It is tragic that people booked under the Unlawful Activities (Prevention) Act continue to remain incarcerated on little or no evidence due to the stringent sections in the law, senior advocate Rebecca John said on Saturday, reported Live Law.
John, who has represented activists Vernon Gonsalves and Arun Ferreira in the Bhima Koregaon case, made the remarks during a panel discussion held for the launch of the book, Unsealed Covers: A Decade of the Constitution, the Courts and the State by author Gautam Bhatia.
The UAPA defines a “terrorist act” as “an act intended to disrupt law and order, public order or endanger the unity, integrity and security of the State or to spread terror in the minds of sections of people”.
Over the years, the law has been invoked to arrest number of activists such as Umar Khalid, Natasha Narwal and Asif Iqbal Tanha in the Delhi riots cases and even journalists such as Siddique Kappan and Fahad Shah.
On Saturday, John said that although the entire law was problematic, one can zero in on its two statutory provisions. “Section 43 which allows the custody of an individual to be extended from 90- days to 180 days, before a chargesheet is filed,” John said, “Section 43D(5), which places restrictions on the grounds of bail.”
She cited a 2019 Supreme Court judgement that had said that once the prosecution places its chargesheet and materials, it is presumed to be prima-facie true and it was up to the defense to prove that it prima-facie false.
However, she pointed out that there has been a slight shift in the last two months from the 2019 judgement and it was notable when the Supreme Court granted bail to Ferreira and Gonsalves in the Bhima Koregaon case.
She said that the Supreme Court concluded that evidence placed by the prosecution could not be accepted at face value and there is a need to have at least a surface level examination of the materials before granting or denying bail.
“The court proceeded to examine the documents in the Bhima Koregaon case and stated that much of these have no probative value,” she said. “In fact, they are hearsay in nature and must be rejected. Thus, the court opined that prima facie case cannot be invoked against the accused persons.”
However, she added that had Gonsalves and Ferreira not spent five years in jail, she would have not received this order from the Supreme Court.
Gonsalves and Ferreira were among the 16 activists, academics and lawyers who had been arrested in relation to the caste violence that broke out on January 1, 2018, in Bhima Koregaon village near Pune. They had been jailed under the Unlawful Activities Prevention Act without any reliable evidence.
“There are nine petitions pending in the Delhi High Court in the Delhi riots case for the past year-and-a-half and no order has been passed even now,” John said. “I think when the Supreme Court says the bail applications should be heard in two weeks time and decided within two or three weeks and when you see the court sitting on cases for a year-and-a-half, what is the message you are trying to send out.”
She added: “If this was an ordinary case where there was no chakka jam [protest where people block roads] or as the allegations say there were no speeches against NRC-CAA [National Register of Citizens and Citizenship Amendment Act], it is very likely they would have got bail many many months ago, but because there is UAPA attached to chargesheet, they continue to be incarcerated on little or no evidence.”
The Delhi riots case pertains to the clashes that had broken out between supporters of the Citizenship Amendment Act and those opposing it in February 2020 in North East Delhi, killing at least 53 persons and injuring hundreds. Most of those killed in the violence were Muslims.
The Supreme Court on September 12 had adjourned the hearing on a bail plea filed by Khalid for the sixth time in the case, in which he has been incarcerated since September 2020 under the provisions of the Unlawful Activities (Prevention) Act and criminal conspiracy.
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