Varavara Rao, accused related in Elgar Parishad, Bhima Koregaon case, Mumbai, Friday 28 February, 2020 (HT PHOTO)
Varavara Rao, accused related in Elgar Parishad, Bhima Koregaon case, Mumbai, Friday 28 February, 2020 (HT PHOTO)

How UAPA curtails personal liberty, undermines fair trial

To stop UAPA from continuing to be the tool of repression that it has become, it is vital that the courts either strike down — or substantially read down — this section, and ensure that years in jail do not become an automatic consequence of the police’s (read: the State’s) decision to charge inconvenient opponents under this law.
By Gautam Bhatia
UPDATED ON FEB 16, 2021 06:31 AM IST

The recent finding of Arsenal Consulting, an American digital forensics firm, that the laptop of jailed activist Rona Wilson had been tampered with, has brought the infamous Bhima Koregaon case back into the spotlight. The case arose out of certain events on January 1, 2018 (the anniversary of the 19th century battle of Bhima Koregaon), and led to the arrest of numerous well-known activists and civil society figures, such as Sudha Bharadwaj and Varavara Rao. These individuals were accused of participating in a conspiracy against the life of the prime minister, and have now been in jail for more than two years. Multiple bail applications have been denied, but the trial is yet to start.

The Arsenal report is important because it casts doubt upon a key lynchpin of the prosecution’s case — a series of letters alleged to have been recovered from Wilson’s laptop — which spelt out the details of the conspiracy. While legal wrangles will undoubtedly follow about whether — and how — this new material is considered by the court (a petition has already been filed in the Bombay High Court), these circumstances and the Bhima Koregaon case offer an opportunity to focus on the numerous problems with criminal trials in India.

At the heart of the issue is Section 43D(5) of the Unlawful Activities Prevention Act (UAPA). UAPA is India’s anti-terror law, and has been invoked in the Bhima Koregaon case. This law makes it very difficult for judges to grant bail in UAPA cases, by effectively barring the grant of bail as long as a prima facie case exists against the accused. The Arsenal report is a good example of how this operates in practice. For the report to be considered by a court, it will need to be introduced as evidence by the accused, its authors will need to be cross-examined by the prosecution, and the prosecution will (likely) produce its own expert witnesses to rebut the report’s conclusions.

Given the pace at which criminal trials proceed in India, speaking optimistically, this is unlikely to happen in less than a year. None of this, however, will affect the prima facie validity of the case against the accused (which requires the court to assume that the emails are genuine), and consequently, because of Section 43D(5), the accused will continue to remain in jail.

The combination of two factors, therefore — Section 43D(5) and the long pace of trials in India — effectively means that the moment UAPA is mentioned in the police charge-sheet, anyone accused in that case is, for all practical purposes, sentenced to many years in jail without trial. UAPA compels courts to look only at the police version, discount the defence’s arguments (as these can only be raised during the trial), and, on that basis, decide whether or not to grant bail.

This situation has been made worse by Supreme Court (SC) judgments such as the notorious Watali case which, instead of interpreting such draconian laws in order to expand the scope of personal liberty, have made the grant of bail even more difficult — by giving vague and wide-ranging definitions to terms such as “conspiracy”, and preventing courts from making even common-sense conclusions about evidence that is clearly inconsistent or manufactured. While there is still space for courts to interpret UAPA in a manner that does not entirely efface personal liberty, very few such judgments have been forthcoming.

Very recently, however, there were small signs that the pendulum might be swinging back. In another judgment, the SC noted that courts could grant bail in UAPA cases where fundamental rights had been violated (such as the right to a fair trial, due to extensive delay). This is a beginning, but not enough.

To stop UAPA from continuing to be the tool of repression that it has become, it is vital that the courts either strike down — or substantially read down — this section, and ensure that years in jail do not become an automatic consequence of the police’s (read: the State’s) decision to charge inconvenient opponents under this law.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal

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