Sravasti Dasgupta 
New Delhi: Senior advocate Mihir Desai has questioned why the Supreme Court has refused to take note of the misuse of laws such as the Unlawful Activities Prevention Act (UAPA) and the Prevention of Money Laundering Act (PMLA) while addressing a seminar on the recent trends in Supreme Court’s judicial administration, management and cases concerning civil liberties and political rights in the national capital.
The seminar was held on Saturday (February 24) and was organised by the Campaign for Judicial Accountability and Reforms, in collaboration with The Wire and LiveLaw.
“In order to crush dissent, one of the easiest ways which the government has found is to use UAPA,” said Desai.
“You have a situation where people are being put in, not because of any incident which has happened, but over suspicion. And what is the Supreme Court’s response?”
While referring to the Supreme Court taking note of the nexus between money and politics in the electoral bonds case, Desai asked why it can’t take judicial note of misuse of PMLA and UAPA.
“Why can’t the Supreme Court take judicial notice of the fact that the UAPA is being misused? Why can’t it take judicial notice of the fact that the PMLA is being regularly used? Why do you have to always bow down to what the solicitor general says even though it is not a constitutional post. Anytime someone raises the issue of Kashmir, he jumps up and says ‘we know on behalf of whom you are acting, on behalf of the neighbouring country’. But the judges don’t have the gumption to ask him to shut up and sit down. In the US the Supreme Court is known as the chief justice’s court. In India the Supreme Court should be known as Tushar Mehta’s court. That is the situation we have come to. And nobody has the guts to call him out and say enough is enough.”
Desai was speaking at the second session of the seminar ‘The Supreme Court’s recent trend on cases involving Civil Liberties and Political Rights’.
The issue of civil liberties and political rights has become critical amidst a surge in arrests of activists, journalists, and politicians by central agencies like the Enforcement Directorate, the Central Bureau of Investigation, and the National Investigation Authority on questionable grounds.
The speakers included Justices A.K. Patnaik and Indira Banerjee, former judges of the Supreme Court; professor Mohan Gopal, former director, National Judicial Academy; senior advocates Trideep Pais, Kapil Sibal; and Warisha Farasat, advocate, Delhi high court and Supreme Court.
Pais in his speech said that there is a “new modus” in the kind of FIRs that are coming in.
“There is a new modus in the kind of FIRs we deal with nowadays. There are certain persons who speak in the parliament about something they are outraged by and that is tweeted by some other important person and then carried out by new channels for 3-4 days, by the fourth or fifth day it becomes an FIR. This modus has come to stay. This is the way a UAPA case comes to proceed, this is the pattern which I have gathered,” he said.
While Pais did not take any names, during the monsoon session of parliament, BJP MP Nishikant Dubey cited a report by the New York Times in the Lok Sabha to claim that the Congress leaders, including Gandhi, and news organisation NewsClick had received funds from China to create an “anti-India” atmosphere.
Newsclick owner Prabir Purkayastha has since been charged with UAPA and is in jail.
Pais said those charged under UAPA find it more difficult to get bail than in PMLA or NDPS (Narcotics Drugs and Psychotropic Substances Act ) cases.
Professor Gopal in his speech said at present the judgements on civil liberties and political rights need to be understood in the context of two types of judgements that are being given now-constitutionalist which is ingrained in the Constitution and theocratic judgements where the comes from the belief that we have to go beyond the constitution into religion to give judgements.
Referring to the Ayodhya title dispute judgement and the hijab judgement, Gopal said that the Indian polity where religion has no space, idols are being brought in through these theocratic judgements.
“Imagine an edifice structure – our polity where religion has no space and most sacred foundation is the belief that all power comes from the people, and into that space you are bringing in idols, through these idols through these theocratic judgements. It may take half a century to change, bring down these structures and to construct a new theological state and that construction is going on presently,” he said.
Farasat said that bail jurisprudence and how investigations are taking place especially in the Delhi riots cases, Bhima Koregaon cases or in Newsclick case shows that police are not acting in good faith.
“The moment a client booked under UAPA walks in to my office, we advise that we will move for bail after 6 months, that’s how were are advising now. We are in a very serious situation. We say let’s not do anything until chargesheet is filed. We are starting at a point of loss,” she said.
Referring to the Newsclick case, she said that a “lazy line in The New York Times” has the owner in jail.
“Even when we look at terror cases the Supreme Court does have a tendency to be fair. The jurisprudence of the Supreme Court until recently was about liberty and was leaning towards giving people their liberty no matter what the offence was. I think those days are now gone.”
Sibal in his speech said that it is time to question the genesis of this law of CRPC and IPC which were derived from British colonial laws which were used to quell dissent simply on the grounds of suspicion.
“When the British had this provision that you can arrest anybody on the basis of suspicion-why did they do it? Because they wanted to quell dissent and stop anybody to talk against the British government. How does this provision pass the test of constitutionality?”
“I can suspect anybody. What is the basis? That is subjective. It cannot be objective. There is no procedure to make it objective in CRPC. I have a problem with the genesis of criminal procedure.”
Sibal said in PMLA and ED cases, arrests are made under suspicion and reasons for summons and offences are not disclosed.
“Have I no right to know? I am not talking about cases where there is a murder there are eyewitnesses. In these so called economic offences and offences against the state as in UAPA and PMLA which have draconian provisions which according to me are entirely unconstitutional.”
Justice Patnaik in his remarks said that the most important qualification of a judge is “commitment to civil liberties.”
“Judges should be sensitive. The most important qualification of a judge is the commitment to protect the rights of civil liberties of the individuals. Second, you must have a very independent bar – not only for the executive but also from the judges. Flattery of a judge has to be avoided,” he said.
He added that judges should also read, and added that he had “improved judgements after reading.”