The question of sanction under UAPA: why Bombay HC has acquitted G N Saibaba

Source: The post is based on the article “The question of sanction under UAPA: why Bombay HC has acquitted G N Saibaba” published in the Indian Express on 15^th October 2022.

What is the News?

The Nagpur Bench of Bombay High Court has set aside the conviction of former Delhi University professor, who was sentenced to life imprisonment in 2017 by the sessions court for alleged links with the banned Communist Party of India (Maoist).

The High Court ruled that the trial is “null and void” in the absence of a valid sanction under the Unlawful Activities (Prevention) Act, 1967.

About the case

In 2017, police claimed to have received secret information about active members of the CPI (Maoist) and its front, the Revolutionary Democratic Front. The police charged all six accused with criminal conspiracy to wage war against the Government of India.

In 2017, the sessions court pronounced the accused guilty of charges including unlawful activities, conspiracy, membership and support of a terrorist gang under the UAPA, and criminal conspiracy under the Indian Penal Code.

What is the sanction under UAPA?

Section 45(1) of the UAPA says no court shall take cognizance of any offence under the Act without the previous sanction of the central or state government or any officer authorised by them.

Under Section 45(2), the sanction for prosecution has to be given within a prescribed time only after considering the report by the competent authority. The authority is expected to make an independent review of the evidence gathered by the investigation agency before making a recommendation to the government for the sanction.

In this case, the investigators sent the evidence to the Directorate of Prosecution for an independent review. Based on its report, the additional chief secretaries of the Home Department of Maharashtra granted sanction.

What the High Court said on the sanction under UAPA?

The Division Bench considered the point of invalidity and absence of sanction under UAPA.

The court observed that a) UAPA did not originally cover terrorist activities. Other laws, including the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1987, and the Prevention of Terrorism Act (POTA), 2002, dealt with terrorism until they were repealed or allowed to lapse. Both these laws were criticised for being draconian, and the central government was sensitive to criticism, b) The 2008 amendment to Section 45 of the UAPA specified that sanction to prosecute would be given “only” after considering the independent review of an authority appointed by the government. This ensured an “additional safeguard or filter”.

However, in this case, a) the report by the Directorate “was nothing more than a communication conveying the conclusion in the form of a recommendation”, b) The sessions court had taken cognizance of the offence, framed charges, and examined the first witness even before the sanction. So, the high court set aside the conviction.