UAPA can’t remain in current form, sedition law must go: Former SC judges

By, New delhi
Jul 25, 2021 12:02 AM IST

Former Supreme Court judges Aftab Alam, Madan B Lokur, Gopala Gowda and Deepak Gupta on Saturday expressed concern over the misuse of anti-terror legislation in India while stressing it was time to do away with the law on sedition in the country

Former Supreme Court judges Aftab Alam, Madan B Lokur, Gopala Gowda and Deepak Gupta on Saturday expressed concern over the misuse of anti-terror legislation in India while stressing it was time to do away with the law on sedition in the country.

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The remarks came amid outrage over the death of 84-year-old activist Stan Swamy, who was arrested under the anti-terror law in the Elgar Parishad case last year. He died in Mumbai recently while his bail plea on health grounds remained pending before the high court there.

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Speaking at an online public discussion organised by NGO Campaign for Judicial Accountability and Reforms (CJAR), the retired judges were unanimous in holding that the death of the tribal rights activist was an instance of how the anti-terror law was being misused.

Swamy was charged under the Unlawful Activities (Prevention) Act, (UAPA) for his role in what the National Investigative Agency (NIA) said was an alleged Maoist conspiracy that led to caste clashes near the Bhima Koregaon village four years ago.

Justice Lokur said the demise of Swamy was a result of “soft torture”. “Everybody has talked about Stan Swamy. Why could he not be given medical treatment earlier? Isn’t that torture? It is soft torture. It is not physical torture where you beat up a person. But it is certainly a form of torture.”

Justice Alam said: “Where has this most draconian law in world’s largest democracy taken us? The results are all there for us to see; it stares us in face in death of Stan Swamy without a trial.”

Speaking on the issue, justice Gupta said: “Father Stan Swamy, 84 years old, suffering from Parkinson’s disease...I mean are we not human? Have we lost all touch of humanity that this man required bail even if there is Sections 43D or 43E of UAPA?”

“What is the purpose of bail? The purpose is that he should not influence and run away from justice. Court had adequate means to place such restrictions if Stan Swamy was granted bail. But what stands in way was Section 43D of UAPA,” the retired Supreme Court judge added.

Section 43D(5) of UAPA makes the grant of bail extremely difficult. It lays down that an accused charged under UAPA shall not be released on bail if the court thinks that there are reasonable grounds for believing that the accusation against such a person is prima facie true. The Supreme Court’s 2019 judgment in the case of Zahoor Ahmed Shah Watali also laid down that a court cannot go into the merits of a case or scrutinise admissibility of evidence at the time of deciding a bail plea, thereby lowering the bar for courts to examine the veracity of agency’s case.

A few weeks back, Assam leader Akhil Gogoi walked out of jail after spending 17 months behind bars in connection with a case under UAPA against him over violent protests against a contentious citizenship law.

The former judges said that Section 43(D)(5) of UAPA needed to be either amended or given a completely different interpretation by the Supreme Court, since it had become a tool to keep people incarcerated without trials.

“Grant of bail is rendered almost impossible until the end of the trial which could take generations, a wholly unconstitutional interpretation of UAPA that strikes at the root of the fundamental right to life, personal liberties and speedy trial guaranteed under the Constitution. The Supreme Court judgment in Watali case needs to be reconsidered,” said justice Gowda.

Justices Gowda and Gupta maintained that a law should be there to deal with terrorist activities but a vague definition of “terrorist activity”, as provided under UAPA, had to go and the Supreme Court must lay down necessary safeguards.

About sedition, as provided under Section 124A of the Indian Penal Code, the retired judges said that there was no place for the sedition law in India since the offence was already punishable under various laws.

“In sedition, there is no case whatsoever for retaining this. This law should be shown the door as soon as possible,” said justice Gupta, adding the recent observations by Chief Justice of India NV Ramana on scrapping it gave hopes that the sedition law will have to finally go.

Justices Lokur and Gupta emphasised that it was time the authorities were made to pay compensation for illegal and unlawful detention of people to fasten financial accountability on the errant officials apart from bringing penal charges against them for the abuse of power.

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