How the Kerala government’s appeal to the Supreme Court may dash hopes for the release of UAPA prisoners

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The Government of Kerala appeal to the Supreme Court weeks ago to reinstate charges against an alleged member of the banned Communist Party of India (Maoist) under the Unlawful Activities (Prevention) Act could block a narrow window of release now available to thousands of incarcerated Indians without trial under this draconian law.

In March, the Kerala High Court quashed all charges against TR Roopesh in three cases while considering his petition for review, saying the sanction granted to prosecute him was not valid as it had breached the deadline stipulated under the UAPA (Recommendations and Sanction of Prosecutions) Rules, 2008.

The law only gives the state government seven days after receiving a report on the evidence to decide whether to prosecute a defendant. But Kerala sat on the papers for more than six months. The Kerala High Court pointed out that the delay was unlawful and quashed the UAPA charges against Roopesh.

However, the Communist Party of India (Marxist)-led Democratic Left Front government of Kerala has now approached the Supreme Court, saying the deadline is not binding and does not need to be strictly adhered to. .

If the Kerala government’s plea is accepted by the Supreme Court at its hearing on September 19, it will not affect Roopesh alone. Rather, it will dilute in favor of the state one of the few provisions of UAPA that is helpful to those charged under this strict law.

A measure to prevent abuse

One of the main criticisms of the UAPA law is that it leads to prolonged incarceration of the accused without the use of bail. By NIA against Zahoor Ahmad Shah Watali in 2018, the Supreme Court declared that “bail as a rule” is not applicable in UAPA cases. Prolonged pretrial detention and slow trials mean the process itself becomes a punishment.

In July, the media reported about 121 Adivasis who had to spend five years in prison before being released by a Chhattisgarh magistrate’s court. Cases of defendants found innocent after being incarcerated on UAPA charges for 10+ years are not at all uncommon. Roopesh himself was held without trial for over six years in the cases overturned on appeal by the Kerala government.

Article 45 of the UAPA law stipulates that the offenses mentioned in its chapters 4 and 6 cannot be brought to justice until the government has given its sanction. These chapters cover a range of activities such as supporting terrorist organizations and raising funds for terrorist acts. Article 45 specifies the procedure and the time limit to be followed in order to examine whether the authorization to prosecute can be given.

A recommending authority composed of government officials should be established to conduct an independent review of the evidence gathered during the investigation. The government must take a decision to authorize proceedings after examining the report drawn up by this authority and the file. The prosecution can only continue if such authorization is granted.

This time-limited procedure was included in law through an amendment proposed by the Congress-led United Progressive Alliance government in 2008. Terrorists and Disruptors and the Prevention of Terrorism Act – had also stipulated the need for prior sanction before the opening of a trial.

The lawsuit sanction was designed as a measure to prevent the misuse of such draconian laws. These laws give the police powers that are generally not available in other cases. If left unchecked, the risks of misuse causing serious human rights violations are quite high. This is why these laws stipulate that a prior sanction must be obtained for the knowledge of the offenses by the court.

A protest against the death of Father Stan Swamy in July 2021. The 83-year-old Jesuit priest was arrested and jailed under UAPA in connection with the Elgar Parishad case linked to caste violence that erupted in Bhima Koregaon near Pune on January 1, 2018. Credit: Reuters.

The courts have often interpreted the provision relating to the need to obtain a sanction in the event of a prosecution as the most important in preventing abuse of the law. With each successive law, the sanction procedure has become increasingly independent and rigorous.

Under TADA, the State Inspector General of Police was designated as the sanctioning authority. Yet this has not helped to avoid the systematic violation of human rights. Therefore, under the Prevention of Terrorism Act 2002, this authority was removed from the police establishment and transferred to the government itself. Even then, human rights violations continued to take place. This led to the two-step review and prescription stipulated in the amended UAPA.

The provision to consider whether a prosecution should be allowed is an opportunity to check and see if pre-trial detention is desirable and if the charges are founded. Moreover, the rule of law requires that unnecessary delays be avoided in these cases. Yet this is violated by excessive delays in trial proceedings. This delay is a flagrant violation of the rights of the defendants, committed by the State.

The provision relating to the limitation in time of the granting of a sanction for prosecution is also intended to avoid delays in the trial.

However, the CPM of Kerala has frequently tried to reverse the protests against the UAPA. During Pinarayi Vinayan’s first government, which faced widespread protests over its use of the law in 2017, he said a review of UAPA cases would be carried out. Later, it became clear that this was only the review of evidence by a recommending authority, as stipulated by law.

The party’s actions contradict its professed position of opposition to the UAPA. Even as his government in Kerala attempts to reduce the slim chance of a defendant getting out of the clutches of this draconian law, the party has mounted campaigns across the country to overturn the law.

Thushar Nirmal Sarathi is an Advocate in the High Court of Kerala.



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