Former Supreme Court judges Aftab Alam, Madan B Lokur, Gopala Gowda and Deepak Gupta on Saturday raised concerns on the misuse of anti-terrorism laws in India, reported The Hindu.
Justice Gupta said the courts should intervene and lay down guidelines on the use of the Unlawful Activities (Prevention) Act. “The UAPA should not remain in this form,” he said. Gupta was speaking at a virtual conference on “Democracy Dissent and Draconian Laws – do UAPA and sedition have a place in our statute books”, organised by the Campaign for Judicial Accountability and Reforms.
The retired judge noted that Manipur activist Erendro Leichombam was arrested on charges of sedition for speaking out against cow urine being promoted as a cure for Covid-19. He asked whether we were living in a “police state”.
Leichombam and Manipur journalist Kishorchandra Wangkhem were arrested for their comments on May 13. On May 17, an Imphal court granted them bail, but before they could be released, the government invoked the National Security Act.
Leichombam and Wangkhem were granted bail this week with different courts observing that their continued detention was in violation of the right to life and personal liberty guaranteed under Article 21 of the Constitution.
On Saturday, Gupta also spoke about the death of 84-year-old tribal rights activist Stan Swamy, who died in custody on July 5. Swamy had been in jail for nine months in connection with the Bhima Koregaon case.
Swamy suffered from Parkinson’s disease and had contracted the coronavirus infection while in prison. He was repeatedly denied bail despite his deteriorating health condition. Swamy was the oldest of a dozen people, mostly academics and human rights activists, jailed under the Unlawful Activities Prevention Act in the case without any reliable evidence.
Citing Swamy’s case as an example, Gupta said that Section 48(d) of the UAPA takes away the power of courts to grant bail and order a judicial review which is unconstitutional, reported India Today.
“Vagueness of the law allows prosecution agencies to charge people,” he said. “Even 70 years after independence our judges don’t seem to realise what is sedition, what is terrorism.”
Justice Lokur said the courts, society and the state should consider the mental trauma afflicted on the families of activists, journalists and civil society members accused of sedition under the UAPA and are languishing in jail for months.
The retired judge asked what kind of society is being built where the families and friends of those jailed have to face barbs about their kin being called traitors for expressing their dissent.
“There is now something called soft torture,” he added. “I have been to children’s homes where there is one toilet for 50 children. Adult jails are perhaps better. But isn’t this torture?”
Justice Alam said the government has chances of diverting its attention from the actual 3% of terrorism cases by focusing on dissent. He pointed out that chargesheets were filed in only 42% of the cases registered under UAPA in 2019 even though the Act allows 180 days to file them after arresting the accused. For non-UAPA cases, the police get 60 to 90 days to file the chargesheet.
“Jails are being stuffed with people booked under UAPA, but only a minuscule get convicted,” said the former judge. “We are willing to rob our people of liberty without anything to show for it or without any accountability.”
Justice Gowda said the circumstances that led to Swamy’s death was alarming. “The NIA [National Investigation Agency] and the courts have failed to take into consideration that he was entitled to bail,” he said.
The retired judge said that laws such as UAPA give security agencies unbridled power and the government the situation to commit excesses.
Noting that the UAPA limits the power of judges to order a judicial review, Gowda said a law that takes away the constitutional courts’ authority to grant bail is itself unconstitutional.