Context

In Thwaha Fasal vs Union of India, the Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism. This paves the way for a formidable judicial authority against blatant misuse of this law.

Background of the case

• In this case from Kerala, there are three accused.
• The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA).
• During the investigation, some materials containing radical literature were found, which included a book on caste issues in India and a translation of the dissent notes written by Rosa Luxemburg to Lenin.
• Thus, the provisions of the UAPA were invoked.
• After initial rejection of the pleas, the trial judge granted bail to both the accused in September 2020.
• The Supreme Court was emphatic and liberal when it said that mere association with a terrorist organisation is not sufficient to attract the offences alleged.
• 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, said the Court.

Issues with UAPA

• Section 43D(5) of the UAPA says that for many of the offences under the Act, bail should not be granted, if “on perusal of the case diary or the report (of the investigation), there are reasonable grounds for believing that the accusation is prima facie true”.
• Thus, the Act prompts the Court to consider the version of the prosecution alone while deciding the question of bail.
• Unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet.
• Prevents examination of the facts: The statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.
• Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused.
• 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.
• The proposition in Zahoor Ahmad Shah Watali is that the bail court should not even investigate deeply into the materials and evidence and should consider the bail plea, primarily based on the nature of allegations, for, according to the Court, Section 43D(5) prohibits a thorough and deeper examination.
• The top court has now altered this terrible legal landscape.

Key takeaways from the judgement

• The text of the laws sometimes poses immense challenge to the courts by limiting the space for judicial discretion and adjudication.
• The courts usually adopt two mutually contradictory methods in dealing with such tough provisions.
• One is to read and apply the provision literally and mechanically which has the effect of curtailing the individual freedom as intended by the makers of the law.
• In contrast to this approach, there could be a constitutional reading of the statute, which perceives the issues in a human rights angle and tries to mitigate the rigour of the content of the law.

Conclusion

The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.

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