In light of the enormous costs to human liberty and the widespread abuse of the law, the conclusion is unavoidable: Section 43D(2) of the UAPA must be abolished with immediate effect.
Father Stanislaus Lourduswamy, known as Father Stan Swamy, was an 84-year-old, tribal rights campaigner, and a Jesuit priest. He worked in Jharkhand for almost thirty long years on different Adivasi and Moolvasi community concerns such as land, forest, and labour rights.
His works include calling into question the failure to execute the Fifth Schedule of the Constitution, which provided for protection, well-being, and development, of Tribes Advisory Council with Adivasi members exclusively. Swamy was working in Jharkhand for the rights of native inhabitants, Dalits, and farmers to protect the constitutional rights of tribal and native communities along with protecting the environment. Additionally, he was protesting against trumped-up accusations against 3,000 tribals in Jharkhand who were languishing in jail.
Charges against Stan Swamy
Violence broke out at the Bhima Koregaoncelebrations in Pune on December 31, 2017. Pune Police registered a First Information Report (FIR) against some lawyers, activists, academicians, etc. The FIR also named Swamy. However, the Bombay High Court put a stay on any coercive action against Stan Swamy. On January 25, 2020, the National Investigation Agency (NIA) took over the investigation from Pune Police. On the October 7, 2020, NIA arrested Swamy from his residence in Ranchi and brought him to Taloja jail in Mumbai.
NIA, while producing Swamy before the Special NIA Court, didn’t press for his police custody in order to interrogate him for the alleged “serious” crimes. Instead, he was remanded to judicial custody and sent to Taloja jail on the October 8. This ruling came at a time when Swamy was suffering from advanced-stage Parkinson’s disease (he was even unable to sign his vakalatnama), and hence, there were no legitimate ground to state that he could have tampered with evidence or had any flight risk.
On October 9, NIA filed a second supplementary chargesheet that indicted Swamy and the other accused. He was characterized as a “terrorist” under the Unlawful Activities (Prevention) Act,1967 (UAPA), for his connection with the frontal organizations of the prohibited outfit CPI (Maoist). In the second chargesheet, NIA stated that he was a member of CPI (Maoist) and he voluntarily participated in the actions of the organization. Further, the chargesheet stated that he received funds from support groups of CPI (Maoist) and that he was the convenor of the Persecuted Prisoners Solidarity Committee (PPSC), which is the face of the banned outfit. He was charged for conspiring to cause extreme and violent disaffection against the State under various provisions of the Indian Penal Code and the UAPA.
Bail is a rule and jail is an exception, but not for UAPA Cases
Article 21 of the Constitution safeguards the right to life and personal liberty to all individuals. It lays a solid foundation for human rights in India, protecting citizens from any act of cruelty, inhumanity, torture, or any other degrading treatment.
Swamy’s arrest amid the peak of the COVID-19 pandemic, during which concerns were raised about the overcrowding in prisons, was just the beginning of the gross violation of his rights. Swamy was denied access to basic essentials and timely healthcare.
The fragile health condition of the then 84-year-old activist was no barrier for the authorities to make his arrest by flying him down to the overcrowded Taloja Central Jail in Mumbai. The NIA was heartless in denying the 84-year-old, suffering from Parkinson’s, a sipper, and a straw. It was only after four weeks that he was granted access to the same.
As his health deteriorated, Swamy filed for bail on medical grounds on two occasions. Despite there being valid medical grounds and a precedent well in place for the same, he was repeatedly denied the bail on the ground that he “hatched a serious conspiracy to create unrest in the entire country and to overpower the Government, politically and by using muscle power.”
It was only after the intervention of the Bombay High Court that Swamy was allowed to be shifted to a private hospital. But by then, the menacing virus had ravaged his body, as a result of which he was put on the ventilator, from where he could not make it back.
How UAPA toys with the right to liberty
UAPA was enacted as an upgrade to the then enforceable laws to prevent terrorist acts and other disruptive activities. The main objective of the Act is to combat certain unlawful associations and terrorist activities. This Act empowers the designated authorities to not only make the arrest of people involved in unlawful associations, but also declare them as terrorist groups.
Despite the objectives of this Act, serious concerns have arisen emerging from the troubling statistics of the National Crime Records Bureau (NCRB). It was only from 2014 that the crimes under UAPA were recorded as a separate category and the number of cases has only seen a rise since then. With a persistent hike in cases every year since 2014, the recorded cases went as high as 1,182 in 2018 with a pendency percentage as high as 93.4% and a conviction percentage of only 27.2%.
In 2019, the then Union Minister of State (Home Ministry) G Kishan Reddy stated in a written reply that in 2019, 1,226 cases under the UAPA were recorded around the country and a total of 1,948 people were arrested under different sections of UAPA. When compared with 2015, the number of people detained under the UAPA has surged by over 72%.
This increase can predominantly be attributed to the oppressive provisions of the Act. There are certain sections in the Act that are against the principles of natural justice and fundamental Constitutional guarantees. The law gives unfettered power to the authorities under Section 43A and 43B, as per which the police can search, seize and arrest any person without a warrant; under Section 43D the police is given the powers to detain any person for a period of 30 days in police custody and a period of 180 days in judicial custody without a charge sheet. The power of police is even more widened by giving it the authority to get police custody of the accsued from judicial custody anytime with the permission of the court. Further, the definition clauses of the Act have an exorbitantly wide scope with no clear distinction among the ‘acts’ that may qualify as ones threatening the sovereignty and integrity of the land.
Among all the stringent provisions, the most draconian provision under the Act, given the exorbitantly high pendency rate, is that of bail in these cases. Under Section 43D (5), an accused cannot be released on bail if a prima facie case can be established against him. Moreover, the provision of anticipatory bail under Section 438 of the Code of Criminal Procedure (CrPC) is also not operative under this Act. This means that the authorities can keep a person behind bars on a charge of a non-bailable offence merely on the basis of probable cause and unconvincing evidence regarding affiliations with terrorist acts and organizations.
Stringent clauses of UAPA infringe fundamental rights
The Supreme Court in its recent judgment, while upholding the High Court’s order granting bail to KA Najeeb, who was charged under UAPA, shed light on how statutory restrictions cannot oust the Constitutional Court’s ability to grant bail. This was further upheld by the Supreme Court in the judgment granting bail to PV Varavara Rao on medical grounds, wherein the Court held that:
“The Hon’ble Supreme Court in the case of K.A. Najeeb has categorically held in the context of sufferings of undertrials where the proceedings before the trial court take years to be completed, that the rigors of provisions pertaining to grant of bail found in special statutes like the UAPA will meltdown where there is no likelihood of the trial being completed within a reasonable time. Therefore, such a position of law is now well recognized and it can be relied upon where on facts, the court comes to a conclusion that continued incarceration of an accused like the undertrial in the present case, would violate his right under Article 21 of the Constitution.”
Article 21 imposes an obligation to follow due process when any fundamental right or human right is infringed. As a result, when police powers under special and local laws breach personal freedom, it becomes the ultimate responsibility of the Constitutional Courts to safeguard these rights and uphold the ideals of the constitution.
As per the bail provisions of UAPA, even the establishment of a ‘prima facie’ case based on the search and seizure by the police makes for sufficient grounds for not granting bail. Even if this provision was inserted to effectively prevent any terrorist or any other disruptive activities that threaten the sovereignty of the land, the alarming statistics of the pendency of the cases under this Act make it an unconstitutional and undemocratic legislation. The distressing pendency rate coupled with the drastically low conviction rates only points towards the gross violation of the fundamental guarantees of these undertrials. And when this gross violation culminates in the death of an undertrial rendered devoid of his Constitutional rights, it is indeed the death of democracy itself.
Article 21 in its ambit ensures that a person may not be held in detention for more than one day without adhering to the procedure established by law. Section 43D(2), on the other hand, violates this fundamental right of the citizen. The pretence of complying with due process in the name of its built-in protections is demonstrated when the police are granted the whole extended 90-day time procedurally. And, the justification of “severity of the offence” continues to hamper the personal liberty of the accused.
The plight of undertrials under the UAPA can be encapsulated by the words of Dante in The Divine Comedy:
“All hope abandon, ye who enter here.”
It is apparent that in UAPA cases, it takes years of detention to recognize the significant infringement of fundamental rights that have occurred on the accused. It took six years for the Supreme Court in KA Najeeb’s judgment to notice the requirement for due process in UAPA cases. But by that stage, the police/investigative agency’s purpose to impose pre-conviction imprisonment as punishment is already satisfied. In light of the enormous costs to human liberty and the widespread abuse of the law notwithstanding procedural protections, the conclusion is unavoidable: section 43D(2) of the UAPA must be abolished with immediate effect.
The harrowing provision for non-grant of bail under Section 43D(5) of UAPA, alongside the brutality of treatment by NIA to an undertrial merely on the basis of feeble evidence and the laxity of the courts in granting bail to an ailing 84-year-old, contributed to this death in custody as an undertrial. This is a systematic failure of the Indian criminal justice system, and in this case, the price was Swamy’s to pay.
But the question is not who. The question is when, and how many more? If this is not enough to raise the collective conscience of the people of this country, what is? It is the prime duty of every citizen of a democracy to safeguard its Constitution and the ardent need to fulfil this duty has arisen now.
Pragya Barsaiyan is a law graduate from National Law Institute University, Bhopal and Kumar Kartikeya is an undergraduate law student based out of New Delhi.
courtesy Bar and Bench