Supreme Court's Judgment Expanding UAPA To Make Speech 'Terrorist Act' Puts Political Dissent At Risk : Rebecca John

Senior Advocate Rebecca John today raised concern over the Supreme Court's expansion of the definition of 'terrorist act' under Section 15 of the Unlawful Activities (Prevention) Act (UAPA) to include speech-related offences in the Gulfisha Fatima-Delhi riots larger conspiracy case.

She said that the text of Section 15 is abundantly clear that the essential ingredient under this provision is the use of weapons to establish physical violence. But the judgment, which denied bail to Umar Khalid and Sharjeel Imam, makes a textual expansion in order to deny bail. This "alarming" expansion runs the risk of bringing under the prosecution's scanner all kinds of political dissent, she remarked.

She remarked: "The dangers of this expansion or scope cannot be overstated, making speech a terrorist act is opening the doors to making any and all political dissent, subject to prosecution under UAPA. "

John was speaking at a public meeting organised to mark the 5th death anniversary of Father Stan Swamy, who died while awaiting bail in the Bhima Koregaon case pending trial for more than six years. 

She stated that during the COVID-19 pandemic, there was a high-powered committee set up to determine the certain class of prisoners who can be released on interim bail to decongest jails. However, exceptions were created for those in jail for offences under UAPA and investigated by the National Investigation Agency. Criticising this, John said that Swamy was the prime candidate for release as his old age and Parkinson's disease made him vulnerable to being infected.

John stated: "I would have thought that health vulnerabilities and age would be the basis of the release. The classification for release were irrational and wholly contrary to Article 21 of the Constitution, and as we saw in the case of Stan Swamy, exposed old and vulnerable persons to the virus. Stan's age, his Parkinson's ravaged body, the COVID he contracted in jail ought to have made him the prime candidate for release. But the deployment of UAPA against Stan made sure that that did not happen. The law was used and converted into a tool of oppression. I did not know Stan Swamy, but I know of the injustice of his incarceration, and ultimately, the injustice of his death."

Speaking on the UAPA, John commented that the statute is such that it doesn't need a finding of guilt to keep a person in jail for years. She stated that its provisions, particularly Section 43D(5) as interpreted by the Supreme Court in the Zahoor Ahmed Watali judgment, have produced a system in which accusation alone can function as a multi-year sentence. She added that the issue of delayed trials in UAPA was considered by the Court in KA Najeeb judgment in which it held that the rigours of Section 43D(5) will melt down when there is no likelihood of the trial within a reasonable period of time. 

However, John remarked that though we want to read KA Najeeb as a pro-liberty judgment, it has to be conceived, at best, an "apology" in the face of a law fortified by the same Courts that had all foreclosed the possibility of bail. She added that this small window opened by the Court in Najeeb was again subjected to fresh scrutiny in Gulfisha's judgment, where the Court said that Section 43D(5) requires individualised scrutiny.

Referring to the Syed Iftikhar Andrabi judgment, where another coordinate bench raised concerns over diluting the Najeeb principle in the Gulfisha's judgment, John said: "We find a peculiar situation where fundamental freedoms in the Constitution have to play catch-up with legislative embargoes instead of legislative provisions being subjected to constitutional scrutiny."

Adding to this, John pointed out that there is now an overwhelming body of evidence of shoddy quality of investigations and prosecutions under the UAPA that contribute to the prolongation of pre-trial custody. But the Supreme Court chooses to act in a "managerial role" such as directing to set up of additional special courts to conclude UAPA trials.

"The Supreme Court does not seem to be interested in questioning the abhorrent quality of evidence or in considering the serious and periling of fair trial rights of accused persons in expedited trials when they often have very poor quality of legal representation. This mindless push for expediting is happening in the context of what are already questionable fair trial standards in NIA special courts"

John also criticised the provision on protected witnesses which allows the accused persons to be supplied with witness statements anonymously and parts of which are redacted to the point that it makes the statement indiscernible. Adding to this, the protected witnesses are placed across an opaque partition, out of sight of the accused and their counsel. 

"This practice strikes at the very root of fair trial principles without access to the identity and background of the witness or their complete statements. No effective cross-examination is possible. This would be an unacceptable practice for any trial, but is particularly egregious in the context of NIA prosecutions. We are looking at typically voluminous records with multiple allegations against multiple accused persons. In offenses against the state that come with a with a high quantum of punishment. The accused often belong to socio-economic marginalized backgrounds with no access to quality legal representation."

Adding to this, she concluded that the recent NIA's move seeking cancellation of bail to four Bhima Koregaon accused for being together at a press Club event demonstrates that the State is far more committed to maximising the punitive potential of the criminal process than to ensuring the trials conclude with fairness and efficiency. 

The event also saw the presence of Advocate Nizam Pasha, human rights activist Nadeem Khan, Delhi University's professor Saroj Giri and retired professor Nandita Narrain, and senior journalist John Dayal.

Related - 5 Years Since Stan Swamy's Custodial Death : No Lessons Learnt, Concerns Over UAPA Abuse Persist