Jammu & Kashmir High Court judge flags "copy-paste" arguments of national security, Pakistan in UAPA bail cases

Justice Atul Sreedharan of the Jammu and Kashmir High Court recently took exception to the trend of "copy-paste" arguments made by the government to oppose the release of those accused in cases under the Unlawful Activities (Prevention) Act (UAPA)..The judge observed that such arguments on national security, radical Islamism and allegiance to Pakistan are resorted to in many UAPA cases, instead of presenting any specific material against an accused person. These general arguments are often made to overawe the Court psychologically, the judge further observed while allowing bail to a man accused in a 2013 UAPA case. "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," stated the opinion authored by Justice Sreedharan in an April 19 order. .In the present case as well, Justice Sreedharan noted that the main focus of the government's submissions included elements of "national security, nationalism, allegiance to Pakistan (of the accused), radical Islamism (as the influence of the accused), secession of Jammu and Kashmir from India and accession to Pakistan (as the goal of the accused) etc."The judge acknowledged that these are relevant aspects while dealing with UAPA cases. However, he added that such general allegations cannot be sole grounds to reject the bail plea of an accused against whom no specific evidence has been found."To be influenced by the often forceful submission of internal security of the State, and to reject a bail application where the State has utterly failed to disclose any material against the accused which could raise a prima facie view of the involvement of the accused as charged by the State, is a sure shot recipe for miscarriage of justice," Justice Sreedharan said..The judge further said that it would lead to the inadvertent, oppressive application of a draconian law if the Court were to only rely on the State's apprehensions about internal security risks without any evidence."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," his opinion stated in this regard..These observations were part of two paragraphs (paras 7 and 8) authored by Justice Sreedharan in a judgment granting bail to the UAPA accused. In a separate concurring opinion, Justice Mohammad Yousuf Wani agreed that the accused man should be released on bail. However, Justice Wani added that he did not agree with Justice Sreedharan's remarks in paras 7 and 8 of the judgment. "Except for the observations made through Paras No. 7 and 8 of the order, I am in agreement with the decision on merits and the conclusion drawn in allowing the appeal and admitting the appellant/accused to bail," Justice Wani said. .The accused man before the High Court was first arrested in 2013 on UAPA charges, but later released after a preventive detention order passed against him was quashed.He remained a free man for around nine years until October 2022, when a chargesheet was filed against him and others co-accused in the UAPA case.After his re-arrest in 2022, a trial court rejected his bail plea. This was challenged by the accused before the High Court. The bail plea was opposed by the State.The allegation against the accused (appellant) and other co-accused was that they used to meet with undertrial persons, who persuaded them to influence youth into joining terrorist activities. A co-accused claimed that they collected money for this purpose and buried the same under a bridge. However, the High Court noted that these statements cannot incriminate the appellant unless the co-accused turned an approver. .The High Court asked the government's counsel to present a statement from at least one independent witness or some material evidence to make out a prima facie case against the appellant. However, no such material was presented."The learned counsel for the Union Territory has had more than an hour’s time to peruse the charge sheet, to pour over the statement of witnesses, but no such material has been forthcoming and so none has been placed before us."The Court eventually allowed the man's release on bail after noting that no prima facie case had been established by the State to justify his re-arrest and imprisonment during the pendency of the UAPA trial..Advocate Sajad Ahmad Geelani appeared for the appellant (accused).Senior Additional Advocate General AR Malik along with Deputy Advocate General Muneeb Wani and advocate Mohammad Younis appeared for the Jammu and Kashmir government. .[Read Order]