Review of UA(P)A Cases in Kerala-Some Reflections.
“It is no doubt true that the duties of the criminal justice system are to bring the culprit to book and to punish him, but it is very often noticed that both the wings of the justice delivery system, namely, police and the Courts are used as instruments by unscrupulous persons and false and concocted cases are instituted to wreck personal vengeance”. --C.l. Sagar (Advocate) vs. MS. Mayawati, and Anr. [Allahabad HC]
The Kerala State Police Chief in his recent press brief has expressed that the police are going to review the cases registered under the provisions of the Unlawful Activities (Prevention) Act, 1967 in the State. This Act has been enacted with a view to regulate the activities of the associations in India. Originally, the Act did not contemplate the control of terrorist organizations or imposition of punishment for terrorist activities. As the terrorist activities around the world increased, India also enacted the law in the year 1985, the Terrorist and Disruptive Activities (Prevention) Act (TADA). This law was given life only for two years initially. Later, extended its life until 1995. By the time, it elapsed in the year 1995, exasperations from the legal, political and civil communities against the way in which the police-both central as well as State-implemented it arose. Tens of thousands of people were arrested and taken into custody illegally. Subsequently, Prevention of Terrorism Act (POTA) came into effect in 2002. There were no significant variations in the POTA from the provisions of TADA. Additional provisions like regulations respecting the interception of communications such as telephone, emails etc. and the provision for establishing the review Committees become part of the POTA.
POTA was also widely misused by the police. The zeal of Police did not live long. The Constitutional validity of the POTA was also challenged before the Supreme Court.
‘The Hindu’ dated July 16, 2004 reported:
“Eminent lawyer Ram Jethmalani said today (on 15, July, 2004, while releasing Peoples’ Tribunal Report.) that his support for the Prevention of Terrorism Act (POTA) was an “important mistake” made by him. He called it a terrifying Act that must be repealed, lock stock and barrel…..”I was a very harsh critic of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and when I was a member of the Rajya Sabha, I made a compassionate appeal to repeal it. But all the arguments I made to discontinue TADA can apply to POTA. I am glad that I have got this opportunity to publicly apologise for supporting POTA,” ….”I did support the enactment of the Act, but I now realise it was a serious mistake. I did not realise that such draconian power should not be given to the investigating agencies and police. This power has been misused and very badly, so much so that the debits balance of the Act overwhelms its advantages. I am glad the new Government is bound by its manifesto to repeal the Act and I believe it shall be fulfilled soon,” he said.”
Thus the POTA was also buried unsung. However, the apparition of POTA and TADA emerged in the form of incorporation of most of the provisions of POTA in the UA (P) Act. The overzealous police operated with more vigor. When the POTA ended and the UA (P) Act was amended to incorporate the subject of terrorism, the only renowned provision therein, section 60, the facility for review of the cases investigated and/or charged did not incorporate in the UA (P) Act. Originally, the Constitution Bench in Kartar Singh v. State of Punjab, directed constitution of Committee to review pending cases for making recommendations to Government for dropping continuing prosecution under TADA. More over the definition of terrorism has been made very wide so as to include the likeliness of committing terror in the public or any section of people. Thus, it has become possible to include any act with in the meaning of ‘terrorist act’ at the ipse dixit of a police officer by writing that the act of the accused was to threaten the people. In every criminal activity threat to people or any section of people is innate. Nevertheless, very few incidents would come within its scope if the law were applied properly adhering to its true spirit, otherwise it would be an injustice to the Legislature.
The investigation and prosecution of any act respecting law and order is mainly within the domain of a State. But it has been settled by the Supreme Court in some cases-Kartar Singh vs. State of Punjab [(1994) 3 SCC 569]People's Union for Civil Liberties and Anr. vs. Union of India (UOI) – that the Parliament has the power to enact these kinds of laws. But the power of investigation and prosecution has been given both to the central police agencies like the CBI and the NIA and the State police. In order to entrust the case to CBI, either the State Govt. or the Constitutional Court has to decide, and to entrust the investigation to the NIA, the Central Govt. has to take a decision as per section 6 of the National Investigation Agency Act, 2008. In any case, the initial registration of FIRis made at the level of the Police Station where the incident occurs. Unless the power of investigation is given to any of the central agencies, the State Police can at any time review the case of its own as in the matter of any ordinary case, before the final report is filed. In addition, the State Government, through the Public Prosecutor concerned, can withdraw the case at any time before the pronouncement of the judgement as provided in section 321 of Cr PC. There lies a vacuum in respect of cases investigated by the NIA. In section 321 it provides for withdrawal of cases investigated by the Delhi Police Establishment. No corresponding amendment is made either in the Cr PC or in the NIA Act to govern this, if investigated by the NIA. even then by applying the principles of section 321 Cr PC the if the case is investigated by the NIA, it can be withdrawn by the orders of the Central government. Whatever may be, the decision to review of cases before the charge sheet is filed is within the powers of the police. The matter respecting the withdrawal of cases of TADA came before the Supreme Court in many a case. In Ayyub Vs. State of Uttar Pradesh the matter was respecting the State Government of UP have decided to withdraw the trial of offences under TADA. As the designated court did not permit it, the appeal filed before the Supreme Court was allowed.
The history of prosecution of terrorist cases in India marks that the lion’s share of cases were ended in acquittal, discharge, or withdrawn as no prima facie casewas made out. It is not unfathomable that the police know, in many of the cases, the provisions of UA (P) Act are incorporated without sufficient scope for it. The political equations in the civic society make the floor for it. It has been held by the Supreme Court in S.K. Shukla and Ors. vs. State of U.P. and Ors. that the POTA cannot be used for the political ends, it is meant for the benefit of the nation so that the terrorist activities do not disturb the sovereignty or integrity of the nation.
As the American Jurist Schaefer says, “The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law” The criminal justice delivery system is not the function of judiciary alone. The contribution of police is very large. Unless the police are fair and reasonable, the system will be ignominious. Let’s hope that the Kerala Police under the its astute leader will make the review of the UA (P) cases registered in Kerala for a better criminal justice delivery.
The writer has worked with National Investigation Agency as Public Prosecutor for four years. His book ‘Counter-Terrorism Laws in India-A Detailed Commentary on the UA (P) Act’, to be published shortly.
This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.