Context: Students from Kerala who were charged under provisions of the Unlawful Activities (Prevention) Act (UAPA) for alleged Maoist links have been granted bail by the Supreme Court by setting aside the objections of the National Investigation Agency.
Background

• The case involved students from Kerala, who were pursuing Journalism and Law respectively.
• The police had allegedly seized objectionable printed and written materials from them which include violent exhortations for civil war, in tune with Maoist ideology.
• The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA).
• The provisions of the UAPA were invoked.

Key Provisions of the UAPA
Section 13

• It deals with participating in or inciting unlawful activities.
• It is the provision about punishment for unlawful activities.

Section 38

• Offence relating to membership of a terrorist organisation.
• A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation.

Section 39

• It deals with “offence relating to support given to a terrorist organisation.”

Arguments in favour of the Accused

• Both the accused were students and there were no allegations of any overt act of violence.
• At a formative young age, the accused might have been fascinated by what is propagated by CPI (Maoist).
• There was no prima facie material to show an intention on the part of the accused to further the activities of the terrorist organisation.

SC Observation

• Mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39 of UAPA.
• The association and the support have to be with the intention of furthering the activities of a terrorist organisation.
• Such intention, according to the court, can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organisation.
• Mere possession of documents or books by the accused at a formative young age, or even their fascination for an ideology, does not ipso facto or ipso jure make out an offence, the Court ruled.

Section 43D(5) of the UAPA

• It 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”.
• As opposed to the general criminal law, under the Unlawful Activities (Prevention) Act (UAPA), grant of bail is the exception.
• If the prosecution either through the case diary or through the chargesheet is able to show ‘reasonable grounds’ for believing that the accusation is prima facie true, then the accused “shall not be released on bail”.
• Thus, the Act prompts the Court to consider the version of the prosecution alone while deciding the question of bail.

Concerns

• 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.
• Thus, broad offences included under the UAPA and difficult bail conditions mean individuals can be detained indefinitely even without conviction of the accused.

Presumption of guilt

• National Investigation Agency (NIA) vs Zahoor Ahmad Shah Watali
• 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.
• Many intellectuals including Sudha Bharadwaj and Siddique Kappan were denied bail based on a narrow interpretation of the bail provision as done in Zahoor Ahmad Shah Watali.

Thwaha Faisal v Union of India

• The Court, in Thwaha Faisal, refused to construct Section 43D(5) in a narrow and restrictive sense.
• It has to some extent, liberalised an otherwise illiberal bail clause.

Union of India vs K.A. Najeeb (2021)

• For granting bail in Thwaha Faisal the SC relied on a 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.

Challenges in the interpretation of laws

• The text of the UAPA limits judicial discretion and adjudication. This is more evident in the context of bail.

As part of interpretation, the court usually has two approaches:
Literal Interpretation

• 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 from a human rights angle and tries to mitigate the rigour of the vicious content of the law.
• The former approach is reflected in Zahoor Ahmad Shah Watali and the latter in Thwaha Faisal.

Significance

• In this case, the Court has asserted the primacy of judicial process over the text of the enactment, by way of an interpretative exercise.
• 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.

Road Ahead

• 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.
• Thwaha Faisal vs Union of India thus paves the way for a formidable judicial authority against blatant misuse of the draconian law.