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.
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.