Section 38 or Section 39 OF UAPA and Thwaha Fasal case
- UAPA was passed in 1967. It aims at effective prevention of unlawful activities associations in India.
- Unlawful activity refers to any action taken by an individual or association intended to disrupt the territorial integrity and sovereignty of India.
- Criminalized the raising of funds for a terrorist act holding of the proceeds of terrorism, membership of a terrorist organization, support to a terrorist organization, and the raising of funds for a terrorist organization.
- It increased the time available to law-enforcement agencies to file a charge sheet to six months from three. The law was amended in 2008 after the Mumbai attacks, and again in 2012.
- The definition of “terrorist act” was expanded to include offences that threaten economic security, counterfeiting Indian currency, and procurement of weapons, etc.
What the provision says
- The UAPA, enacted in 1967, was strengthened by government in 2008 and 2012.
- The test for denying bail under the UAPA is that the court must be satisfied that a “prima facie” case exists against the accused.
- In 2019, the SC defined prima facie narrowly to mean that the courts must not analyze evidence or circumstances but look at the “totality of the case” presented by the state.
- Section 43D(5) reads: “Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.
- “Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”
- Section 38 0f UAPA deals with “offence relating to membership of a terrorist organization” and Section 39 deals with “offence relating to support given to a terrorist organization.”
- Section 120B of the IPC is the penal provision on criminal conspiracy.
- The Supreme Court was emphatic and liberal when it said that mere association with a terrorist organization 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 organization”, 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 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.
- Section 43E of the Act expressly says about “presumption as to the offences”.
- According to Section 43D (5), jail is the rule and bail is often not even an exception. The Court, in Thwaha Fasal, refused to construct this Section in a narrow and restrictive sense. This analysis has to some extent, liberalized bail clause.
AUKUS and ASEAN
- There is the matter of Association of Southeast Asian Nations (ASEAN) disunity over the emergence of AUKUS.
- The South-east Asian nations have been unable to agree on other issues before, such as developments in Myanmar or the strategic threats posed by China.
- While AUKUS is clearly an attempt by the U.S. to bolster regional security, including securing Australia’s seaborne trade, any sudden accretion in Australia’s naval capabilities is bound to cause unease in the region.
- In a statement on September 20, Australia had unambiguously reassured the region of its commitment to ASEAN centrality and its continued support for the South Pacific Nuclear-Free Zone Treaty as well as the Treaty of Southeast Asia Nuclear Weapon-Free Zone.
- The U.S. and the U.K. have fought together as allies, together with Australia, in the Second World War.
- The U.S. shared nuclear weapons technology with the U.K. following the merging of the latter’s nuclear weapons programme with the American Manhattan Project as early as in 1943.
- The first U.K. test was conducted in 1952 in the Montebello Islands in Australia, a country that still regards the British monarch as the head of state, whose powers are exercised constitutionally through her representative, the Governor General of Australia.
- That China’s naval expansion and far-ranging forays in the oceanic space should have compelled Australia to revisit its Defence and security policies
- In 2017 and 2019, the Talisman Sabre exercises (a biennial exercise that is led by either Australia or the U.S.), conducted by the Royal Australian Navy, were tagged by a Chinese People’s Liberation Army Navy (PLAN) Dongdiao-class Type 815 auxiliary general intelligence (AGI) vessel.
- China also used the same type of vessel to monitor the multilateral Rim of the Pacific (RIMPAC) exercise in 2018.
- The transfer of sensitive submarine technology by the U.S. to the U.K. is a sui generis arrangement based on their long-standing Mutual Defence Agreement of 1958.
- The AUKUS joint statement clearly acknowledges that trilateral Defence ties are decades old, and that AUKUS aims to further joint capabilities and interoperability.
- All three nations will also play a major role in U.S. led programmes such as Build Back Better World, Blue Dot Network and Clean Network, to meet the challenge of China’s Belt and Road Initiative
- The Quad and AUKUS are distinct, yet complementary. Neither diminishes the other.
- Whereas the Quad initiatives straddle the Indian and the Pacific Oceans, a Pacific-centric orientation for AUKUS has advantages. Such a strategy could potentially strengthen Japan’s security as well as that of Taiwan in the face of China’s mounting bellicosity.
- The Indian SARS-CoV-2 Genomics Consortium (INSACOG), jointly initiated by the Union Health Ministry of Health, and Department of Biotechnology (DBT) with Council for Scientific & Industrial Research (CSIR) and Indian Council of Medical Research (ICMR), is a consortium of 28 National Laboratories to monitor the genomic variations in the SARS-CoV-2.
- INSACOG is a multi-laboratory, multi-agency, Pan-India network to monitor genomic variations in the SARS-CoV-2 by a sentinel sequencing effort.
- The network carries out whole genome sequencing of SARS-CoV-2 virus across the nation, aiding the understanding of how the virus spreads and evolves, and provide information to aid public health response.
Person in News
- Abdul Jabber, a gas victim, waged a lonely and seemingly never-ending battle for the welfare of the survivors of 1984 Bhopal Gas Tragedy.
- His relentless struggle for over three decades brought medical and economic rehabilitation to scores of victims.
- He will be awarded Padma Shri posthumously on Monday at Darbar Hall of the Rashtrapathi Bhavan.