Was UAPA imposed on Malegaon accused while bypassing mandatory law provision?
The accused in the case, among others, include BJP MP from Bhopal, Pragya Thakur and several former Army officers.
The sanction to prosecute the alleged accused in the Malegaon blast under the Unlawful Activities (Prevention) Act (UAPA) was given without considering the amendments that were introduced in the Act by the Union government which, among other legal issues, mandated for “an independent review of the evidence gathered in the course of investigation by an authority” before invoking the stringent provisions of the UAPA.
The blast at Malegaon, a town located in the Nashik district of Maharashtra, took place on 8 September 2006 in Malegaon targeting a predominantly Muslim area in which 40 people had died. The case was investigated by the Maharashtra Anti-terror Squad (ATS) and the National Investigation Agency (NIA).
Initially, the agencies stated it was carried out by Jihadi groups before stating that it was a case of “right wing terror”.
Documents accessed by The Sunday Guardian relating to the trial in the case that is going on in the Special NIA court, Mumbai, including deposition of senior government officials handling the relevant department, state that they sanctioned the application of the UAPA on the accused on the basis of the report received from the ATS and on the basis of the scrutiny and examination and analysis carried out by other officials, including the Under Secretary, the Deputy Secretary, the Principal Secretary and similar officials in the Law & Justice Department.
None of these officials satisfy the requirement of Section 45 (2) that was needed for the application of UAPA which was added to the Act on 31 December 2008 which imposed that, “Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.”
The said official signed the order to impose UAPA on the accused in the case, which, among others, include BJP MP from Bhopal Pragya Thakur and several former Army officers, on 17 January 2009, at least 16 days after the said amendment was published in the union gazette.
During the cross examination
in the case, the said officer stated that he/ she does not remember whether there was any amendment in UAPA on 31 December 2008 and added that he/she was not aware of what amendments were brought by the amendments of 2008 in the UAPA. The said officer, during the cross questioning, added that he/she was having an updated library of law books.
According to the officer, at that time, Jayant Patil (NCP leader) was the Home Minister
and he/she was reporting to him. The officer further stated that he/she showed the sanction order to Patil and after his approval, the sanction order was issued. The authorities in the Home and Legal departments that analysed the sanction order as per the said officials were Under Secretary Borade, Deputy Secretary of Home Department, Joint Secretary of Home Department, Principal Secretary. In the Legal Department, the proposal was seen and approved by Deputy Secretary and then Principal Secretary “L&J” Department.
None of these can be termed as “independent review authority” as per Section 45(2). According to the said officer, there was no such authority (to do independent review of the case before applying UAPA) as mentioned under Section 45(2). The officer further stated that on 31 March 2009, there was no independent reviewing authority.
During the cross questioning by the lawyers of the accused, the retired official said that “he/she was not aware that, in early 2009 independent reviewing authority was consisting of Hon’ble Justice Ramanna and M.K.D. Singh Ex-law Secretary of Government of India, was appointed under UAPA.”
The officer further stated that he/she was not aware that in Ravi Dhiren Ghosh case (relating to a fake Indian currency notes cartel in which the case was registered by the NIA in May 2009) there was independent reviewing authority under UAPA.
The officer told the court that the sanction was proper and that it was done after reasonable, rational or judicious application of mind prior to issuance of sanction order.