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6 EDITORIAL MADURAI

MONDAY, NOVEMBER 8, 2021

THE HINDU
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A new jurisprudence for political prisoners

The Supreme Court’s judgment alters a terrible legal landscape that has seen the blatant misuse of the UAPA
Against the second accused, ha Fasal, refused to construct this space for judicial discretion and
Thwaha Fasal, over and above Section in a narrow and restrictive adjudication. This is more evident

Fuel price optics these charges, Section 13 of the

UAPA was alleged — which is the
sense. This analysis has to some
extent, liberalised an otherwise il­
in the context of bail. The courts
usually adopt two mutually con­
provision about punishment for liberal bail clause. In the process, tradictory methods in dealing with
Levies must be cut further to offset the effect unlawful activities. Both the ac­ the Court has also tried to mitigate such tough provisions. One is to
of the continuing surge in global oil prices Kaleeswaram Raj cused were students and there the egregious error committed by read and apply the provision liter­
were no allegations of any overt a two­judge Bench of the Supreme ally and mechanically which has

T
he Centre finally decided last week to relent and
act on the advice of monetary policymakers by act of violence. According to the Court in National Investigation the effect of curtailing the indivi­

A
judgment of the Supreme
cutting the excise duty on petrol and diesel by ₹5
Court of India on October
and ₹10 a litre, respectively. The duty reduction, an­ 28, 2021 has immense po­
nounced on the eve of Deepavali, immediately helped tential to reclaim the idea of perso­
lower the retail prices of the two fuels by at least about nal liberty and human dignity. In
5% and 11%, respectively. And on the Government’s urg­ Thwaha Fasal vs Union of India, the
ing, more than 20 States and Union Territories also re­ Court has acted in its introspective
duced the VAT levied on the fuel products, thereby en­ jurisdiction and deconstructed
the provisions of the Unlawful Ac­
hancing the relief provided to consumers from record
tivities (Prevention) Act (UAPA)
pump prices. While the Centre asserted that the deci­ with a great sense of legal realism.
sion was to impart a fillip to the reviving economy, as This paves the way for a formida­
well as easing inflationary pressure, the political signif­ ble judicial authority against bla­
icance of its timing was hard to overlook, coming a day tant misuse of this draconian law.
after the ruling BJP suffered electoral reverses in some
legislative and parliamentary bypolls. That the Govern­ The background
In this case from Kerala, there are
ment was keen to make political capital out of its belat­
three accused. The third among
ed reduction of levies was made obvious two days later, them is absconding. The police re­
when it sought to call out the States — almost all ruled gistered the case and later the in­
by Opposition parties — that were yet to make commen­ vestigation was handed over to the
surate VAT reductions. With a clutch of crucial State National Investigation Agency
elections, including to the prized U.P. Assembly, due (NIA). The accused were in their
early next year, the BJP is keen to regain control of the twenties when arrested on No­
vember 1, 2019. During the investi­
narrative, especially given the heightened public con­
gation, some materials containing
cern over inflation and the surge in fuel prices. radical literature were found,
As far as the economy is concerned, the reduction in which included a book on caste is­
fuel bills is bound to have a salutary impact on inflation sues in India and a translation of
as diesel is the main fuel for freight carriage and im­ the dissent notes written by Rosa
pacts the cost of everything requiring to be transport­ Luxemburg to Lenin. There were
ed. The softening in transportation costs ought to pro­ also leaflets that were allegedly re­
lated to Maoist organisations.
vide some cushion to the manufacturing sector, which
Thus, the provisions of the UA­
has had to cope with surging input prices at a time PA were invoked. Against the first
when demand is still tenuous. The additional cash left accused, Allen Shuaib, offences
in the wallets of consumers may also provide a small under Sections 38 and 39 of the
bump in consumption though the durability of this sti­ UAPA and 120B of the Indian Penal
mulus will hinge on how global oil prices behave in the Code (IPC) were alleged. Section
coming weeks and months. Global oil prices have been 38 deals with “offence relating to
on a boil this year and the World Bank group projected membership of a terrorist organi­
sation” and Section 39 deals with
last month that average crude prices would end 2021
“offence relating to support given
with a gain of about 70%. With the Indian crude basket to a terrorist organisation.” Sec­
having risen on average almost 62% in the 10 months tion 120B of the IPC is the penal
through October and the historical trend suggesting a provision on criminal conspiracy.
firming of prices towards the year­end when the north­
V.V. KRISHNAN
accused, the charges were an at­ Agency vs Zahoor Ahmad Shah Wa- dual freedom as intended by the
tempt to label them as terrorists, tali (2019) that interpreted the makers of the law. In contrast to
based on the intellectual and ideo­ same provision. this approach, there could be a
logical inclinations attributed to In Zahoor Ahmad Shah Watali, constitutional reading of the sta­
them. by the accused at a formative the Court said that by virtue of tute, which perceives the issues in
young age, or even their fascina­ Section 43D(5) of UAPA, the bur­ a human rights angle and tries to
Judicial trajectory tion for an ideology, does not ipso den is on the accused to show that mitigate the rigour of the vicious
The case had a curious trajectory. facto or ipso jure make out an of­ the prosecution case is not prima content of the law. The former ap­
After initial rejection of the pleas, fence, the Court ruled. facie true. The proposition in Za- proach is reflected in Zahoor Ah-
the trial judge granted bail to both The judgment can act as an ef­ hoor Ahmad Shah Watali is that the mad Shah Watali and the latter in
the accused in September 2020. fective admonition against a sup­ bail court should not even investi­ Thwaha Fasal. In Thwaha Fasal,
By that time, the students had pressive regime. It also exposes gate deeply into the materials and the Court has asserted the prima­
completed more than 10 months the hypocrisy of the law, the UA­ evidence and should consider the cy of judicial process over the text
in prison. The High Court, in ap­ PA. Section 43D(5) of the UAPA bail plea, primarily based on the of the enactment, by way of an in­
peal, while confirming the bail of says that for many of the offences nature of allegations, for, accord­ terpretative exercise.
Allen, chose to set aside the bail under the Act, bail should not be ing to the Court, Section 43D(5)
granted to Thwaha. The matter granted, if “on perusal of the case prohibits a thorough and deeper Delhi riots case
then reached the Supreme Court. diary or the report (of the investi­ examination. As such, in several On June 15, 2021, the Delhi High
The Supreme Court, after a com­ gation)… there are reasonable cases, bail pleas were rejected re­ Court granted bail to student acti­
prehensive examination, upheld grounds for believing that the ac­ lying on Zahoor Ahmad Shah Wata- vists Natasha Narwal, Devangana
the trial judge’s finding that the cusation … is prima facie true”. li, despite the strong indications Kalita and Asif Iqbal Tanha who
materials, prima facie, do not Thus, the Act prompts the Court to that the evidence itself was false or were charged under the UAPA for
show any “intention on the part of consider the version of the prose­ fabricated. Many intellectuals in­ alleged connections with the Delhi
both the accused to further the ac­ cution alone while deciding the cluding Sudha Bharadwaj and Sid­ riots. In an appeal by the Delhi pol­
tivities of the terrorist organisa­ question of bail. Unlike the Crimi­ dique Kappan were denied bail ice, unfortunately, the Supreme
tion”. It found fault with the High nal Procedure Code, the UAPA, by based on a narrow interpretation Court said that the well­reasoned
Court for not venturing to record, virtue of the proviso to Section of the bail provision as done in Za- judgment of the High Court shall
prima facie, findings regarding 43D(2), permits keeping a person hoor Ahmad Shah Watali. Stan not be treated as a precedent.
charges against Thwaha, whose in prison for up to 180 days, with­ Swamy was another victim of this The Thwaha Fasal judgment
bail was set aside by the High out even filing a charge sheet. provision and its fallacious has, by implication, legitimised
Court. The top court confirmed Thus, the statute prevents a com­ reading. the methodology in the Delhi High
the bail granted to both the stu­ prehensive examination of the The top court has now altered Court verdict that ventured to exa­
dents. Now, they have been set facts of the case on the one hand, this terrible legal landscape. For mine the content of the charge in­
free. and prolongs the trial indefinitely doing so, the Court also relied on a stead of swallowing the prosecu­
The Supreme Court was em­ by keeping the accused in prison later three­judge Bench decision tion’s story. It is this judicial
phatic and liberal when it said that on the other. in Union of India vs K.A. Najeeb radicalism that builds an emanci­
mere association with a terrorist (2021). In K.A. Najeeb, the larger patory legal tool. The judgment
organisation is not sufficient to at­ Presumption of guilt Bench said that even the stringent should be invoked to release other
tract the offences alleged. Unless Instead of presumption of inno­ provisions under Section 43D(5) political prisoners in the country
and until the association and the cence, the UAPA holds presump­ do not curtail the power of the who have been denied bail either
support were “with intention of tion of guilt of the accused. Section constitutional court to grant bail due to the harshness of the law or
furthering the activities of a terro­ 43E of the Act expressly says about on the ground of violation of fun­ due to the follies in understanding
rist organisation”, offence under “presumption as to the offences”. damental rights. the law or both.
Section 38 or Section 39 is not According to Section 43D(5), jail is The text of the draconian laws
made out, said the Court. Mere the rule and bail is often not even sometimes poses immense chal­ Kaleeswaram Raj is a lawyer at the
possession of documents or books an exception. The Court, in Thwa- lenge to the courts by limiting the Supreme Court of India

AUKUS could rock China’s boat in the Indo­Pacific

ern hemisphere’s winter usually pushes up energy de­
mand, there is a real risk that Indian refiners may be left
with little option but to continue raising retail prices.
The onus would then be again on the Centre to make
+
further cuts to the duty it had raised last year. States run
While there is nothing surprising about AUKUS, a Pacific­centric orientation has advantages in the context of China
by other parties should take the cue from Tamil Nadu ASEAN centrality and its conti­ could not guarantee its security the challenge of China’s Belt and
and Punjab and bring down the prices at the outlets, nued support for the South Pacific against a direct maritime threat. Road Initiative.
and not hold back for political or revenue reasons. Nuclear­Free Zone Treaty as well In 2017 and 2019, the Talisman
as the Treaty of Southeast Asia Nu­ Sabre exercises (a biennial exer­ A comparison, the reach
clear Weapon­Free Zone. cise that is led by either Australia The Quad and AUKUS are distinct,
Rebels and rulers
GETTY IMAGES/ISTOCKPHOTO

Even though Australia has de­ or the U.S.), conducted by the yet complementary. Neither di­
Sujan R. Chinoy nied that AUKUS is a defence al­ Royal Australian Navy, were minishes the other. Whereas the
The Ethiopian government and the militias liance, this hardly prevents China tagged by a Chinese People’s Lib­ Quad initiatives straddle the In­
must end the fighting and begin talking from exploiting ASEAN’s concerns eration Army Navy (PLAN) Dong- dian and the Pacific Oceans, a Pac­

T
he trilateral security agree­ at having to face a Hobson’s choice diao­class Type 815 auxiliary gen­ ific­centric orientation for AUKUS

E
thiopian Prime Minister Abiy Ahmed’s year­long ment between Australia, the
war on the rebels in the northern Tigray region United Kingdom and the Un­
threatens to pull the whole country into a deadly ited States (AUKUS) continues to
civil war between the federal troops and several ethnic be in the news. At the COP26 meet­
militias. When the war began, Mr. Abiy, a Nobel peace ing at Glasgow, U.S. President Joe
laureate, wanted to oust the Tigray People’s Liberation Biden tried to smoothen ruffled
Front (TPLF), an ethnic paramilitary group­turned­pol­ feathers when he candidly told his
French counterpart, President
itical party, in Tigray and install a friendly regional go­
Emmanuel Macron, that the Aus­
vernment. Within a month, he met his objectives and tralian submarine deal with
declared that major combat operations were over. But France had been handled clumsi­
retaining control over a rebellious region was harder ly. An assuaged France is bound to
than ousting the rebels. Moreover, Mr. Abiy seemed to come around eventually since the
have overlooked Tigray’s complex history. The moun­ Trans­Atlantic partnership is im­
tainous region that shares a long border with Eritrea portant for both sides. In regard to
Australia, however, the kerfuffle
was the base of resistance against the military dictator­
over the cancelled submarine deal
ship in the 1970­80s. The TPLF, which fought the Derg, continues to dog relations. A
the military regime, for 16 years before ruling Ethiopia piqued France harbours resent­
through a multiparty coalition for three decades, was ment at the Australian action, go­
not an easy pushover. It retreated to the mountains, re­ ing by Mr. Macron’s recent re­
grouped and hit back, forcing the federal troops and marks at the G20 press conference
their allies, including paramilitaries from Eritrea, to on November 1.
withdraw. Now, after taking Tigray and key towns in
The ASEAN factor
neighbouring regions, the TPLF, joined by other mili­ There is also the matter of Associa­
tias, has threatened to take Addis Ababa, the capital ci­ tion of Southeast Asian Nations
ty that is home to five million people, “within weeks”. (ASEAN) disunity over the emer­
In his attempt to shake up Ethiopia’s power struc­ gence of AUKUS. The South­east
tures and crush the former ruling elites, Mr. Abiy has Asian nations have been unable to
unleashed a series of events that he is no longer in a po­ agree on other issues before, such
as developments in Myanmar or
sition to control. When the country moved to a parlia­
the strategic threats posed by Chi­
mentary system from military dictatorship in the early na. While AUKUS is clearly an at­
1990s, it adopted a model called “ethnic federalism” in tempt by the U.S. to bolster region­
which the regions, largely divided on ethnic lines, en­ al security, including securing
joyed some autonomy, while the federal government, Australia’s seaborne trade, any
controlled by the TPLF, focused on national unity, eco­ sudden accretion in Australia’s na­
nomic growth and defence. This model worked, at least val capabilities is bound to cause
unease in the region. In a state­
for a decade, as Ethiopia, Africa’s second most popu­
ment on September 20, Australia
lous country that was devastated by a famine in 1983­ had unambiguously reassured the
85, emerged as East Africa’s strongest economic power­ region of its commitment to
house. But ethnic tensions started resurfacing late last
decade, and Mr. Abiy, an ethnic Oromo, was chosen to
put the country back on the trajectory of growth and
LETTERS TO THE EDITOR
amidst worsening U.S.­China re­ eral intelligence (AGI) vessel. has advantages. Such a strategy
gional rivalry. True to style, the China also used the same type of could potentially strengthen Ja­
Chinese Foreign Ministry spokes­ vessel to monitor the multilateral pan’s security as well as that of Tai­
man has criticised AUKUS as an together to forge a new defence Rim of the Pacific (RIMPAC) exer­ wan in the face of China’s mount­
“exclusive bloc” and “clique” that pact is stating the obvious. They cise in 2018. ing bellicosity. Shifting AUKUS’s
gravely undermines regional have been alliance partners all These developments, no doubt fulcrum to the Pacific Ocean could
peace and security and reflects a along. a portent of things to come, have reassure ASEAN nations. It could
Cold War mentality. AUKUS is cast a long shadow on Australia’s also inure AUKUS to any insidious
based on a shared commitment of Engagement with China trade and strategic interests. insinuation that accretion in the
its three members to deepening For three nations, their relations number of nuclear submarines
diplomatic, security and defence with China have recently been ‘To further’ is the key plying the Indo­Pacific might up­
cooperation in the Indo­Pacific to marked by contretemps. Australia, The transfer of sensitive subma­ set the balance of power in the In­
meet the challenges of the 21st especially, had for years subordi­ rine technology by the U.S. to the dian Ocean.
century. Even though this has not nated its strategic assessment of U.K. is a sui generis arrangement China’s potent military capaci­
been stated explicitly, the rise of China to transactional commercial based on their long­standing Mu­ ties must be taken seriously. China
China, particularly its rapid mili­ interests. Much to China’s chagrin, tual Defence Agreement of 1958. has a large and growing undersea
tarisation and aggressive beha­ its policy of deliberately targeting The AUKUS joint statement clearly fleet, including attack submarines,
viour, is undoubtedly the trigger. Australian exports has not yielded acknowledges that trilateral de­ both nuclear­powered and diesel­
the desired results. Instead of kow­ fence ties are decades old, and electric. China’s naval power is
Decades-old partnership towing, the plucky Australian cha­ that AUKUS aims to further joint enabling it to challenge U.S. domi­
As such, there is nothing surpris­ racter has led Canberra to favour a capabilities and interoperability. nance in the Pacific beyond the
ing about the U.S., the U.K. and fundamental overhaul of its China The word “further” is key, since first island chain. A U.S. that still
Australia coming together. The policy. The attempt to torment defence cooperation already ex­ boasts the world’s most powerful
U.S. and the U.K. have enjoyed a Australia has clearly backfired. ists. The other areas covered are military is perhaps tempted to
special defence partnership for That China’s naval expansion cyber capabilities, artificial intelli­ look at effective means to militari­
decades. The U.S. and the U.K. and far­ranging forays in the gence and quantum technologies, ly counter China. The Quad struc­
have fought together as allies, to­ oceanic space should have com­ apart from undersea capabilities. ture currently has neither the
gether with Australia, in the Se­ pelled Australia to revisit its de­ The latter is the most visible part mandate nor the capability to
cond World War. The U.S. shared fence and security policies should of the agreement, and potentially, achieve this. There are limited op­
nuclear weapons technology with also not surprise anyone. As early a game­changer. tions in the economic arena with
the U.K. following the merging of as in 1942, during the Second Elements in the broader agenda China already having emerged as a
the latter’s nuclear weapons pro­ World War, three Japanese midget provide opportunities to the U.S., global economic powerhouse. AU­
gramme with the American Man­ submarines, launched from five the U.K. and Australia to engage KUS, though, provides an oppor­
hattan Project as early as in 1943. large submarines that acted as the regional countries. There are tunity to the U.S. to place proxy
The first U.K. test was conducted launching platforms, had mount­ clear indications that New Zealand submarine forces to limit China’s
in 1952 in the Montebello Islands ed a sneak attack in Sydney Har­ is open to cooperation with AU­ forays, especially in the Pacific
in Australia, a country that still re­ bour. Though the damage and ca­ KUS in such areas, especially cyb­ Ocean.
gards the British monarch as the sualties inflicted by the attack er, its nuclear­averse record not­
head of state, whose powers are were limited, that brazen episode, withstanding. All three nations Sujan R. Chinoy, a former Ambassador, is
exercised constitutionally through combined by the bombing by Japa­ will also play a major role in U.S.­ currently the Director General of the
her representative, the Governor­ nese warplanes of Darwin, also in led programmes such as Build Manohar Parrikar Institute for Defence
General of Australia. To suggest 1942, drove home to Australia that Back Better World, Blue Dot Net­ Studies and Analyses. The views expressed
that these three nations have come its distant geographical location work and Clean Network, to meet are personal
Letters emailed to letters@thehindu.co.in must carry the full postal address and the full name or the name with initials.

stability. But his moves to sideline the TPLF triggered a To read more letters

bigger political crisis, which eventually led to the war in Hospital inferno incidents. The Government that staff, especially in compensate for precious Bravo to hang up his boots as online, scan the QR code

Every time there is an
Tigray. Mr. Abiy is now on the defensive. The move to
accident, in this instance, a
take control of Tigray has failed. If he stops the military shocking hospital fire,
operations now, it would be seen as weakness and the governments come up with
rebels, emboldened by their recent victories and polit­ a platitude that stern action
ical support they gained from opposition groups, could would be taken and ex
march southwards. An all­out civil war would be disas­ gratia to be doled out to the
families. However,
trous as it could open old ethnic wounds. To avoid such
everything is back to square
a calamity, there has to be a mutually agreed upon cea­
one after some time.
sefire. But neither side has shown any interest in talks. Delinquency on the part of
The international community, particularly the African the hospital concerned and
Union, should press both the rulers and the rebels to the reactive nature of the
immediately end the fighting and start talking. Government only pave the
way for more such
ought to forge a durable critical sectors, show lives lost. There has to be a far as international cricket is
solution. Exemplary diligence in their work. focus on safety measures. concerned is sure to create a the Clive Lloyd­era. Apart
punishment ought to be S. Ramakrishnasayee, Balasubramaniam Pavani, vacuum in Caribbean cricket. from their cricket, one is
given which may act as a Chennai Secunderabad It could well have been the sure to miss the conspicuous
deterrent (Page 1, last World Cup game in West calmness of Gayle and the
November 7). ■ Safety concerns, sadly, Bravo! Indies colours for Chris Gayle Calypso dance of Bravo.
Aanya Singhal, have never been a priority, The decision by legendary too. Both took West Indian K. Pradeep,
Noida, Uttar Pradesh and one wonders how Caribbean cricketer Dwayne cricket to great heights after Chennai
probes being ordered after
corrections & clarifications:
■ The tragedy only drives tragedies help the cause if In the Explainer on Vanniyar quota ( “Reservation on quota”, FAQ page, Nov. 7, 2021), the sentence
home the point that the corrective steps are never that read, “The DNC sub­division was to have 7%...” should have read as: “The MBC/DNC sub­division
medical authorities given the importance they was to have 7% for DNCs and a section of MBCs, while the remaining 2.5% was meant for the rest of the
concerned have really not deserve. The authorities MBCs.” In the last paragraph, in the reference to Backward Class (Muslim) quota, the percentage
taken “intensive care” of the must realise that should have been 3.5% and not 2.5% as published.
patients. Alas! It is imperative compensation can never The Readers’ Editor’s office can be contacted by Telephone: +91-44-28418297/28576300; E-mail:readerseditor@thehindu.co.in

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