New Delhi: Putting an end to conflicting interpretations by various high courts on whether the timelines to grant sanction under the Unlawful Activities (Prevention) Act (UAPA), 1967 are mandatory or not, the Supreme Court ruled Monday that the timelines given under Rules 3 & 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 have to be strictly followed.
A bench of justices C.T. Ravikumar and Sanjay Karol ruled, “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.”
The court also said that timelines imposed by way of statutory rules are a way to keep a check on executive power and are necessary 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, it added.
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What UAPA rules say
Rule 3 of the 2008 rules lays down timelines for a central government-appointed authority to make recommendations to the Centre within seven days of the investigating officer (IO) gathering evidence. Meanwhile, Rule 4 allows the Centre to decide on the sanction for prosecution within seven days of receiving the government-appointed authority’s recommendations.
Both these rules closely relate to and derive their validity from Section 45 of the UAPA Act, 1967, which disallows courts from taking cognisance of offences under the Act without the previous sanction of the Centre, state government, or any officer authorised by it.
Essentially, the rules provide a seven-day period within which the concerned authority is to make its recommendation based on materials gathered by the IO, and a further seven-day period for the government to grant sanction for prosecution, having considered the report of the authority.
How the case reached the top court
In the present case, the court was acting on a petition filed by one Fuleshwar Gope, challenging an order of the Jharkhand High Court from 21 March, 2023.
A two-judge bench had refused to set aside a 2018 suo motu letter concerning the investigation of the case, along with a 2020 sanction letter for prosecuting Fuleshwar and a 2020 cognisance order under section 120B of the Indian Penal Code (IPC) (criminal conspiracy).
The 2020 cognisance order mentioned sections 17,18, 21 and 22 of the UAPA, and Section 17 of the Indian Criminal Law Amendment Act, 1908, which relate to the punishment(s) for raising funds for a terrorist act, conspiracy, holding proceeds of terrorism, threatening witnesses, and becoming a part of unlawful associations or assisting their operations in any way, respectively.
It was alleged that Fuleshwar, an associate of the People’s Liberation Front of India (PLFI), was aware of the fact that his associate Dinesh Gope, the chief of PLFI, was a terrorist who collected money through extortion and criminally conspired to form an unlawful association with PLFI members.
It was also alleged that these associates had formed a company by the name of Shiv Shakti Samridhi Infra Pvt. Ltd., and this company’s account was used to collect funds from sources for the activities of PLFI on the directions of Dinesh.
In 2016, an FIR was registered at Bero, Jharkhand against six persons under various sections of the IPC, the UAPA and the Indian Criminal Law Amendment Act, 1908 on the allegation that Rs 25.83 lakh of demonetised currency was brought to the State Bank of India (SBI) by Dinesh.
In 2017, a chargesheet was filed and the district court took cognisance of it. After two months, the deputy commissioner of Ranchi sought sanction to prosecute, which was granted by the principal secretary of the Department of Home, Jail & Disaster Management, Jharkhand.
Subsequently, the Ministry of Home Affairs (MHA) issued a transfer order in 2018, and the FIR was re-registered as a case under the National Investigation Agency (NIA). The MHA further initiated suo motu sanction in 2019 against twelve people.
The same year, the NIA filed its chargesheet, naming Fuleshwar—the main appellant in this case—a witness for the prosecution. On 5 November, 2019, a special judge of the NIA took cognisance of the same.
Following this, in July 2020, Fuleshwar was arrested and suo motu sanction was issued against seven more persons. A day later, a supplementary chargesheet was filed under the UAPA.
Two years later, Fuleshwar moved the Jharkhand High Court for quashing the 2020 sanction order and the framing of charges order in 2021. Contending that the sanction order should be vitiated on account of violating the 14-day timeline, he argued that the requirement of “independent review” under Section 45, while giving sanction, wasn’t complied with, and the sanction order was passed “mechanically” or without application of mind, since both the recommending authority and the Centre had granted sanction within a day each.
In his petition, he argued that the sanction was not in consonance with the statutory mandate as it was issued two years and 11 months after the incident.
However, the high court refused to grant him the reliefs he had prayed for, compelling him to move the top court.
What the top court ruled
On the timelines prescribed under the UAPA rules, the court said, when such timelines are provided, along with the use of the word “shall”, particularly in the context of a law such as the UAPA, they cannot be considered a mere technicality or formality.
Adding that such timelines demonstrate a “clear intention” on the legislature’s part, the court said: “While the legislation (UAPA) is aimed at curbing unlawful activities and practices detrimental to national security and accordingly, provides the authorities of the Government ample power to undertake and complete all procedures and processes permissible under law to that end, at the same time the interest of accused persons must also be safeguarded and protected. It is expected of the Executive, in furtherance of the ideal of protection of national security, that it would work with speed and dispatch.”
In doing so, the court also put to rest the differing interpretations on this question, rendered by the Jharkhand, Kerala and Bombay high courts in cases like Binod Kumar@Vinod Kumar Ganjhu v. UOI (2023), Roopesh v. State of Kerala (2022) and Mahesh Kariman Tirki v. State of Maharashtra (2023).
While the Kerala High Court had held the timelines under Rules 3 and 4 to be mandatory, the other two high courts had deemed it to be only “directory” in nature.
“Such time-line cannot be held to be mandatory and, that too, in cases where serious allegations of commission of offence under UAP Act have been made and found prima-facie true by the NIA,” the Jharkhand High Court had said.
On the other hand, the Bombay High Court said that though the word “shall” no doubt connotes the sense of urgency, the consequence of non-compliance in a strict sense, which flows from the wordings in the rule, has not been spelt out under the statute.
In the context of penal laws, the court added that authorities are tasked with evaluating material before granting sanction for prosecution, and “must apply their mind to every facet of the material placed before it to arrive at the conclusion” because the effect of the task at hand is immense.
The grant/non-grant of sanction is what sets in motion the machinery of strict laws, such as UAPA or the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), the court said, while underlining factors like the severity of these laws, activities they are associated with, and the effect they have on the person accused, which often go beyond the realm of law into areas like their social and personal life.
The procedures concerning sanctions in such legislations are meant to be followed strictly, to the letter and spirit of the law, the court said. Even the slightest variation from the written word may render the proceedings arising from it to be cast in doubt, the court said in its 63-page ruling.
(Edited by Radifah Kabir)
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