No Comments
RaghukulCS
June 18, 2021

Daily Mains Newsletter For UPSC
| RaghukulCS

18 June 2021 - Friday

Index

Mains Value Addition
Mains Analysis
Topic No	Topic Name	Source
1	A judicial pushback to a draconian legal regime	The Hindu
2	Opening the UAPA box	Indian Express

Mains Value Addition

The National Helpline and Reporting Platform provides a mechanism for persons cheated in cyber frauds to report such cases to prevent loss of their hard-earned money

Syllabus—GS 2: Governance

Analysis: –

Reinforcing the commitment of the Modi Government to provide safe and secure digital payments eco-system, the Union Home Ministry under the leadership of the Home Minister Shri Amit Shah has operationalised the national Helpline 155260 and Reporting Platform for preventing financial loss due to cyber fraud.
The National Helpline and Reporting Platform provides a mechanism for persons cheated in cyber frauds to report such cases to prevent loss of their hard-earned money
The Helpline was soft launched on April 01, 2021. The Helpline155260 and its Reporting Platform has been made operational by the Indian Cyber Crime Coordination Centre (I4C) under the Ministry of Home Affairs, with active support and cooperation from the Reserve Bank of India (RBI), all major banks, Payment Banks, Wallets and Online Merchants.
TheCitizen Financial Cyber Fraud Reporting and Management System has been developed in house by I4C to integrate Law Enforcement Agencies and Banks and Financial Intermediaries.

Mains Analysis

A judicial pushback to a draconian legal regime

Why in News?

The Delhi court ruling is a way forward in finding a balance between civil rights and the imperatives of anti-terror laws.

Syllabus—GS 2: FR’s and Judiciary

The judgment of the Delhi High Court granting bail to activists Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha — they have been in jail for over a year (without trial) for their alleged role in the 2020 Delhi riots — is significant for many reasons.
It brings to a close many months of jail time for three people who are yet to be proven guilty of any crime, something that should be anathema to any civilised justice system.
Judgment represents an important judicial pushback to the authoritarian legal regime under the Unlawful Activities (Prevention) Act (“UAPA”).

The root of the issue

UAPA is perhaps one of the most abused laws in India today.
The root of the problem lies in Section 43(D)(5) of this Act, which prevents the release of any accused person on bail if, on a perusal of the case diary, or the report made under Section 173 of the Code Of Criminal Procedure, the court is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”.
It is important to break this down.
India follows the adversarial system of criminal justice, adversarial system of justice is the testing of evidence through cross-examination.
Production of evidence, and cross-examination, involves witnesses, recoveries of incriminating objects, tests of handwriting or voice samples, and many other elements. It constitutes the bulk of a criminal trial.
India, with our overburdened courts and creaking justice system, criminal trials take years, trials can take many years — even a decade or more.

Importance of bail

If an individual is not able to secure bail from the courts, they will languish as under-trials in prison, for the duration of the case, no matter how many years it takes.
Bail, thus, becomes the only safeguard and guarantee of the constitutional right to liberty.
Section 43(D)(5) of the UAPA plays such a damaging role.
Section 43(D)(5) short-circuits that core assumption. For the grant of bail, it only looks at the plausibility of one side’s evidence — that is, the Prosecution’s.
It binds the court to look at only the case diary or the police report, which has not been challenged by cross-examination, and requires that bail be denied as long as the unchallenged prosecution case appears to be prima facie true.

One-sided

Section 43(D)(5), thus, is that it forces the court to make an effective determination of guilt or innocence based on one side’s unchallenged story.
In a democratic polity, which is committed to the rule of law, this is a deeply troubling state of affairs.
Effect of Section 43(D)(5), as one can see, is that once the police elect to charge sheet an individual under the UAPA, it becomes extremely difficult for bail to be granted.

Finer points of the judgment

The H.C. Bench correctly noted that even though Section 43(D)(5) departs from many basic principles of criminal justice, there are other fundamental principles that remain of cardinal significance.
These include, for example, that the initial burden of demonstrating guilt must always lie upon the prosecution; and also, that criminal offences must be specific in their terms, and read narrowly, to avoid bringing the innocent within their net.
The court’s judgment notes that as the UAPA is meant to deal with terrorist offences, its application must be limited to acts that can reasonably fall within a plausible understanding of “terrorism”.
Thus,to attract the provisions of the UAPA — the judgment holds — the charge sheet must reveal factual, individualised, and particular allegations linking the accused to a terrorist act.
There is no act, overt or covert, attributed to the activists that could constitute a terrorist offence. And, importantly, inferences or hypotheticals drawn by the police do not count at the stage of granting bail.
The judgment therefore holds that even prima facie, a case under the UAPA has not been made out, and therefore, there is no question of the application of Section 43(D)(5).
The Delhi High Court’s judgment indicates a pathway forward in the quest for finding a balance between citizens’ civil rights and the imperatives of anti-terrorism legislation such as the UAPA.

Question: –

By scrutinising the police case on its own terms, and according a strict interpretation to draconian legislation such as the UAPA, courts can ensure that civil rights are not left entirely at the mercy of the state.Comment

Opening the UAPA box

Why in News?

Pratap Bhanu Mehta writes: Bail order for Asif Tanha, Natasha Narwal and Devangana Kalita is a welcome effort to prevent our civil liberties from being swallowed up by the black hole of state power.

Syllabus—GS2: Issues related to Fundamental Rights & Legislations

The black box Indian Jurisprudence- UAPA:

The order notes that the definition of Terrorism in Section 15 of the UAPA is vague & has been used as a license to classify all kinds of infractions as a terrorist.
It requires that the state show why the alleged crimes/infractions should not be dealt with conventional offenses laws.
It also points out that a mere law & order problem should not be equated with a terrorist problem.
The order by making a clear distinction between State & Union list in this regard will have implications for federalism in law enforcement matters.
The order lays down at least a general standard for a case to be charged under UAPA.
In particular, it insists that the allegations made against the accused must be backed up by facts, must pertain to individual action & must be specifically framed.
It goes against the current trend of charging up someone based on speculative fact & framing individuals vaguely in a politically motivated manner.
It opens up the important issue of bail.
The UAPA is a Kafkaesque law when it comes to bail.
It prohibits granting bail if there are reasonable grounds for believing that the prosecution’s case might be prima facie true.
For a long time, courts without cross-examination, many times accepted the prosecution’s version.
Even SC made the situation worse by prohibiting courts, during bail hearings, from engaging in a substantial examination of the case merits.
However, the trial court in this order, reiterated that the courts still have a lot of room to subject the govt’s case to scrutiny even in bail hearings.
In this case, the court rightly looked into the nature of the evidence presented by the state & effectively demolished it.
This case gave a good prudential reason for the state not to oppose bail because opposing bail opens up the case to greater scrutiny without the context of a full trial.
It is also a welcome effort to prevent civil liberties from being swallowed by the black hole of state power.
Because UAPA is also a problematic law because it attacks the presumption of innocence
At a time when SC is becoming wobbly on the as fundamental right as habeas corpus, ordinary protest is suppressed or criminalized and the bail is being routinely denied, the order provides relief & hope for constitutional wisdom to prevail.
Though it is a matter of great relief that the tail court has finally released the accused, but it is premature to be optimistic about the direction of civil liberties in India.

Way Forward: –

It has been a recurring theme, that the landmark orders often have little effect on the state or the Judiciary culture.
Sometimes they are a reflection of conscientious judges doing their duty. but more often than not, they have been a illusion that the judiciary will at some point dispense justice.
It is a question of whether the current order has an implication for the travesty of justice being enacted in similar cases.
The bail order has opened up the black box of UAPA jurisprudence that is well reasoned, without histrionics & full of constitutional common sense.
But will the order will be sufficient to wipe off the recent black marks against the judiciary remains to be seen.

Question: –

In any civilized democracy, heads would have rolled but here state will aggressively appeal. The only hope is that SC this time will not let the cause of liberty down. Discuss.