Notice to Union govt after former civil servants challenge UAPA in Supreme Court

The Supreme Court on Wednesday issued notice on a writ petition filed by former civil servants challenging the vires and validity of the various provisions of the draconian UAPA.

The petitioners include former IAS officials Wajahat Habibullah, Harsh Mander, Amitabha Pande, Kamal Kant Jaiswal, Hindal Hyder Tyabji, M G Devasahayam, Pradeep Kumar Deb, Baldev Bhushan Mahajan, ex-IPS officer Julio Francis Ribeiro, Ish Kumar, and former IFS officer Ashok Kumar Sharma.

The Bench comprising the Chief Justice of India NV Ramana, Justice DY Chandrachud, and Justice Surya Kant issued notice to the Union Government on the petition and directed that it be tagged along with a similar petition, Live Law reported.

The petition is broadly divided into four parts.

“Part A – dealing with the lack of protection to the rights of individuals who being tried on charges of being ‘terrorists’; Part B – dealing with lack of protection to the rights of individuals charged with carrying out ‘unlawful activities’; Part C – dealing with the process of sanction under Section 45; and Part D – dealing with issues of bail,” reads the petition.

According to the former civil servants, the rate of prosecution in UAPA cases was extremely low and those charged under the draconian law were jailed for long periods of time and some died during their imprisonment. “The proviso to Section 43D(5) (which deals with the restrictions on grant of bail) is arbitrarily used to quell dissent than to achieve the actual objectives of the Act,” they pointed out.

The average rate of conviction in UAPA cases was 2.19%.

“Prosecution under the UAPA is either initiated in bad faith or the quality of the evidence is not sufficient, bringing into question the entire process of independent review prior to grant of sanction,” read the petition.

Though it is not a preventive detention law, the stringency of UAPA provisions, especially with regard to bail, makes it almost akin to a preventive detention law without the protections of Article 22 being available, the petition stated.

The petition went on to say: “The stringent bail provisions contained in the UAPA have created a situation where merely being accused of a crime under the UAPA is considered sufficient to keep a person incarcerated until the lengthy trial process is over. It is submitted this is completely contrary to all principles of criminal jurisprudence and violates the fundamental right contained in Article 21.”

The former civil servants also pointed out there was no definition of “terror” in UAPA. “Accusing a person of having committed a terrorist act, by saying the person ‘struck terror’ cannot be sustained, in the absence of a definition of the word terror.”

After hearing the petition, the Supreme Court issued a notice to the Union government, Live Law reported.

The 64 pages writ petition annexes a copy of the reply given by the Ministry of Home Affairs in Lok Sabha detailing the number of persons arrested and convicted under the UAPA during 2015-2019:

YearNumber of Persons ArrestedNumber of Persons Convicted
2015112823
201699924
2017155439
2018142135
2019194834

The petitnores sought the creation of appropriate redressal mechanisms for persons who face prosecution under the UAPA without having their names published in the Fourth Schedule.

They also asked the top court to direct the Government to set up a redressal mechanism for people accused of carrying out “unlawful activities” to have the same opportunity of clearing their name as is statutorily available under the UAPA to “Unlawful Associations”.

“Direct the Government to set up a suitable scheme for compensating people who are incarcerated under the UAPA and who are eventually acquitted, with the quantum of compensation increasing in proportion to the time spent in jail,” the petition demanded.