This article has been written by Akhila DV, 4th year law student at National University of Advanced Legal Studies, Kochi, Kerala
India’s anti-terror law has been the pivot of scrutiny for long decades. The stringent provisions in the legislation and numerous counterblast arrests over the decade have vested a state of terror among the population. Though the legislation has transformed from “Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) to Prevention of Terrorism Act, 2002 (POTA)” and submerged into the Unlawful Activities (Prevention) Act,1967 (herein UAPA), indiscriminate arrest and prosecution under the anti-terror law are still at their peak. According to the latest data released by the Ministry of Home Affairs, the arrest under UAPA from 2018 to 2021 has increased to 4690. But the most amusing fact is that only 149 people were convicted under the law, which amounts to a very small proportion of 3.17 per cent of the total arrests. This data shows how frequently the legislation is invoked without adequate grounds and considerations.
However, it would only be partially right to say that this legislation does not have inbuilt mechanisms to reduce the agony of misuse. It has inbuilt mechanisms, especially to prevent wrongful initiation of prosecution. Section 45 of UAPA requires the courts to restrain from taking cognisance of offences under the Act without prior sanction of the appropriate government. A similar safeguard is provided under section 20A of TADA and section 50 of POTA. These provisions act as a salutary safeguard to the accused. But the mere existence of this provision in itself does not warrant a fair trial and limit the vexatious prosecutions. There are multiple hurdles in enforcing this provision to reap the absolute benefit envisaged. This article addresses the issues associated with the provision of sanctions based on the status quo and suggests a few measures to tackle the same.
PRIOR SANCTION: THE LEGAL SAFEGUARD
Section 45 of UAPA lays down that no court shall take cognisance of an offence under chapters III, IV and VI of the Act without the prior sanction of the state government or the central government, as the case may be. These sanctions for prosecution shall be issued after considering the report and recommendation given by the authority appointed by the state or central government to independently review the evidence gathered in the course of the investigation. This procedure shall also be time-bound. If the court takes cognisance of the offence before receiving sanction for prosecution, then it will vitiate the whole trial.
But the question arises as to what if an improper sanction is given? The state has been using this law to silence dissent as the arrest rate of activists and cartoonists are rising more than the terrorists. Though it might seem that the state cannot drag them to court on merely whims and fancies and based on insufficient evidence, because of the sanction provision, then we need to be under the right impression. This is where the state uses improper sanctions to get things done.
PRACTICAL PROBLEMS WITH PRIOR SANCTION PROVISION
Though, at the outset, the legal verbatim of section 45 sounds powerful enough to protect the accused from unnecessary prosecutions, there are many practical challenges associated with the same. Firstly, the lack of application of mind in reviewing evidence and giving recommendations can lead to improper sanctioning. For example, in the case of Sheikh Javed Iqbal vs State of U.P. and Ors. (Cr. Appeal No. 7528/2018, Allahabad HC), two walkie-talkies were recovered from the accused, which was produced before the reviewing authority. Mere possession of a walkie-talkie does not make out any offence per se under the Act. But the authority relied on FIR and Case diary, overlooking other circumstances and facts and recommended the sanction, and the state followed the same. Such improper sanctioning results from the absence of standard guidelines for the authority to review and recommend a sanction. There is no framework which lays down what evidence shall be considered and how the reviewing and recommendations shall be made while dealing with an offence under UAPA, which is serious. Everything is left to the subjective satisfaction of reviewing authority. The state can use this aspect to initiate prosecution of anyone relying on these reports.
Secondly, it is evident that in many cases, the trial court has validated these sanctions by giving importance to the subjective satisfaction of the sanctioning authority. For example, the trial court validated a sanction based on a mere one-page document stating that on perusal of FIR, case diary, witness statement, and evidence gathered, a case is made out against the accused. Therefore, the sanction can be issued (Mahesh Kariman Tirki vs State of Maharashtra, Cr.Appeal No.136/2017, Nagpur Bench). This is because there is no proper direction as to what is acceptable and what is not. It is to be noted that an objective framework is also absent.
Thirdly, in order to review the evidence collected, the documents submitted by the investigation agency also include FIR and case diary. These are the two documents which show the state’s account of the arrest, which cannot be considered as a neutral fact. The perusal of these reports to bridge the gap created by the insufficiency of evidence can also put the accused in a biased footing.
Fourthly, it has been provided that all the procedures must be time-bound. The recommendation and the sanction shall be provided within the prescribed time period. As per Rules 2008, the recommendation shall be made within seven working days from the date of receiving the evidence collected. The sanction shall also be given within seven working days of receiving the recommendation.
The provision is highly important since it decides the number of days an arrested person has to spend in confinement without going for a trial. The major ambiguity in this provision is whether the time is mandatory or directory. Various High Courts have taken differing views to date. The Kerala High Court, in the case of Roopesh Vs State of Kerala, held that since “shall” is used, the provision is mandatory. But a contrary view was taken by Bombay High Court, where it held that time limit is directory in nature; therefore, only substantial compliance is required. There is no apex court decision in this regard. So, the misery of the accused awaiting sanction still exists due to these conflicting stands taken by the High Courts.
These are the major drawbacks and infirmities associated with the prior sanction provision of India’s anti-terror law.
CONCLUSION AND WAY FORWARD
Sanction is a very salutary safeguard that can protect the accused from unwarranted prosecution and the agony and trauma of a trial. It is indisputably a double-edged sword. If properly administered, it can ensure a fair trial for the accused; and at the very same time, it is prone to vulnerabilities which can make it a mere formality, jeopardising a person’s liberty.
Therefore, it is high time that the judiciary addresses the dilemma and enforces the purpose of sanction, given the increasing invocation of UAPA. The primary step towards the same should be laying down guidelines for the reviewing authorities. Since too much discretion harms, a broader objective framework shall be laid down for the reviewing authority to act upon. These must include important considerations in reviewing a case of terrorism. Judiciary shall also put in active efforts into prescribing the standard and the adequacy of the evidence, the weightage that shall be attributed to the evidence, FIR and other documents, etc. This will also provide the Trial Courts the chance to scrutinise the report beyond abstract standards.
As judicial wisdom is different from administrative wisdom, courts shall try to ensure that the review of evidence gathered does not defeat the purpose of sanction by going for irrelevant considerations. This can only be ensured when the reports lay down the reasoning of the recommendation by the authority. Therefore, the courts shall provide guidelines for the authorities to make a detailed analysis of evidence and make a self-explanatory order. Active steps shall be taken by the Apex Court to resolve the dilemma as to the nature of the time period prescribed. Unlike other penal legislations, the imposition of anti-terror legislation results in numerous consequences for the accused. Absence of a mandatory time period will result in a longer period of custody for the arrested person. In the abovementioned ways, the provision of sanction can be strengthened to protect the most valuable rights of the accused, including the right to a fair trial, without jeopardising state interest.
 Dharminder Singh & Ors. v. State of Punjab., MANU/PH/0939/2022.
 Sheikh Javed Iqbal v. State of U.P. & Ors., MANU/UP/1853/2021.
 Mahesh Kariman Tirki v. State of Maharashtra, MANU/MH/3646/2022.