Issue of Bail under UAPA (Unlawful Activities Prevention Act) – Explained, Pointwise

Introduction

The unfortunate death of Father Swamy and the continued imprisonment of so many others like him bring the spotlight again on the Unlawful Activities (Prevention) Act (UAPA),1967. The Watali decision must be urgently reversed or diluted, otherwise, India might run the risk of compromising personal liberties very easily. Therefore, it is imperative to do a comprehensive review and expand the provisions of bail under UAPA.

The UAPA was formulated to strengthen the security framework of the country and preserve the unity and integrity of the nation. Nonetheless, it has currently become a tool to curb free speech and political dissent in our country. The cases filed under the law have been rising for a few years, while the conviction rate is going down. It was merely 2.2% between 2016-19.

Background

• Father Stan Swamy passed away at a private hospital in Mumbai on July 5. He was a Jesuit priest who worked for uplifting the marginalized communities in Jharkhand
• His death is much more than the death of an activist accused of terrorist activities. It is the result of systemic abuse of majoritarian authority and disregard for the rule of law.
• On October 8, 2020, Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA).  He was the 16th to join a roster of professors, activists, writers, and public intellectuals, as a suspect in the Bhima-Koregaon case. 
  • The allegations against Swamy were that he was linked with the banned CPI (Maoist) and receiving funds from cadres.
  • During the time of death, a bail plea was scheduled in the Bombay High Court.
  • This was the latest in a series of bail pleas, all of which were previously rejected. This raises the question of granting bail under UAPA.
  • Two days before he died, Swamy had challenged Section 43D(5) of the Unlawful Activities Prevention Act (UAPA) calling it nothing but an illusion.

Evolution of bail under UAPA

The government enacted the Terrorist and Disruptive Activities Act, 1985 (TADA). The law was set to lapse in two years, and the government itself admitted that such extraordinary laws should not be made permanent. But, TADA was renewed till 1995, allowed to lapse amidst criticisms of its misuse

But the provisions of TADA were largely revived in the Prevention of Terrorism Act, 2002 (POTA). In 2004, the government let POTA lapse, while giving its provisions a permanent home in an amended UAPA as Section 43D(5).

What is Section 43D(5) of UAPA? And what does it mean?

The Section says that no one who is accused of an offense “punishable under Chapters IV and VI of UAPA shall, if in custody, be released on bail or on his own bond.  So the Bail cannot be provided unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.

The 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.

Have the courts granted bail under UAPA section 43D(5)?

• The Supreme Court bench made an exception in the Union of India v K A Najeeb case. Further, the bench also held that “Courts are expected to appreciate the legislative policy against the grant of bail but the rigours of such provisions will meltdown where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D(5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of the constitutional right to a speedy trial”
• The same Bombay HC where Swamy was pleading has also provided bail to Telugu poet Varavara Rao in February this year. For the reason — on grounds of sickness and age. While Rao is 80 and was COVID-19 positive.
• Similarly, in June this year, the Karnataka HC granted bail to more than 115 accused charged under UAPA for the 2020 East Bengaluru riots because that the NIA court had extended the investigation time without even hearing the accused.

About Unlawful Activities (Prevention) Act,1967

• It is primarily an anti-terror law aimed at effective prevention of certain unlawful activities of individuals and associations.
• Its main objective is to empower the state for dealing with activities directed against the integrity and sovereignty of India.
• The Act assigns absolute power to the central government. It can declare an activity as unlawful, by way of an Official Gazette.
• The act has the death penalty and life imprisonment as the highest punishments.
• Under the act, both Indian and foreign nationals can be charged.

Issues in handling Fr. Swamy’s detention

• He was arrested on flimsy evidence of some propaganda material and communication with other activists in the field. 
  • The authenticity of some allegedly indicting documentation, including a key report was questioned by international forensic data experts. 
  • But the state defended the arrest, arguing that these issues must be looked upon only during the trial and that the accused should remain in jail until then.
• Repeated pleas for medical assistance were consistently ignored or dismissed. 
  • Medical reports on record clearly showed that Fr. Swamy had degenerative Parkinson’s disease. He could not even do basic tasks, such as holding a spoon, writing, walking, or bathing.
• When he applied for medical bail, the court kept adjourning the matter, and merely offered him the services of a private hospital. This demonstrates a lack of sensitivity on the part of the judges, which is deeply saddening.

Watali judgment – why was the bail application rejected multiple times?

• The Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali Case (2019) created a new doctrine for dealing with UAPA cases.
• As per this, an accused must remain in custody throughout the period of the trial. Even if it is eventually proven that the evidence against the person was inadmissible, and the accused is finally acquitted.
• According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct. 

Problems with Watali Judgment:

• It dilutes the idea of the “presumption of innocence” — a central principle of criminal law and procedure. The burden now rests on the accused to disprove the allegations, which is virtually impossible in most cases.
• The decision has essentially excluded the admissibility of evidence at the stage of bail. By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.
• The decision has given a convenient tool in the hands of the government which can be used to suppress the voice of dissenters. This is evident in cases of arrests made with reference to Bhima Koregaon case and Anti- CAA protests.
• Due to the Supreme Court judgment, High Courts have their hands tied, and must necessarily refuse bail, as disproving the case is virtually impossible.

Suggestions to granting bail under UAPA:

• The Delhi High Court order of granting bail to three young activists accused under UAPA for a conspiracy relating to the 2020 riots in Delhi showed a positive ray of hope.
  • However, the Supreme Court reportedly expressed “surprise” and dissatisfaction at the High Court’s decision. 
  • The SC indicated that the decision will “not to be treated as precedent by any court” to give similar reliefs.
• Therefore, the Watali decision must be urgently reversed or diluted, otherwise, we run the risk of compromising personal liberties very easily.