A new jurisprudence for political prisoners

News: The stringent provisions of UAPA have denied bail to many accused. However, Thwaha Fasal’s judgment can now be invoked to release other political prisoners in the country who have been denied bail due to harshness or narrow interpretation of the law.

In Thwaha Fasal vs Union of India, the Court has deconstructed the provisions of the Unlawful Activities Prevention Act (UAPA). This has great potential to check blatant misuse of UAPA.

What are the details of the case?

In this case, police arrested three accused. Some material containing radical literature was found and the provisions of the UAPA were invoked. These provisions were:

Section 38 of UAPA: deals with offence relating to membership of a terrorist organization.
Section 39 of UAPA: For support given to a terrorist organization.
Section 13 of UAPA for unlawful activities and Section 120B of the IPC on criminal conspiracy.

However, students accused that they were being labelled as terrorists based on their intellectual and ideological inclinations.

What is the SC’s view?

Supreme Court granted bail to both accused.

Offences under Section 38 or Section 39:  SC remarked that mere possession of documents or inclination to any ideology does not automatically make one a terrorist. 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.

How Thwaha Fasal vs Union of India resolves various issues with UAPA?

Presumption of guilt & Bail provisions: Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused. This makes it hard to obtain bail.

Further, section 43D(5) of the UAPA says that bail should not be granted if there are reasonable grounds for believing that the accusation is prima facie true. UAPA thus permits keeping a person in prison for up to 180 days, without even filing a charge sheet.

The Court, while granting bail to the accused, took a progressive step and refused to interpret this Section in a narrow and restrictive sense.

This was also a reversal of the previously held stand of SC in the Zahoor Ahmad Shah Watali case. In Zahoor Ahmad Shah Watali, 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

This error has now been corrected by Supreme Court.

What other cases did SC rely upon to reach its verdict?

Court relied on a later three-judge Bench decision in 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.

This was further strengthened in the Delhi riots case as to where HC and SC had both granted bails on similar grounds.

Delhi riots case: Delhi HC granted bail to student activists who were charged under the UAPA for alleged connections with the Delhi riots. But in appeal, Supreme Court held that this judgement shall not be treated as a precedent.

Source: This post is based on the article  “A new jurisprudence for political prisoners” published in The Hindu on 8th November 2021.

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