Guest Post: Sanction to Prosecute under UAPA

(This is a guest post by Gokul K. Sunoj and Navaneeta Manu)

“While the war against terror must be waged by the State with unwavering resolve, and every legitimate weapon in the armoury must be deployed in the fight against terror, a civil democratic society can ill afford to sacrifice the procedural safeguards legislatively provided, and which is an integral facet of the due process of law, at the altar of perceived peril to national security. The Siren Song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of Rule of Law.”

[From Mahesh Kariman Tirki and Ors. v. State of Maharashtra (2022)]

Prior sanction for prosecution is not an uncommon occurrence. Stricter or consequential penal laws have had the safeguard of a filter from State authorities to capture and exclude trivial prosecution. These positions have seen varying degrees of strictness across statute and case-law jurisprudence. Unsurprisingly so, the Unlawful Activities Prevention Act, 1967 (UAPA) – India’s anti-terror legislation - envisions something similar. Logically, one would expect that such stringent and unforgiving formats of prosecution will inevitably mean a more tightly wound filter of prior scrutiny. Yet, following suit of several ill-drafted provisions, the corresponding provision on prior sanction suffers a lack of clarity; ones that have gnawed at the Courts’ valuable hours, conflicting them with one another, and seeding disturbing fissures in case law jurisprudence.

This piece will briefly touch upon a history of sanction requirements in criminal / other legislations, their nature and degree of strictness and other details. It then explores the various case laws that tackled with the nature and strictness of sanction under UAPA. Attempting to smoothen the knots, we also promises a commentary on where a fair construal of the law should – ideally – land a compromise (or lack thereof) in the matter.

General History of the Requirement of Prior Sanction

Prior sanction to prosecute is most often encountered under Section 19 of the Prevention of Corruption Act 1988 (PCA) and under Section 197 of the Code of Criminal Procedure 1973 (CrPC). Decisions by the Supreme Court on Section 197 CrPC affirm that this clause is not a mandatory pre-condition to lodge a complaint [as against Section 17-A of the PCA]. A critical component seems to be that the authority granting sanction must apply its mind to the facts and circumstances of the case. Grant of sanction is not an idle formality and the sanction order must contain enough details to evince the application of mind. 

It is also relevant to note that the sanction-mandate section of the UAPA follows the same template as of Section 50 of the Prevention of Terrorism Act, 2002 and Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987. Examining judicial trends in those erstwhile provisions, in Adambhai Suleman Bhai Ajmeri and Ors. v. State of Gujarat (2011), the Supreme Court observed that in the absence of a proper application of mind on sanction, all subsequent proceedings are rendered invalid and without authority of law. This case refers to an earlier judgment, Rambhai Nathabhai Gadhvi v. State of Gujarat  (1997) (though declared per incuriam in Prakash Kumar v. State of Gujarat for reasons beyond the immediate scope of this article) which tested rigours of the sanction provision within TADA and stated “We must bear in mind that the sanction is not merely for the Designated Court to take cognizance of the offence, but for the prosecuting agency to approach the court for enabling it to take cognizance of the offence […]. Thus, a valid sanction is a sine qua non for a prosecuting agency to approach the court”.

Further, discussions in Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) show that the purpose of a sanction mandate is to guarantee an adequate application of the mind, and a mechanical sanction is defective in law.

With this framework in mind, the discussion that follows will trace a few cases specific to UAPA, while bifurcating into the procedural and merit-based sub-arguments that spin out from the very provisions themselves.

Sanction under UAPA

The UAPA enlists sanction requirements under Section 45, along with Rules 3 and 4 of the Unlawful Activities (Prevention) (Recommendation And Sanction of Prosecution) Rules, 2008 (UAPR). Rule 4 [titled ‘Time limit for sanction of prosecution’], in particular, states that the Sanctioning authority: “shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority.” This seven day limit carves out a procedural-compliance issue – beyond the regular questions of requisite application of mind – not seen elsewhere, and will be dealt with first in this section. Then, validity on merits and content of the sanction will be touched upon.

A. Procedural Compliance

On first blush, both Section 45 and the UAPR use ‘shall’ – leaning towards a mandatory application [refer M. V. Wali Pero v. Fernadeo Lopez (1989)] of the stipulated seven day window. This was confirmed in State of Kerala v. Roopesh (2022) (hereinafter ‘Roopesh’) which stated that for a law that seeks to prosecute in such intensity as UAPA does, where gravity and consequences of punitive measure are significantly high, there may be no deviation whatsoever from the procedural requirements of the law.

At the same time, there is the Bombay High Court in Mahesh Kariman Tirki and Ors. v. State of Maharashtra (2022) (hereinafter ‘Mahesh’) (reversed by the Supreme Court as to the outcome), which seemed to hold the stipulated time limit to be directory in nature. Yet, it must be noted that it wasn’t diluted absolutely; rather, subjective importance was conferred. The judgment mentions that “Albeit directory, the time frame must be substantially complied with” and further that “[…] the effect of gross delay in submitting recommendatory report and according sanction may have to be accorded on a case-to-case basis […]”. The court, while referring to an interpretation of the word ‘shall’ by the Supreme Court in the context of another legislation with statutory time limits, noted that the mandate is not absolute and is subject to modifications on the basis of the consequences that may follow from such decision. The court asserts that the phrase has been implanted with an intention to generate a “sense of urgency”.

Use of the words “gross delay” and “case-to-case basis” would suggest that a reasonable lapse in compliance with time, the determination of which would be requisite a judicial application can cure such an irregularity. In other words, a lapse that the prosecution may be able to reasonably justify will not be considered a defect that vitiates the prosecution in its entirety.

It may be argued, that while Roopesh tends to show compliance with rigours of criminal law in questions of adverse sanctions, it may concurrently run the risk of going counterproductive to the State’s legitimate interest in guaranteeing safety and security to its people. It may be so that a genuine and more precise application of mind can churn out with a reasonable extension in the time window – without affecting the validity of the trial. And because this is hardly a matter germane to uniformity, a subjective assessment to test the reasonableness of action (or lack thereof) may always be advisable.

Disagreeing with Roopesh and aligning in reason with Mahesh, the Jharkhand High Court in Binod Kumar Ganjhu [WP No. 308 / 2022 decided on 30.11.2022] (‘Binod Kumar’) held that it is settled beyond debate that the word 'shall' need not always express mandatory rigour (para 24). That while the timeline may be construed as a "guideline" in the interests of "the liberty of the person", deviations may be permitted. The Court goes on to assert: "it has been held by the Hon'ble Supreme Court that the only principle which governs the criminal justice system is miscarriage of justice."

Binod Kumar also derives on reasoning from the scheme of the CrPC to state that not every irregularity is fatal for a trial – so long as the fundamental rights of an accused are guaranteed. These rights are spelt out to be: "[that] of fair trial in which he has sufficient opportunity to defend himself by cross-examining the prosecution witnesses to bring out falsity in the prosecution case." Beyond that, the court deems, are matters of statutory rights which, in the Court’s opinion "would have no application in the cases of this nature because a criminal prosecution cannot be frustrated on mere technicalities."

A risk with such approach remains the ability of the State to delay sanction – thereby hindering commencement of prosecution – whilst holding the person in custody. One would fear that the lack of a quantification for the words ‘case-to-case’ analysis of a ‘gross delay’ leaves gaping loopholes for the State to exploit. An argument to this effect was raised before the Punjab & Haryana High Court in Manjeet Singh v. State of Punjab (2023) (Manjeet), where the court interpreted the statute to determine if delay in sanction can be held permitted. The colour of the UAPA, the Court ascertains, is clearly to provide procedural safeguards in a scheme of law that is created to curtail fundamental rights and freedoms as emanating from the Constitution. If one were to construe, therefore, that UAPA, and its operative rules are extensions of reasonable, there ought to be a tighter noose around any deviations. Manjeet recognises this necessity and holds that the seven day time limit is sacrosanct and not to be deviated from (para 23), concordant with the view projected in Roopesh. While, the Court refrains from commenting on the vitiation aspect of such a defect; it nevertheless granted interim bail in favour of the accused (para 40), for such reasons as discussed above.

Brief opinions on the issue were also made by the Bombay High Court recently in Surendra v. State of Maharashtra (2023) (Surendra). The Court articulates that the simple test Mahesh employed was to demonstrate (and find) if prejudice was caused as a direct consequence of the delay; without which, it seemed unreasonable to vitiate the trial. Thereby, Surendra leaves it to the trial court to determine if injustice was indeed meted out in light of the delay caused in the same (para 57).

B. Substantial merits

Unsurprisingly, the same cases discussed above also extend jurisprudence to the substantial requirements to be fulfilled. Mahesh was also concerned with the obscurement and blurring of certain, arguably, critical pieces of evidence in the report tabled for sanction before the competent authority. The court emphatically held that "after considering the report" the sanctioning authority must confer paramount importance to due application of mind. The report presented for obtaining sanction must not be a mere ‘communication’ but must be indicative of an independent review of the evidence gathered during the course of the investigation and the recommendation for prosecution arising therefrom.

Binod Kumar and Surendra saw similar contentions. The cases differentiate between non-application of mind and an absolute absence of sanction in itself. Any challenge on an alleged non-application of mind, in the opinion of courts, was to be done at trial. This, in a sense, follows the logical argument that a creature of a statute may be remedied, rectified or resorted to in procedures allowed within the statute primarily.

Conclusion

The dominant position seems to flow from some observations in Binod Kumar. The Court compared sanction jurisprudence under the PCA and held it incompatible in logic with the intent, nature and spirit of the UAPA. While the former was enacted to combat corruption, with the sanction requirement put in place to insulate public functionaries from bogus complaints, the latter was created to combat a matter of such scale that solicits stringent action from the state. The court used the "contextual evidence of seriousness" deduced from Sections 46 and 47 of the UAPA (which allow evidence collected through the interception of communications and bar of civil suits in any proceeding under the Act) to argue that the UAPA is essentially teethed to prosecute with strength. Section 45 requirements of sanction are a necessity to save ‘innocent persons’ from being prosecuted; however, "the negative covenant used under section 45 cannot be stretched too far to render the object behind enacting UAPA superfluous and nugatory."

The conflicting views surrounding the stringency of the mandate is one, like many provisions, that arises from the drafting of the statute. Short of amendments, the only solution is interpretation. We bat in favour of the overall approach adopted in Mahesh, while acknowledging the need for remedies as crafted by the Punjab & Haryana High Court in Manjeet. Courts must develop more clarity on what is 'gross delay' for the sanction requirement not to be rendered meaningless.