8 July 2023 11:46 AM GMT
Two years ago, on July 5, Father Stan Swamy died as an undertrial prisoner in the Bhima Koregaon case after 270 days of incarceration. The 84-year-old Jesuit priest and tribal rights activist – arrested over alleged links to Naxals – was the country’s oldest inmate charged under the anti-terror law, the Unlawful Activities (Prevention) Act. “But we still sing in chorus. A caged...
Two years ago, on July 5, Father Stan Swamy died as an undertrial prisoner in the Bhima Koregaon case after 270 days of incarceration. The 84-year-old Jesuit priest and tribal rights activist – arrested over alleged links to Naxals – was the country’s oldest inmate charged under the anti-terror law, the Unlawful Activities (Prevention) Act. “But we still sing in chorus. A caged bird can still sing,” he famously wrote in a letter from jail. But a storied life – of fighting injustice and defending human rights – came to a poor, undignified end, as Swamy battled not only with advanced Parkinson’s disease and coronavirus while awaiting trial, but also the apathy of the State that denied him basic amenities like socks, a sweater, and a blanket to stave off the cold of his jail cell, and a straw and a sipper to drink water.
This is not the only instance where prison authorities in India have been especially cruel to prisoners, particularly political prisoners – those that have been vocal critics of the ruling dispensation. From denying mosquito nets and telephone facilities, to denying medical care to inmates, our recent history is replete with several examples of deprivation of basic and inalienable human rights. Although wholesale prison reforms are needed to improve the living condition of all inmates and allow them to lead a life of dignity even under incarceration, political prisoners are at particular risk of state reprisal for daring to dissent – the reckoning coming in the form of cruel and unusual punishments meted out to them while in custody. Their detention itself is likely to be interpreted as either political retaliation or an attempt by the government to clamp down on criticism, or both. And a crucial component of the legal infrastructure that allows the government of the day to slap terror charges against run-of-the-mill activists and human rights defenders and cart them off to jail is overbroad legislation like the Unlawful Activities (Prevention) Act.
Although the anti-terror statute was enacted with the stated objective of combatting terrorism and ensuring national security, it is often weaponised by governments to target critics and silence dissent. Without adequate safeguards against arbitrary and illegal detention, prosecution on malicious and flimsy grounds, and prolonged pre-trial custody, the UAPA is an invaluable tool in the State’s arsenal which empowers it to crack down on civil society. Even though the rate of conviction under the act remains low, what makes the act a threat to the very fabric of democracy, among other things, is the stringent bail condition that makes it very difficult – and in some cases, near-impossible – for those accused under various provisions of the UAPA to get bail. While under ordinary law, an accused is entitled to default bail if a charge sheet is not filed within a period of three months and bail is the norm, not the exception, under special criminal statutes such as the UAPA, the period of incarceration without the filing of a charge sheet may be extended up to six months and a court of law can grant bail only where the allegations against the accused appear, on the face of it, false.
Sub-section (5) of Section 43D – inserted in 2008 after the Bombay terror attacks – prevents a court from granting bail to a terror accused if, based on the material provided by the police, there are reasonable grounds to believe that the case against the accused is prima facie true. In 2019, this provision was narrowly read by the Supreme Court in its Watali judgement in which judicial discretion in the granting of bail under the UAPA was further limited by disbarring courts from venturing into the merits of the case and assessing any exculpatory evidence provided by the accused. In other words, the determination preceding the grant of bail would be based only on the allegations by the law enforcement agency and their seriousness, and not scrutiny of the evidence and material on the basis of which the allegations are sought to be substantiated. Despite subsequent efforts by the apex court – most prominently in KA Najeeb – to offer some relief to prisoners accused under the UAPA and languishing for months and years in jail, the Watali ruling has not yet been overruled and its stringent interpretation lives on. Together with other provisions, such as the one criminalising mere membership of a proscribed outfit – recently upheld as constitutional by a three-judge bench of the top court – and prolonged pre-trial incarceration, the restrictive bail condition has created a recipe for the government to chip away at civil liberties, while hiding behind the fig leaf of fighting terrorism.
Never forget that Father Stan Swamy spent 270 days in jail before dying as a prisoner and that the octogenarian – whose body was racked with Parkinson’s disease and who found it insurmountably difficult to perform basic tasks such as drinking water from a glass – was repeatedly refused bail. The request for house arrest by wheelchair-bound GN Saibaba, an activist and former professor serving a life term for having Maoist links, was also denied by the Supreme Court when it stayed a Bombay High Court order discharging him. Delhi riots-accused and former Jawaharlal Nehru University scholar Umar Khalid has recently completed 1000 days behind bars. One does not need to agree with the politics of these prisoners, whom pro-government media gleefully terms as ‘anti-nationals’ and ‘Urban Naxals’, to spare a thought for them. Notwithstanding their ideology and political beliefs – and ours – when the bell of injustice tolls for them, it also tolls for us as a society.
“No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend’s or of thine own were; any man’s death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.” (John Donne).