Thwaha Fasal’s judgment on UAPA – UPSC GS2

Summary: In Thwaha Fasal vs Union of India, the Court has deconstructed the provisions of the Unlawful Activities Prevention Act (UAPA). This has great potential to check blatant misuse of UAPA.
What are the details of the case?
In this case, police arrested three accused. Some material containing radical literature was found and the provisions of the UAPA were invoked. These provisions were:
  • Section 38 of UAPA: deals with offence relating to membership of a terrorist organization.
  • Section 39 of UAPA: For support given to a terrorist organization.
  • Section 13 of UAPA for unlawful activities and Section 120B of the IPC on criminal conspiracy.
However, students accused that they were being labelled as terrorists based on their intellectual and ideological inclinations.
What is the SC’s view?
Supreme Court granted bail to both accused.
Offences under Section 38 or Section 39:  SC remarked that mere possession of documents or inclination to any ideology does not automatically make one a terrorist. Unless and until the association and the support were with intention of furthering the activities of a terrorist organisation offence under Section 38 or Section 39 is not made out.
How Thwaha Fasal vs Union of India resolves various issues with UAPA?
  • Presumption of guilt & bail provisions: Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused. This makes it hard to obtain bail.
  • Further, section 43D(5) of the UAPA says that bail should not be granted if there are reasonable grounds for believing that the accusation is prima facie true. UAPA thus permits keeping a person in prison for up to 180 days, without even filing a charge sheet.
  • The Court, while granting bail to the accused, took a progressive step and refused to interpret this Section in a narrow and restrictive sense.
  • This was also a reversal of the previously held stand of SC in the Zahoor Ahmad Shah Watali case. In Zahoor Ahmad Shah Watali, the Court said that by virtue of Section 43D(5) of UAPA, the burden is on the accused to show that the prosecution case is not prima facie true
  • This error has now been corrected by Supreme Court.