The Supreme Court has held that the timeframe provided for the government to issue sanction for the prosecution of an accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA) is mandatory and cannot be treated as directory or a mere formality [Fuleshwar Gope v. Union of India and Others].
Such deadlines serve as checks and balances to the executive’s powers, the Division Bench of Justices CT Ravikumar and Sanjay Karol observed.
"The UAPA provides for a detailed procedure which is to be followed in granting of sanction and undoubtedly, the same must be followed in absolute letter and spirit ... when a timeline is provided, along with the use of the word ‘shall’ and particularly when the same is in the context of a law such as the UAPA, it cannot be considered a mere technicality or formality," the Bench empahsised.
The Court added that while the UAPA grants the government ample powers to take all measures necessary to implement the anti-terrorism law, the rights of accused persons should also be protected.
In such matters, the executive is expected to work with speed and dispatch, the Court said.
"The timelines mentioned in Rules 3 & 4 of the 2008 Rules are couched in mandatory language and, therefore, have to be strictly followed. This is keeping in view that UAPA being a penal legislation, strict construction must be accorded to it. Timelines imposed by way of statutory Rules are a way to keep a check on executive power which is a necessary position to protect the rights of accused persons. Independent review by both the authority recommending sanction and the authority granting sanction, are necessary aspects of compliance with Section 45 of the UAPA," the Court held.
Notably, government sanction is necessary to prosecute a person under the UAPA. This process involves a two step procedure, which is supposed to be completed within 14 working days according to the Unlawful Activities (Prevention) (Recommendation & Sanction of Prosecution) Rules, 2008 (UAPA rules).
Rule 3 says that after an investigating officer forwards a case (along with evidence collected), an independent authority (appointed by the government) must decide on whether to recommend prosecution under UAPA in such case. This is to be done within 7 working days.
If the authority recommends sanction, the file is forwarded to the government (Central or State), which is then expected to decide on whether to actually grant sanction for prosecution under the UAPA. This decision on the grant of sanction is to be made by the government within 7 working days after receipt of the authority's recommendation.
There was a conflict in opinion over whether this 14-day deadline was mandatory or only directory.
The Bombay High Court and the Jharkhand High Court had interpreted the timeline to be 'directory', whereas, the Kerala High Court interpreted it as being mandatory.
Settling the issue, the Supreme Court has expressed agreement with the Kerala High Court and held that the deadline must be compulsorily followed.
The top court, however, clarified that this ruling would not affect past decisions and would only apply prospectively.
The judgment was delivered on an appeal by a man accused of being associated with a militant outfit, the People’s Liberation Front of India.
The accused man (appellant) claimed that the UAPA sanction issued against him was passed without any application of mind, over two years after the alleged criminal activities.
He also told the Court that the recommendation of prosecution and the ensuing grant of sanction to prosecute him under UAPA came within a day of each other. This reflected that no independent decision was taken, he said.
The Court, however, was not impressed by this, among other, submissions and dismissed his appeal.
"Solely on the ground that the time taken (to grant sanction) was comparatively short or even that other orders were similarly worded cannot call the credibility of the sanction into question," the Court said.
In the same ruling, the Court also emphasised that challenges to the validity of UAPA sanction, if any, should be filed at the earliest and before the trial court.
"However, law does not preclude the same from being challenged at a later stage ... If it is raised belatedly, however, the Court seized of the matter, must consider the reasons for the delay prior to delving into the merits of such objections," the Court added.
Advocate-on-Record Balaji Srinivasan appeared for the appellant.
Additional Solicitor General Vikramjit Banerjee and Senior Advocate Swapurma Chaturvedi appeared for the Union of India.
[Read Judgment]