Last week, during the hearing of the Delhi Police appeal against the order of the Delhi High Court granting bail to student-activists Natasha Narwal, Asif Iqbal Tanha and Devangana Kalita, all of them booked , controversially and questionably, under the draconian Unlawful Activities (Prevention) Act (UAPA), the Supreme Court expressed surprised over the manner in which the HC bench had penned 100 pages “discussing all laws” in a bail application.
The bench of Justices Hemant Gupta and V Ramasubramanian, while turning down the impassioned appeal of Solicitor General Tushar Mehta to stay the bail order, said that since the order could have “pan-India ramification” plus the manner in which the High Court had interpreted the UAPA, it would possibly require examination by the Supreme Court.
The bench is right: the matter needs further examination. But, what the SC needs to deliberate upon and decide is the issue of interpretation of some of the problematic clauses of the controversial law, last amended in 2019. The issue of Constitutional validity of such clauses also requires judicial scrutiny.
But, when the SC bench was making its observations with regard to the High Court’s bail order, it was possibly not made aware of the fact that at least two public interest litigations are pending, without further hearing, before the apex court since 2019, where the issue of Constitutionality of the 2019 amendments is under challenge.
However, like many other important cases where the judiciary has to interpret controversial actions of the government and the legislature, these two cases have also been consigned to obscurity.
The last time the Supreme Court heard the matter of Sajal Awasthi versus Union of India, a PIL challenging the amendments, was on September 6, 2019, within days of it being filed. The bench of then Chief Justice of India Ranjan Gogoi and Justice Ashok Bhushan issued notice to the respondents.
There has been no movement in the case since then. At least, the Supreme Court website doesn’t give any indication to this effect. Justice Gogoi, in the meantime, has entered the House of Elders – Rajya Sabha – as a nominated MP.
When controversial amendments in the UAPA were being passed in the Parliament in July 2019, Union Home Minister Amit Shah assured the MPs, who were highlighting the possibility of the amended laws being misused to target the innocent, that the anti-terror law would not be misused. He also asserted that the amended laws would be used only to root out terrorism.
The reason that Shah had to give such an assurance was because several MPs had pointed to the fact that one key amendment was aimed at arming the police to designate individuals as terrorists without ample justification.
Before the amendments took effect, the UAPA empowered the police to dub only associations unlawful and therefore bring them under the ambit of anti-terror laws.
But now any individual could be termed a terrorist. Despite Shah’s assurance, government data shows, a large number of cases continue to be filed under the draconian law. According to an analysis of the use of UAPA since 2014, the Centre for Law and Policy Research, between 2014 and 2019, there was a steady rise in the number of cases under this law.
From 976 cases in 2014 to 897 in 2015, 922 in 2016 to 901 in 2017, the number of cases under UAPA across the country went up to 1182 in 2018.
According to available information, a total of 1,948 people were arrested in 1,226 cases registered under the UAPA in 2019. Guess how many of these were actually convicted? Only 34!
Shouldn’t it worry our top Constitutional court that innocent people, including young students whose only crime seems to be that they have the audacity to raise their voice against the misplaced policies of the government of the day, are dubbed terrorists, jailed for long periods without there being an iota of proof against them? Doesn’t the court feel it must accord primacy to deciding these petitions if only to uphold the principle of innocent until proven guilty?
Doesn’t the court feel it must accord primacy to deciding these petitions if only to uphold the principle of innocent until proven guilty?
What could be of more importance for India’s top Constitutional court than the issue of whether citizens can be unilaterally dubbed terrorists and put in jail without any possibility of bail in at least six months? Or is there a case to be made that the ‘mai-baap sarkaar’ can do no wrong and its word has to be taken as the gospel truth?
The Supreme Court must realise that the High Court bench was right in questioning the Delhi Police action in foisting such cases on young students. By repeatedly reaffirming their faith in our judicial system, the gutsy trio of Natasha Narwal, Asif Iqbal Tanha and Devangana Kalita have raised the stakes for the judiciary. The ball is in your court, Lordships.
The Supreme Court must realise that the High Court bench was right in questioning the Delhi Police action in foisting such cases on young students.
Maneesh Chhibber is a Consulting Editor with India Ahead News. The views expressed in this opinion piece are those of the author.