Explained | UAPA Prosecution Sanction, Process and Interpretations

The Nagpur Bench of Bombay High Court Friday ordered release of former Delhi University Professor GN Saibaba and five others in a UAPA case that accused them of being members and sympathisers of the banned CPI (Maoist). A day later, the judgement was suspended by the Supreme Court.The high court in its decision on the appeals against the conviction held the trial to be "null and void" after ruling that the same took place in the absence of valid sanction under Section 45(1) of the Unlawful Activities (Prevention) Act. The Maharashtra government within hours of the pronouncement challenged the judgement before the Supreme Court. Solicitor General Tushar Mehta, appearing for the State, on Saturday argued that the question regarding sanction was not raised before the trial court.After the hearing, the apex court in the interim order suspended the High Court ruling, saying that the Nagpur Bench has not decided the case on merits. "The offences for which the accused were convicted by the learned trial Court are very serious and if ultimately they are tested by the High Court on merits and on merits the State succeeds and the judgment and order passed by the learned trial Court is upheld, the offences are very serious against the sovereignty and integrity of the country," said the court.As a result, all the convicts will continue to remain in jail. A prayer for keeping Professor Saibaba under house arrest instead of continuing with his incarceration was sternly opposed by the State with Mehta even arguing that such requests were repeatedly coming from "Urban Naxals". The court also was not inclined to allow the prayer at this stage. Live Law looks at the UAPA provisions, the 2008 UAPA Rules and various judicial interpretations of the sanction processSection 45 (1) UAPA Act and 2008 RulesThe anti-terror law, which is often described as draconian for its provisions that make it almost impossible for an accused to secure bail, has been divided into seven chapters. The law was enacted for "more effective prevention of certain unlawful activities of individuals and associations" and "for dealing with terrorist activities". Section 45 of the Act deals with cognizance of the offences mentioned under the law, by a court of competent jurisdiction. It states that no court can take cognizance of any offence under Chapter III - this section relates to unlawful activities and membership of unlawful associations and their funding, without the previous sanction of central government or the officer authorised by it.The provision also deals with the cognizance of offences under Chapter IV and VI - these sections relate to terrorists, their activities and the terror organisations. As in case of Chapter III, Section 45 states that no court can take cognizance of the offences mentioned under Chapter IV and VI without the previous sanction of the central government or state government, depending upon the case. Where the offence has been committed against a foreign government, the sanction of the central government is necessary.Under The Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, the Competent Authority, after receiving the report containing evidence gathered by the investigating officer, is required to make a recommendation to the government within seven days. Thereafter, the government is also required to take a decision regarding sanction of prosecution within seven days after receipt of the recommendations from the authority.The competent authority under the law is required to make "an independent review" of the evidence gathered by the investigating officer and only then make his recommendation for or against sanction to the government.Courts on Sanction ProcessThe division bench of Justices Rohit Deo and Anil Pansare, in the judgement discharging Professor Saibaba and others, asserted that sanction "serves the salutary object of providing safeguard to the accused from unwarranted prosecution and the agony and trauma of trial". Terming Section 45 of UAPA a legislatively-provided additional safeguard, the court said recommendatory report is not binding on the sanctioning authority.However, the court held that the words 'shall' in the 2008 rules is intended only to convey a sense of urgency to the authorities but is not mandatory. The bench clarified that it was not suggesting that the time frame can be violated with impunity. It noted that while any infraction in complying with the deadline does not vitiate the sanction, an accused will have to demonstrate some prejudice or "causation of failure of justice" due to the "failure to adhere to the time frame statutorily prescribed".However, it set aside the entire trial against Professor Saibaba on the ground that Sessions Judge took cognizance of the offences against him, framed the charges and examined the first prosecution witness, in absence of the sanction - which came much later. "The statutory bar is not lifted, and therefore,...

Explained | UAPA Prosecution Sanction, Process and Interpretations

Sofi Ahsan

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