Supreme Court’s Oversight on UAPA & PMLA Misuse Questioned

Senior Advocate Mihir Desai on Court’s Mandate to Protect Rights

Newsreel Asia Insight #142
Feb. 25, 2024

Senior Advocate Mihir Desai voices concerns over the Supreme Court’s hesitation to acknowledge the misuse of laws such as the Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act (PMLA), focusing on the Supreme Court’s recent trends in cases involving civil liberties and political rights.

Desai’s comments were made during a seminar on judicial accountability in Delhi, organised by the Campaign for Judicial Accountability and Reforms, as reported by Live Law.

Desai criticised the Supreme Court for its approach to cases under the UAPA – which allows the government to designate individuals and groups as terrorists, ban organisations and detain suspects for extended periods without bail – and PMLA, which, he argues, stifles dissent and suppresses opposition voices. He pointed to instances where individuals were arrested based on suspicion rather than actual incidents, citing the Bhima Koregaon case as an example.

He highlighted the Supreme Court’s verdict in the Zahoor Ahmad Watali case, which significantly impacted the judicial handling of bail applications under the UAPA. The Supreme Court, led by former Justice A.M. Khanwilkar, set a precedent that narrows the scope of judicial examination at the pre-trial stage to primarily the prosecution’s version of events, without the benefit of being challenged through cross-examination. It places a limitation on the court’s ability to conduct a detailed analysis of the prosecution’s case when considering bail under Sub-section (5) of Section 43D of the UAPA.

The ruling implies that, during bail hearings under the UAPA, courts are restricted from engaging in an extensive scrutiny of the evidence against the accused. Instead, they are to accept the prosecution’s narrative at face value, unless it is prima facie frivolous. This has raised concerns about the potential for misuse of the UAPA, as it makes securing bail significantly more difficult for individuals charged under this stringent anti-terror law.

The verdict is seen as part of a broader trend where judicial standards for granting bail, especially in cases involving national security or terrorism, have become increasingly stringent, reflecting a shift towards prioritising state security over individual liberties in such contexts.

Furthermore, Desai referred to a recent judgment by Justices M.M. Sundresh and Aravind Kumar, which underscored the principle of “jail, not bail” for grave offences under the UAPA, indicating a departure from the traditional maxim favouring bail over jail. The interpretation suggests that the court views the seriousness of the charges under the UAPA as a sufficient reason to limit the accused’s right to bail.

Desai also questioned why the Supreme Court could not take judicial notice of the misuse of the UAPA and PMLA, similar to its recognition of the nexus between money and politics in the Electoral Bonds case. He criticised the Court for its perceived lack of intent to protect civil liberties against executive overreach, including issues related to Kashmir, internet bans and other forms of executive authority.

He further criticised the Supreme Court for deferring to the Solicitor General of India, suggesting that the Court has become overly influenced by the executive branch. His critique suggests that the Court has been overly receptive or deferential to the positions advocated by the Solicitor General, potentially at the expense of judicial impartiality and independence.

“Why does the Supreme Court always bow down to what the Solicitor General of India says? Even though the post of solicitor general is not a constitutional post. Any time somebody raises the issue of Kashmir, he jumps up and says, ‘Oh, we know who they are acting for. They are acting on behalf of our neighbouring nation.’ And the judges do not have the gumption to touch him. They don’t have the guts to tell him, ‘Mr. Solicitor, just sit down, shut up, and sit down.’ That’s what should be done,” Desai was quoted as saying.

Desai emphasised the importance of public pressure and street protests in effecting judicial reforms and urged for a stronger stance against authoritarian tendencies within both the executive and judiciary. Desai is calling for a more assertive judicial approach to safeguarding democratic principles, civil liberties and the rule of law. This includes a judiciary that is willing to challenge executive actions that infringe on individual rights and to uphold the constitutionally mandated separation of powers.