Justice Atul Sreedharan of Jammu and Kashmir and Ladakh High Court has raised concerns over the repetitive and generalized arguments made by the government in cases falling under the Unlawful Activities (Prevention) Act (UAPA).

"..the usual stock arguments that are made in a case under the UAPA that the offence is heinous, it is against the interest of the nation to let the appellant out on bail, that if the appellant is let out on bail, he would interfere with the judicial process and may influence the witnesses and that the appellant would repeat the offences, and that his release would be counterproductive for the unity and integrity of India, have also been advanced. These arguments are “copy paste” in every case under the UAPA," Justice Sreedharan said.

Justice Sreedharan noted that these arguments often lack specific material against the accused and are primarily aimed at exerting psychological pressure on the Court.

Justice Sreedharan made the remarks came while granting bail to an individual accused in a 2013 UAPA case. The Division Bench criticized the common practice of relying on generic contentions related to national security, radical Islamism, and allegiance to Pakistan in opposing bail applications. The Court also emphasized that while these factors are relevant, they cannot be the sole basis for denying bail if no concrete evidence implicating the accused is presented.

"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," Justice Sreedharan said.

According to Justice Sreedharan, the government's tendency to employ boilerplate arguments without substantiating them with factual evidence poses a grave risk of miscarriage of justice. The Court cautioned against blindly prioritizing internal security concerns over individual liberties, stressing the need for a balanced approach in UAPA cases.

The Justice Sreedharan further said, "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."

"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. The words of the French thinker Voltaire on internal security are relevant when he says, "Beware of the words "internal security," for they are the eternal cry of the oppressor","Justice Sreedharan remarked.

The Order by Justice Sreedharan underscored the importance of judicial scrutiny in preventing the arbitrary application of draconian laws. He emphasized that bail should not be denied solely based on apprehensions about internal security risks unless supported by judicially cognizable material.

However, Justice Mohammad Yousuf Wani , also part of the bench, expressed disagreement with Justice Sreedharan's observations in this regard. Justice Wani maintained that while he agreed with the decision to grant bail, he did not endorse the remarks made by Justice Sreedharan concerning the government's arguments.

The case before the Court involved an individual who was initially arrested in 2013 under UAPA charges but later released following the quashing of a preventive detention order against him. After remaining free for nearly nine years, he was re-arrested in October 2022 following the filing of a chargesheet in the UAPA case.

Despite the trial court's rejection of his bail plea, the accused challenged the decision before the High Court. The State opposed the bail plea, alleging that the accused and his co-accused were involved in persuading youth to join terrorist activities and collecting money for the same. However, the Court found that the statements provided by the co-accused were insufficient to incriminate the appellant unless corroborated by independent evidence. Despite ample time provided to the government counsel to present such evidence, none was forthcoming.

While allowing the Appeal, the Court ordered, "The impugned order is set-aside and the appellant is granted bail on the ground that no prima facie case has been made out by the Union Territory to warrant further incarceration of the appellant as an under trial, He shall be released forthwith, subject to furnishing a personal bond of Rs. 50,000/- and one surety of the like amount to the satisfaction of the learned trial court. The appellant shall not leave the territorial jurisdiction of the UT of Jammu and Kashmir without the prior permission of the trial Court and shall remain present as and when required by the I.O."

Cause Title: Khursheed Ahmad Lone v. Union Territory through Police Station Anantnag (Home Department)

Appearance:-

Appellant: Advocate Sajad Ahmad Geelani

Respondent: Advocates A.R.Malik (Sr. AAG), Muneeb Wani (Dy.AG), Mohammad Younis (AC)

Click here to read/download the Order


Justice Atul SreedharanJustice Mohammad Yousuf WaniJammu & Kashmir & Ladakh High CourtUnlawful Activities Prevention Act

Sukriti Mishra