New Delhi: In a recent panel discussion during the launch of the book Unsealed Covers: A Decade of the Constitution, the Courts and the State by author Gautam Bhatia, senior advocate Rebecca John raised serious concerns about the continued incarceration of individuals booked under the Unlawful Activities (Prevention) Act (UAPA) with little or no evidence.
John, known for her representation of activists Vernon Gonsalves and Arun Ferreira in the Bhima Koregaon case, criticized the stringent sections of the UAPA, shedding light on the challenges faced by those detained under this law.
The UAPA defines a "terrorist act" as an act intended to disrupt law and order, and public order, endanger the unity, integrity, and security of the state or spread terror among sections of the population. Over the years, the law has been controversially invoked to arrest numerous activists and journalists, including Umar Khalid, Natasha Narwal, Asif Iqbal Tanha, Siddique Kappan, and Fahad Shah.
John pointed out two specific statutory provisions within the UAPA that have raised significant concerns. "Section 43 allows the custody of an individual to be extended from 90 days to 180 days before a chargesheet is filed," she said, "Section 43D(5) places restrictions on the grounds for bail."
She referred to a 2019 Supreme Court judgment that presumed the prosecution's chargesheet and materials to be prima facie true, placing the burden on the defence to prove otherwise. However, she noted a recent shift in the Supreme Court's stance, particularly evident when it granted bail to Ferreira and Gonsalves in the Bhima Koregaon case.
John highlighted that the Supreme Court, in this case, had examined the prosecution's evidence critically and found much of it to be hearsay and lacking probative value. Consequently, the court opined that a prima facie case could not be invoked against the accused persons.
However, she lamented that Gonsalves and Ferreira had spent five years in jail before receiving this order from the Supreme Court. Both were among the 16 activists, academics, and lawyers arrested in connection with the caste violence that erupted on January 1, 2018, in Bhima Koregaon village near Pune. They had been jailed under the UAPA without reliable evidence.
John also drew attention to the sluggish progress of bail applications in the Delhi High Court in the Delhi riots case, which has been pending for over a year and a half. She emphasized the disparity between the Supreme Court's directives to expedite bail hearings and the reality of cases being delayed for extended periods.
"If this was an ordinary case without allegations of chakka jam or speeches against NRC-CAA, they would likely have been granted bail many months ago," John asserted. "However, because the UAPA is attached to the chargesheet, they continue to be incarcerated on little or no evidence."
The Delhi riots case stems from clashes between supporters and opponents of the Citizenship Amendment Act (CAA) in February 2020 in North East Delhi. The violence resulted in at least 53 deaths and hundreds of injuries, with a majority of the victims being Muslims.
Recent developments in the case, including the repeated adjournment of Umar Khalid's bail plea, have sparked a renewed debate over the UAPA's stringent provisions and their impact on individuals' access to justice. Critics argue that the law's broad definitions and extended detention periods raise serious concerns about civil liberties and due process.