EDITORIAL ANALYSIS : An anti-terror law and its interference with liberty

Source: The Hindu

• Prelims: UAPA, POTA, TADA,, fundamental rights etc
• Mains GS Paper II and III: Parliament-Structure, functioning and conduct of business, fundamental rights-violation and restriction, AFSPA etc

ARTICLE HIGHLIGHTS

• The Division Bench of the Jammu and Kashmir High Court cleared the release of journalist Fahad Shah.
  • Journalist has been granted bail in three cases already
  • The preventive detention orders against him were quashed.

INSIGHTS ON THE ISSUE

Context

Unlawful Activities (Prevention) Act(1967):

• The law aims at effective prevention of unlawful activities associations in India.
• The Act assigns absolute power to the central government, by way of which if the Centre deems an activity as unlawful then it may, by way of an Official Gazette, declare it so.
• It has the death penalty and life imprisonment as the highest punishments.

Key points:

• Under UAPA, both Indian and foreign nationals can be charged.
• It will be applicable to the offenders in the same manner, even if crime is committed on a foreign land, outside India.
• Under the UAPA, the investigating agency can file a charge sheet in maximum 180 days after the arrests and the duration can be extended further after intimating the court.

What was the case?

• He was standing trial for various offenses under
  • Penal Code
  • Foreign Contribution (Regulation) Act (FCRA), 2010
  • Offenses punishable under Sections 13 and 18 of the Unlawful Activities (Prevention) Act (UAPA) 1967.

What was the judgment?

• It partially set aside the order framing charge, as it has found no grounds to charge him for any offenses other than Section 13 of the UAPA, and under the FCRA.
• The Court offered a timely reminder to other courts and law enforcement agencies:
  • The vast interference with liberty permitted under the anti-terror law requires greater, not lesser, circumspection in its enforcement.
• On matters of substantive law(Shah’s counsel argument): The charges under Section 18 were legally unsustainable as the State had not linked his act of publishing an article with terrorist acts punished under the law.
• Government’s response: The article was an act of terror, as it sought to harm ‘property’ in the form of India’s reputation.
• The High Court ruled: To agree with the government would flip criminal law on its head by creating an altogether new offense
  • Treating allegations of defaming the country as terrorism seemed like a bridge just too far to cross.
• On matters of arrest and detention: 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 such as the imaginary bomber
  • It could not become insurmountable obstacles preventing the release of persons such as the shepherd.
• High Court held: Only in cases where a ‘clear and present danger’ is evinced are persons taken into custody.

Issues:

• The use of UAPA to arrest and detain individuals in situations that are either entirely unconnected to actual incidents of violence, or individuals tangentially connected with such incidents, has been well-documented.
• The text of terrorism offenses under UAPA is rather vague, and when read together with the preparatory offense of Section 18
  • It 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.
• There are the procedural recalibrations of the ordinary rules of the game brought about by UAPA.
  • The latter is most apparent in Section 43-D(5) of UAPA: It places an embargo on courts from granting bail if they find that the police materials establish the accusations as ‘prime facie true’.
  • These twin features of the UAPA regime were what contributed to Mr. Shah’s arrest and continued detention.

Way Forward

• The anti-terror law did not extend as far as to punish alleged defamation of the country was not a radical finding.
• The arguments on proportionality by invoking a ‘clear and present danger’ test to restrict arrests are not novel
  • The High Court itself acknowledges the role of prior judicial decisions such as Joginder Kumar on this point.
• What about compensation or damages for wrongful arrest and confinement? The accountability of the state to redress the years that the accused would never reclaim.
• 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.
• The judgment in Fahad Shah and Supreme Court of India’s decision in Vernon Gonsalves: there is no need for revolutionary turns by courts to secure personal liberty in the face of oppressive laws and their enforcement.
  • The path to hold the state accountable can be easily chartered by those willing to do so.
• Justice Rohinton Nariman urged the SC to strike down “the offensive portions of the UAPA”.
• The debate on UAPA needs to be taken beyond the validity of a few select provisions:The law’s very purpose and scope need careful examination.
• The Court must determine whether the breadth and consequences of UAPA are substantially out of proportion to its declared goals.

QUESTION FOR PRACTICE

Naxalism is a social, economic and developmental issue manifesting as a violent internal security threat. In this context, discuss the emerging issues gest a multilayered strategy to tackle the menace of Naxalism.(UPSC 2022) (200 WORDS, 10 MARKS)