Vague Definiton Of ‘Terrorist Act’ Of UAPA Is Capable Of Misuse: Justice Anjana Prakash

INTRODUCTION

• Anjana Prakash, a former Patna High Court judge was speaking at a webinar by CJAR, on the topic "Discussion on DEMOCRACY, DISSENT AND DRACONIAN LAW- Should UAPA & Sedition Have a Place in Our Statute Books?"
• While speaking, she contended that while the anti-terror and national security laws should be used towards the sovereignty and protection of the State, they are being employed for the sovereignty and protection of a political party.
• The retired judge commented that, "These laws cannot be made permissible because of being so vague. The definition of 'terrorist act' in Section 15 of the UAPA is so vague that it is susceptible to misuse. The hallmark of legislation is that it should be definite and must be incapable of misinterpretation. But it is so vague that it can be easily misinterpreted”.

EXPLAINING THE VAGUENESS

• Justice Prakash discussed how ridiculous Section 43D of the UAPA is, as it restricts the Court from granting bail to any person if the case is prima facie true, and Section 43E states that the Court shall presume that the accused has committed the offence, if the contrary is not shown.
• On the other hand, Section 106 of the Evidence Act states that only those facts which are within your special knowledge are need to be proved by you, and otherwise the burden lies on the prosecution.
• When Section 113A of the Evidence Act, dealing with the presumption as to abetment of suicide by a married woman was amended, it did not say that the contrary must be shown to rebut the presumption.
• The courts also said that just because there is a presumption clause, it does not signify that the prosecution is not supposed to discharge its initial burden. That must be necessarily discharged. She explained that once the prosecution does its work correctly, the accused is supposed to show that he is not guilty.
• In order to further explain the vagueness pertaining in the said Act, she said the Section 43D(5) states that if the Court is of the opinion that there are reasonable grounds for believing that the accusation made against the person is prima facie true, then it shall not grant bail on a perusal of the case diary or the report made under Section 173 of the CrPC.
• She pointed out that the Act does not specify which Court it should be. "So when the matter comes to the High Court, does it not have any wider discretion? Not even the Supreme Court? Does the Supreme Court become interchangeable with the Magistrate or the designated Court? This is completely absurd! The entire concept of CrPC is to provide wider discretion to the High Court”, she quoted.
• She commented that whether the legislature can bring in such provisions or not, is not the point here, but whether the Court, as the protector of human rights, is failing in its duty to not think that in future there could be a possibility of misuse, which is visible now. "What we are observing these days is that the High Court does not do anything, and even if the High Court does something, the Supreme Court says 'How come you have done it?', she expressed.

AMENDEMENTS IN UAPA

• Justice Prakash mentioned that the amendments in UAPA were made after the 9/11 attacks happened in the US.
• She indicated that it was in 2008, that the presumption of innocence and other rights were put to stay by an amendment which inserted a preamble citing UN Resolution no. 1373/2001. This was the reason for including terrorist activities in the domestic law.
• She also showed her disappointment in other Resolutions which pertained to the middle-east and sanctions against Osama Bin Laden. She remarked that she had failed to understand how it was relevant in domestic laws.

REFERRED SPEECH OF AMBASSADOR RICHARD MILLS

• She pointed out to a speech by Ambassador Richard Mills, Deputy Permanent Representative, US Mission to the United Nations delivered on 12th January 2021, at the UN Security Council Open Debate on the occasion of 20th Anniversary of Resolution 1373.
• She quoted that history has shown us time and again that measures to prevent and counter terrorism always come at the expense of human rights and the rule of law are counter-productive. The freedom of religion and belief, human rights and other fundamental freedoms must not be used as a counter-terrorism pretext by the Governments.
• She concluded by saying that, the Security Council has come to this decision that there is outright abuse of these provisions and taking refuge behind these high sounding resolutions of the UN.

What do you think of her comments?