In addition to being imprisoned for no reason, the apprehended individuals are subject to “soft torture” in jail. What kind of a society do we seek to build?” He said. “Long incarceration, overcrowding in jails and solitary confinement, lack of sleep and space as well as lack of proper nutrition, sanitation, and medical facilities are the reality of our judicial system. I’ve visited children’s homes where 50 children share a single toilet. Adult correctional facilities may be preferable. Isn’t this, however, a form of torment?”

“The point is whether courts as protectors of human rights are failing in their duty to protect human rights,” said Justice Anjana Prakash, a former Patna High Court judge, and senior advocate. According to the UAPA, the court shall not grant bail. We’ve got an inverted pyramid of discretion. The Supreme Court has wide discretion in issuing orders, although the UAPA limits the discretion of the Supreme Court and High Court. “This is ridiculous,” She exclaimed.

This came after the recent death of Father Stan Swamy, accused in the Bhima Koregoan case. The retired judges were in consensus that the death of the tribal rights activist was an example of how the anti-terror statute was being exploited and it was high time to repeal the archaic law.

-Report by VANESSA RODRIGUES

On Friday, the government of Maharashtra opposed the bail request of activist Sudha Bharadwaj, who was arrested in the Elgar Parishad case of the Mumbai High Court, arguing that he lacked the right of the lower courts. The accusation of jurisdiction is wrong. Sudha Bharadwaj, who has been detained since September 2018, applied for bail because the court hearing the prosecution was initially not authorized to do so.

Advocate General Ashutosh Kumbhakoni argued that although the case was referred to under the Unlawful Activities (Prevention) Act (UAPA), the 2020 investigation was taken over by the National Investigative Agency (NIA) of police. The special court only took over the NIA afterward, he said. Until then, the court of appeal in Pune will be responsible, he added.

Special tribunals will be set up under the NIA to “try” matters investigated by the NIA that “do not include pre-trial hearings,” Kumbhakoni said. “The petitioner’s argument is wrong,” confirmed the Attorney General.

A division bench consisting of Judge SS Shinde and Judge NJ Jamadar will continue hearing the petition on July 23. According to Sudha Bharadwaj, the Pune court that arrested her and eight others in police custody in 2018 did not have the power to hear a UAPA case. His attorney, Yug Chaudhry, argued in previous hearings that a trial judge can only take cognizance of UAPA crimes following specific instructions from the district judge.

Police alleged that “incendiary speeches” held at the Elgar Parishad conclave in Pune on January 1, 2018, led to caste violence at the Bhima Koregaon Breed Memorial in the district, and the conclave was supported by Maoists. Activist Stan Swamy, arrested in the case last year, died in hospital earlier this month.

-Report by MANASWA SHARMA

On Friday, a hearing on plea on habeas corpus filed by Gulfisha Fatima, an accused of offences under UAPA, was adjourned which sought release from Judicial custody by Delhi HC. It was adjourned by a division bench of Justices Naveen Chawla and Asha Menon. It is adjourned to July 5, instead of the court being burdened with heavy load and lack of time for the said plea. The plea will be looked into by the roster bench after vacation.

Fatima was charged under various sections of UAPA for being involved in the riots that happened in North East Delhi from 22.02.2020 to 26.02.2020. She is also accused that she was part of a larger conspiracy behind inciting the Northeast Delhi Riots that took place in February 2020. Fatima also involved Natasha Narwa, Devangana Kalita, and Asif Iqbal who were released from Tihar jail on Thursday by the bail order by Delhi HC on 15 June’20. They are allegedly the masterminds of the conspiracy of the North-East Delhi violence in Feb2020, they are accused of wanting to disturb law and order to National Capital as a reaction to the Citizenship Amendment Act enacted last year.

The Supreme Court of Friday issued a notice in an appeal filed by Delhi Police which challenged the verdict of HC. It said that the impugned judgment shall not be relied on as a precedent by any of the parties before any court. “It is clarified that release of the respondents (Asif Iqbal Tanha, Devangana Kalita & Natasha Narwal) at this stage not interfered with,” it added.

-Report by Saksham Srivastava

The Delhi High Court in its judgments dated fifteenth June found that offences below the Unlawful Activities Prevention Act (UAPA) aren’t made out clear against student leaders Asif Iqbal Tanha, Natasha whale, and Devangana Kalita within the Delhi riots conspiracy case.

In the 3 separate orders delivered permitting the bail applications of Tanha, whale, and Kalita, the court has undertaken a factual examination of the allegations to determine if a prima facie case is formed out against them for the needs of Section 43D(5) of UAPA. However, a judicature bench comprising Justices Siddharth Mridul and Anup Jairam Bhambhani, once a preliminary analysis of the charge sheet discovered that the allegations don’t represent the alleged UAPA offences concerning terrorist activities(Sections 15,17 and 18). Therefore, the division bench aforesaid that the rigor of Section 43D(5) of the UAPA against the grant of bail wasn’t attracted against the accused, and thus they were entitled to grant of bail below the normal principles under the Code of Criminal Procedure.

These 3 student leaders have spent over an amount of 1 year in Tihar jail, even amid the 2 deadly waves of the COVID pandemic. The profit of interim bail on account of the pandemic wasn’t on the market to them as they were defendants below the UAPA. After Natasha narwal lost her father Mahavir narwal to COVID last month, the judicature had granted her interim bail for 3 weeks to perform the observance rites.

-Report by Manaswa Sharma

As the police failed to complete an inquiry within 6monThs of the prescribed period against the journalist Siddique Kappan & 3 others, who were accused of breaching the peace after their arrest on Oct 5/20. The Mathura local court decided to stop the proceedings against them.

Kappan who is a Kerala-based Journalist was arrested with his associates when they were on the way to meet the family of a Dalit girl involved in Hathras case who was raped, murdered, and cremated by UP police in secrecy. They are also activists of the Popular Front of India (PFI), which is a Kerala-based Islamic organization, they were charged with threats to peace by UP police and further booked under sedition, violation of UAPA and IT Act. This year, in April, a charge sheet against 8 of them including Kappan was filed in a local court in Mathura, sub-division Magistrate.

Maant, Ram Datt on Tuesday discharged accused Atikurrahman, Aalam, Kappan, and Masood. They have been discharged from charges under Criminal Procedure Code (CrPc) Sections 151 (Arrest to prevent the commission of cognizable offences), 107 (Security for keeping the peace in other cases), and 116 (Inquiry as to the truth of information). They were in jail since October 7/20 under Sections 153A (promoting enmity between groups), 295A (outraging religious feelings), 124A (sedition), 120B (conspiracy) of IPC, 17/18 of UAPA (raising funds for the terrorist act), and under the IT Act.

Kappan’s family and the Kerala Union of Working Journalists (KUWJ) said that the accusations were false and frivolous. This year in April, the family moved to the Supreme Court pleading that he was being mistreated in a hospital in UP where he was admitted due to Covid-19.

-Report by Saksham Srivastava