The Supreme Court’s judgment alters a terrible legal landscape that has seen the blatant misuse of the UAPA

Context:  A Supreme Court Judgment in Thwaha Fasal vs Union of India on October 28, 2021 has immense potential to reclaim the idea of personal liberty and human dignity. The Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism.

Terror specific legislations in India:

Unlawful Activities(prevention) Act(UAPA), 1967:It empowered appropriate authorities to declare any association as ‘unlawful’ if it is carrying out ‘unlawful activities’. This law was comprehensively amended by ULPA Amendment Act, 2004.

  • It defines a ‘Terrorist act’ – in terms of the intention of the attack, its means employed(such as bombs, lethal substances etc.) and the end result(death, injury, forcing government or damage to critical infrastructure)
  • It defines a “Terrorist organization” as an organization listed in the schedule or an organisation operating under the same name as an organisation so listed.
  • It further provides a mechanism for forfeiture of the proceeds of terrorism apart from providing stringent punishments for terrorism related offences.
  • At present the only Union Legislation dealing specifically with terrorism is the ULPA as amended by the Unlawful Activities Prevention (Amendment) Act, 2004.
  • Limitations:
    • it does not provide for special courts or enhanced powers of investigation and provisions regarding confessions made before police officers.
    • It does not define a ‘terrorist’, rather defines only a ‘terrorist act’ or a ‘terrorist organization’
  • Further it includes the provisions to implement the  Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).
  • 2019 amendment bill: It also defines a ‘terrorist’. It also adds the Nuclear Terrorism Convention OR International Convention for Suppression of Acts of Nuclear Terrorism (2005)

National Investigation Agency (Amendment) Bill, 2019 to amend NIA Act, 2008. Provisions:

  • Scheduled offences: It provides for a national-level agency to investigate and prosecute offences listed in a schedule.  These already included the offences under the Atomic Energy Act, 1962 and UAPA, 1967. The list after the amendment also includes human trafficking, offences related to counterfeit currency or bank notes, manufacture or sale of prohibited arms, cyber-terrorism, and offences under the Explosive Substances Act, 1908.   
  • Special courts: It allows for creation of Special Courts for the trial of scheduled offences
  • Jurisdiction of the NIA: The officers of the NIA have the same powers as other police officers in relation to investigation of such offences, across India. 
    • After the Amendment: NIA will have the power to investigate scheduled offences committed outside India, subject to international treaties and domestic laws of other countries. The Special Court in New Delhi will have jurisdiction over these cases. 

Problems with these acts:

  • Presumption of Guilt: Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused. Section 43E of the Act expressly says about “presumption as to the offences”. In Zahoor Ahmad Shah Watali, earlier even the SC has held that the burden is on the accused to show that the prosecution case is not prima facie true.
  • Near impossibility to get bail: According to Section 43D(5), jail is the rule and bail is often not even an exception.
  • Political prisoners: Often these laws have been applied to curb dissent. On June 15, 2021, the Delhi High Court granted bail to student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha who were charged under the UAPA for alleged connections with the Delhi riots. In an appeal by the Delhi police, unfortunately, the Supreme Court said that the well-reasoned judgment of the High Court shall not be treated as a precedent.
  • Goes against the judicial prudence- if a person is labelled as ‘terrorists merely on the basis of speech and thought’. Rather it should be considered only if such speech gives rise to direct and imminent violence.
  • Jail without accusation: Unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet.
  • Prolonged trial: Thus, the statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.

The Judgement:

  • Thwaha Fasal vs Union of India case from Kerala: Two students out of three were arrested on the UAPA charges by the Kerala police. The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA). During the investigation, some materials containing radical literature were found, which included a book on caste issues in India and a translation of the dissent notes written by Rosa Luxemburg to Lenin. There were also leaflets that were allegedly related to Maoist organisations. Thus, the provisions of the UAPA were invoked.
  • The Supreme Court, after a comprehensive examination, upheld the trial judge’s finding that the materials, prima facie, do not show any “intention on the part of both the accused to further the activities of the terrorist organisation”. The top court confirmed the bail granted to both the students.
  • Mere association with a terrorist organisation is not sufficient to attract the offences alleged. 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, said the Court.
  • Mere possession of documents or books by the accused at a formative young age, or even their fascination for an ideology, does not ipso facto or ipso jure make out an offence, the Court ruled.


  • Change in attitude of the Police: This paves the way for a formidable judicial authority against blatant misuse of this draconian law.
  • Release of Political Prisoners: The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.
  • Burden of Proof: Now some liability is upon the prosecution to supply a proof to keep a prisoner in Jail. The court has built upon Union of India vs K.A. Najeeb (2021) case where a three judge bench had said that even the stringent provisions under Section 43D(5) do not curtail the power of the constitutional court to grant bail on the ground of violation of fundamental rights.

2. There remain delays in the stage where the Central government transfers wages to the workers’ accounts

Context: The author brings out various problems with the MGNREGS

Problems with the MGNREGS:

  • No money left in MGNREGA coffers – as many as 21 of 35 States/UTs have utilised over 100% of their allocated funds under the Mahatma Gandhi Rural Employment Guarantee Scheme (MGNREGS) for FY2021-22.
  • Lower allocation in ratio of GDP: In this year’s Budget, the Finance Minister allocated ₹73,000 crore for the scheme, which was higher than the previous year’s absolute number in Budget allocations, but this amounted only to 2.1% of the Budget expenditure, the lowest outlay in those terms in the last six years.
    • This is despite increased allocation last year: In the previous year, the allocations for MGNREGS were increased by ₹50,000 crore to meet the demand for work, with the Revised Estimates for spending for the scheme going up to ₹1,11,500 crore.
  • Delays in payments: Eight crore MGNREGA wage transactions were pending on Diwali. The People’s Action for Employment Guarantee (PAEG) recently released a tracker with important metrics on MGNREGA implementation. It showed that funds allocation this financial year (FY) is 34% lower than the revised budget allocation of last year. And this year’s funds have been exhausted. 
    • This is despite the MGNREGA ensures employment guarantee.
  • Right to work denied: Civil society activists claim that some workers have been turned away by officials despite the demand for work because of the paucity of funds.
  • Caste based segregations: While 46% of payments to SC workers and 37% for ST workers were completed in the mandated seven-day period, it was a dismal 26% for non-SC/ST workers. The negative impact of caste-based segregation was felt acutely in poorer States such as Madhya Pradesh, Jharkhand, Odisha and West Bengal. 
  • Social Tension: In Rajasthan’s Ajmer, denial of payment has led to social tension as few communities receive payment earlier than others.
  • Decline in Rural consumption: Delays in wage payments could also result in a decline in rural consumption, which plays a vital role in stimulating the economy.
  • Adhaar Payment Bridge System(APBS) has given rise to a litany of complicated problems like misdirected payments and payment failures due to erroneous Aadhaar mapping with the payment software.
  • Misdirected payments happen when one person’s Aadhaar gets linked to somebody else’s bank account. These problems are difficult to resolve even for bank and block officials resulting in increased hardships for workers. These minimally warrant an impartial, independent assessment and audit of the payment systems.

Explaining the Payment process: There are two stages in the wage payment process.

  • In Stage 1, States must electronically send invoices, also called FTOs, to the Central government within eight days of completion of work at a worksite. These invoices contain essential worker details like their names and bank account numbers.
  • Stage 2: The Central government then processes the invoices and transfers wages directly to the workers’ accounts. It is the Central government’s responsibility that must be completed within seven days after Stage 1.
  • Various Provisions:
    • Since Supreme Court orders in 2018, Stage 1 delays have reduced while Stage 2 delays continue.
    • As per the Act, if Stage 1 plus Stage 2 exceeds 15 days, then workers are entitled to a delay compensation for each day’s delay.
  • However, in violation of the Act and the Supreme Court’s orders, no delay compensation for Stage 2 is even being calculated. Instead of ensuring sufficient funds for timely payments, the Central government has repeatedly tinkered with the payment architecture as if payment delays are an artefact of technological hurdles.

Importance of MGNREGS:

  • Acts as an effective substitute in the absence of crop and weather insurance in aiding poor farm households.
  • Helping to provide wages during agrarian crises,
  • It is an avenue for employment during the economic crisis induced by the pandemic and the response,
  • MGNREGS has turned out to be a salve for farm workers and labourers.
  • Rural development: It also has the potential, if works are upgraded suitably, to continue to improve rural development and infrastructure.
  • Way forward:  The delay in the payments by the Central government has created a host of issues. These must be addressed as soon as possible in the times of pandemic induced economic distress.




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