Indian Anti-Terror Law
About UAPA:
- The goal of the law is to effectively discourage associations engaged in illegal activities within India.
- The Act gives the central government total authority, enabling it to declare any conduct illegal by the publication of an official gazette if the Centre so decides.
- The harshest penalties are life in prison and the death sentence.
Important points:
- Both Indian natives and foreign nationals may be charged under UAPA.
- It will apply to the criminals in the same way even if the crime is done outside of India, on foreign soil.
- According to the UAPA, the investigating agency has 180 days at most from the time of the arrests to file a charge sheet. After notifying the court, the period may be extended further.
What verdict was it?
- It largely overturned the order framing charge because it could not find any other basis for charging him beyond Section 13 of the UAPA and the FCRA.
- The Court kindly reminded other courts and law enforcement organisations of the following:
- The anti-terror law’s broad permission for interference with liberty calls for more caution in its application, not less.
- Regarding substantive legal issues, Shah’s attorney argued that the State had not shown a connection between his publication of an article and the criminally punishable act of terrorism, making the Section 18 charges legally untenable.
- The government’s response: The piece constituted a terror attack since it aimed to damage India’s reputation, which is its “property.”
- The High Court decided that to support the government would be to create a whole new offence, which would turn criminal law on its head.
- Considering accusations of national disgrace as acts of terrorism sounded like a bridge too far to cross.
- Regarding arrest and custody issues, the High Court asked itself a crucial question:
- Does Section 43-D(5) refuse bail in all cases if the charges are deemed to be “prima facie true”?
- The High Court stated that clauses like Section 43-D(5) were designed to make it difficult for people like the fictitious bomber to be freely released.
- It couldn’t grow into impassable barriers that kept people like the shepherd from being freed.
- The High Court ruled that people are only placed in custody where there is a “clear and present danger.”
Problems:
- It is well-established that UAPA can be used to apprehend and hold people who are either directly or indirectly related to violent acts, or who are completely unrelated to them.
- The UAPA’s definition of terrorism offences is somewhat ambiguous, and when combined with Section 18’s definition of preparatory offence,
- It permits the statute to categorise actions that appear to be harmless by casting an unfathomably wide net.
- like putting an article online as a premeditation or plot device for a terror attack.
- There are the procedural adjustments made to the standard game rules as a result of UAPA.
- The latter is best shown by Section 43-D(5) of the UAPA, which forbids judges from setting bail amounts if they determine that the police records prove the charges to be “prime facie true.”
- Shah’s arrest and prolonged detention were facilitated by these two aspects of the UAPA regime.
The Way Ahead:
- The conclusion that the anti-terror law did not go so far as to punish alleged national defamation was not particularly radical.
- The justifications for proportionality in limiting arrests by applying the “clear and present danger” standard are not new.
- The High Court admits that earlier rulings, like Joginder Kumar, had an impact on this issue.
- What about damages or recompense for unjustified arrest and detention? the state’s responsibility to make up for the years that the guilty could never get back.
- It is but a footnote in that lengthy, largely unremarkable history to use UAPA to portray the claimed defamation of the nation as an act of terror in order to support an individual’s arrest and protracted incarceration.
- The rulings in Fahad Shah and Vernon Gonsalves by the Indian Supreme Court make it clear that courts do not need to take revolutionary stances in order to protect individual liberties against repressive laws and their implementation.
- Those who are willing to take the necessary steps can simply chart the course to keep the state accountable.
- The SC was urged to invalidate “the offensive portions of the UAPA” by Justice Rohinton Nariman.
- The discussion surrounding UAPA must go beyond the legality of a few chosen clauses; rather, the goal and reach of the law itself must be carefully considered.
- The Court must decide if the scope and effects of UAPA are significantly disproportionate to its stated objectives.
