Balancing Civil rights and Anti-terror laws

Synopsis: The objective of UAPA is to check terrorism, and its misuse is against the ethos of democracy.

Background:

• Recently, Delhi High Court granted bail to activists who were undertrial for their alleged involvement in the 2020 Delhi riots.
• The judgment is a judicial opposition to the authoritarian regime of the Unlawful Activities (Prevention) Act (“UAPA”).
• Also, the UAPA is one of the most abused laws in India today.

How UAPA is being misused?

1. Firstly, it restricts the right to bail of the accused. Section 43(D)(5) of this Act prevents the release of any accused person on bail if:
   • The court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true (what appears to be true at first).
2. Secondly, the adversarial system of criminal justice causes further delays in overburdened courts.
   • It is based on the testing of evidence through cross-examination.
   • The court considers which side’s evidence is more persuasive.
   • In higher profile cases such as the Delhi riots case, where the record is bulky, trials can take many years. It leaves the accused in prison for years.
3. Thirdly, section 43(D)(5) is against natural justice and rule of law.
   • In ordinary cases, both sides produce evidence and the court cross-examine them. But when Section 43(D)(5) is applied, the court looks at the prosecution’s evidence, which requires that bail be denied.
   • It forces the court to make decisions on guilt or innocence based on one side’s unchallenged story.
   • It deprives individuals of their freedom for years.

That is why in the case of Section 43(D)(5) when police prepare the charge sheet, it is highly difficult to get bail until there are no internal contradictions.

Why the judgment holds significance?

1. Firstly, pendency in courts and increasing burden leaves under-trials in prison.
   • That is why bail is the only safeguard and guarantee of the constitutional right to liberty.
2. Secondly, the Bench of Justices observed that Section 43(D)(5) is against the basic principles of criminal justice.
3. Thirdly, the court suggested that criminal offenses must be specific in their terms, to protect the innocent.
   • To attract the provisions of the UAPA, the charge sheet must reveal factual, individualised, and particular allegations against the individual.
   • It should specifically link the accused to terrorist activities.
4. Fourthly, UAPA applications should be limited to terrorism-related cases only.
   • Court also said “Terrorism” is a term of art, and not a word that can be thrown around loosely.
5. Lastly, the court also highlighted the significance of the right to protest and to dissent

Indian courts have to play an important role in finding a balance between citizens’ civil rights and anti-terrorism legislation. It is the responsibility of the judiciary to keep a check on the executive’s tyranny.

Source: The Hindu