Authored by Raju Kumar, a 3rd year student of Chanakya National Law University, Patna.
Abstract
When our pen starts running, we must write with great satisfaction that India enjoys the position of the most Democratic nation in the world and has been given some fundamental rights under the constitution of India. But, in recent times it has been seen that the UAPA is being misused. Earlier, even before the colonial period, such laws that restrict the people from speech and expression were not in such a harsh manner, which is currently prevailing in India. Recently, while dealing with the UAPA Case, the Delhi High Court has interpreted the jurisprudence of UAPA in the favour of the petitioner and has slapped the state on ‘Terror Tag’. This Blog aims to study UAPA with reference to the Fundamental rights and other International laws.
Introduction
On one hand, where India is termed the most Democratic nation in the world and has been given some rights in terms of freedom of speech and expression enshrined under Article 19 of the Indian constitution. On the other hand, the data shows that people are being booked under the ‘Terrorist’ provision for disagreeing with the government. According to the report of the Ministry of Home Affairs, a total of 1226 cases were registered under the Unlawful Activities Prevention Act (herein referred to as UAPA), in 2019. This Blog aims to study the recent judgment of the Delhi High Court, which has given judgment in favour of the rights protection of Fundamental right.
From History, it can be easily found that even during the colonial era when India was under the rule of the British Government, they implemented some laws to restrict the Speech & Expression of the People, and it is a dark part of the Indian Constitution that after Independence these rules have become harsher. Many Freedom fighters were booked under the provision of law for showing their ‘Dissatisfaction’ with the government. When Tilak was booked under the law of Sedition, the Police Officials had to issue a warrant against Tilak from the Magistrate, while in today’s time, the police officials can directly arrest the accused even without the order of the Magistrate.
The Unlawful Activities (Prevention) Act, 1967 (UAPA) is India’s primary anti-terrorism legislation. It is widely used by the government as a political tool to stifle internal dissent. The Purpose of Parliament in enacting UAPA and further amending it in the years 2004 and 2008 was to bring the terrorist activity within its scope, was and could only have been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. It was never the intent nor purpose of the legislature that other offences of the usual and ordinary kind should be covered by UAPA. The task of securing bail in a UAPA trial is onerous, and the courts have often exhibited deference to arbitrary pre-trial protracted incarcerations by the executive.
Removal of the presumption of innocence, reversal of the burden of proof, and circumvention of protection under the Constitution of India (Articles 14, 21, 22), UDHR (Article 10), and the International Covenant on Civil and Political Rights (Article 14.) (2)) is normal Framework under which a trial against a UAPA defendant is taking place in India. The detentions are arbitrary, and the trial takes place in a zone of anomie theorised by Giorgio Agamben, in which not only constitutional standards apply, protection by means of rigorous procedural hurdles, but also rudimentary criminal procedural rules and evidence requirements are severely watered down.
In the present case the Protesters were showing their disagreement with the government, and they were booked under the UAPA law. It is also notable that the Right to Protest is a fundamental right under Article 19 of the Indian Constitution, subject to certain reasonable restrictions.
Every ‘Terrorist’ may be labelled as ‘Criminal’, but it will not be fair and just if we say that every ‘Criminal’ is a ‘terrorist’.
While granting the Bail in the Present case, the Delhi High Court has rightly observed that a provision of law that contains serious penal consequences is vague or widely worded; such provision must be construed narrowly to bring it within the constitutional framework. It must be applied in a just and fair manner. The court has remarked that Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.
This is not the first instance where Courts have come forward to protect the Fundamental rights of the people. In the Judgment of Mazdoor Kisan Shakti Sangathan vs Union of India, the Hon’ble Supreme Court says that legitimate dissent is a distinguishable feature of any democracy. Since people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. Although, the demonstration may take various forms which may be noisy, disorderly, and even violent, in such case it would not fall within the permissible rights under Article 19(1)(a) or 19(1)(b). The Government in such case may even prohibit public meetings, demonstrations, or protests on streets or highways to avoid nuisance or disturbance of traffic but the Government cannot close all streets or open areas for public meetings. Thereby, it will defeat the fundamental right that flows from Article 19(1) (a) and 19(1)(b) of the Constitution.
Conclusion
Although the laws after independence have become harsher than the colonial era, the judiciary, from time to time, has come forward to protect fundamental rights. Even in the present instance, the Delhi High Court has done the same thing and has protected the Indian Constitution from Dilution. It has been construed narrowly to bring it within the constitutional framework.
However, even with a liberal approach, the Supreme Court has ruled that the courts should value the legislative policy against the deposit of bail in the early stages of the process, which means that, as opposed to routine proceedings, courts exercise their constitutional jurisdiction to protect rights Article 21 and may only use it as a remedial measure if there is already a violation of Article 21. However, if future constitutional courts can often read about the robust protection of Article 21 in UAPA trials that would otherwise bypass even the most primitive natural justice and procedural safeguards, This decision by the Supreme Court in the Union of India vs. K. Najeeb case could turn out to be the axis around which the reform and humanisation of the Indian criminal justice system are taking place.