Prosecution Makes “Copy Paste” Arguments About National Security In UAPA Cases To Psychologically Influence Court: Jammu & Kashmir High Court

Justice Atul Sreedharan of the Jammu and Kashmir High Court recently cautioned against being unduly influenced by forceful submissions regarding internal security in the absence of judicially cognizable material against the accused. Citing Voltaire, he said that internal security arguments could become the oppressor's eternal cry if not backed by substantial evidence, leading to the denial of liberty and potential miscarriage of justice.While dealing with a UAPA case, he highlighted that the prosecution reiterates the typical arguments in UAPA cases, emphasizing the heinous nature of the offense and its threat to national security.“The initial and main thrust of the UT's arguments is to make an attempt to psychologically overawe the Court by bringing in elements of National Security, Nationalism, Allegiance to Pakistan (of the accused), Radical Islam – Islamist and Islamism (as the influence on the accused), Secession of Jammu and Kashmir from India and its accession to Pakistan (as the goal of the accused) etc., which this Court acknowledges as elements relevant in a case under the UAPA but which should be supplemental submissions in addition to the material raising a prima facie view that the accused may have committed the offence.”The prosecution had argued that releasing the accused on bail could interfere with the judicial process, influence witnesses, and lead to a repetition of the offenses, thereby jeopardizing the unity and integrity of India.“These arguments are “copy paste” in every case under the UAPA. In fact, experience has shown that the main thrust of the prosecution's arguments is usually on these aspects, rather than the specific material, which appears, against an accused person”, Justice Sreedharan said in his order.Justice Sreedharan noted that these arguments are often repeated in UAPA cases and are used to “psychologically overawe” the court by invoking themes of national security, radicalism, and secessionism. “The question of internal security may be real, or a bogie which the State attempts to compel the Court to believe as real, by impressing upon the Court on aspects of internal/national security and thereby try to get the Court to dismiss the application for bail by contending that the imperatives of internal security demand that the accused remain incarcerated even in the absence of judicially cognizable material against the accused only because there is a suspicion that the accused may be involved in the offence as charged.”While acknowledging the relevance of these elements, the court stressed that they should supplement, not replace, the need for material evidence that creates a prima facie view of the accused's involvement.“An overbearing subliminal belief in the primacy of internal security of the State in the sub conscious mind of the judge, could result in the inadvertent oppressive application of a draconian law resulting in the denial of liberty, unsupported by judicially cognizable material”, Justice Sreedharan said.A division bench of Justice Atul Sreedharan and Justice Mohammad Yousuf Wani recently granted bail to Khursheed Ahmad Lone, an accused under the Unlawful Activities (Prevention) Act (UAPA), setting aside the Special NIA Court's order denying him bail.However, Justice Mohammed Yousuf Wani in his separate opinion disagreed with Justice Sreedharan's observations while agreeing with him on merits of the case.“Except for the observations made through Paras No. 7 and 8 of the order, I am in agreement with the decision on merits and the conclusion drawn in allowing the appeal and admitting the appellant/accused to bail”, Justice Mohammed Yousuf Wani stated in his order.Khursheed Ahmad Lone was initially arrested on April 10, 2013, following the registration of FIR on April 7, 2013 at Police Station Anantnag. The charges included offenses under Sections 13(1)(B), 18, 20, 23, and 40 of the UAPA. Shortly after his arrest, on May 23, 2013, Lone was placed under preventive detention under the Public Safety Act, which was later quashed by the High Court on October 29, 2013. He was released on a personal bond by the Jammu and Kashmir Police, although he remained under arrest for the UAPA offenses.Lone remained at liberty until his re-arrest on October 22, 2022, following the filing of the charge sheet after a prolonged nine-year investigation. The Special NIA Court's order, which denied his bail on September 12, 2023, was challenged, leading to the present appeal.As per the allegations in the FIR, Lone, along with other co-accused individuals, was involved in meetings with certain undertrials who were brought to court for hearings. These undertrials were also detained under the Public Safety Act (PSA). It is further alleged that these undertrials directed Lone and the other co-accused to collect money from people and influence youngsters to engage in terrorism and wage war against the Union of India.Advocate Sajad Ahmad Geelani for Lone presented a medical report dated...

Prosecution Makes “Copy Paste” Arguments About National Security In UAPA Cases To Psychologically Influence Court: Jammu & Kashmir High Court

Amisha Shrivastava

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