17 Sep 2023 5:30 AM GMT
During a panel discussion held to mark the launch of the book, authored by Gautam Bhatia, ‘Unsealed Covers: A Decade of the Constitution, the Courts, and the State, Senior Advocate Rebecca John made strong observations about the Unlawful Activities (Prevention) Act, 1967 (UAPA). She stated: “What is the problem with UAPA? I mean, there are many problems… the whole act is problematic...
During a panel discussion held to mark the launch of the book, authored by Gautam Bhatia, ‘Unsealed Covers: A Decade of the Constitution, the Courts, and the State, Senior Advocate Rebecca John made strong observations about the Unlawful Activities (Prevention) Act, 1967 (UAPA). She stated:
“What is the problem with UAPA? I mean, there are many problems… the whole act is problematic but essentially, we can zero in two statutory provisions. Section 43 which allows the custody of an individual to be extended from 90- days to 180 days, before a charge sheet is filed. Section 43 D (5), which places restrictions on the grounds of bail.”
At this, she criticized the Supreme Court’s judgment in NIA v. Zahoor Ahmad Shah Watali, describing the same to be “albatross around our neck.” Explaining the Supreme Court’s approach in the said case, she said:
“The Supreme Court (in Watali Case) said that once the prosecution places its charge sheet and materials, it is presumed to be prima-facie true, and it was up to the defense to prove that it was prima-facie false. It (Court) said that there could be no probative examination of those materials and criticises the Delhi High Court's judgment for entering into a mini-trial while itself going into a mini-trial while dismissing the findings of the Delhi High Court.”
“So, everything that was said in favor of Watali was reversed by the Supreme Court holding a mini-trial.”
She went on to say that Watali’s judgment had set a very high threshold, which prohibited many accused persons from approaching the Court for grant of bail. However, she pointed out there has been a slight shift in the last two months from Watali’s proposition.
This happened recently when the Supreme Court granted bail to Bhima Koregaon-accused activists Vernon Gonsalves and Arun Ferreira. Therein, the Supreme Court re-examined Watali’s proposition and concluded that evidence could not be accepted at face value and there is a need to have at least a surface level examination of the materials placed before you 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. 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.
Notably, John, who argued Vernon Gonsalves’s case, explained that what weighed in the mind of the Court was the fact that on such bad material, the accused were in custody for five years.
“I am very happy to concede that had Vernon and Arun Ferreira not spent five years in Jail, I perhaps would not have got this order from the Supreme Court.”
She also highlighted how the Vernon Judgment can help in other cases to get bail, including in the matter of Umar Khalid. Further, she said that in Umar Khalid, there is no evidence of any terrorist activity for which UAPA was originally enacted.
Talking further about the delay in deciding the bail applications, she highlighted that although the bails of Asif Iqbal Tanha and Pinjra Tod activists Natasha Narwal and Devangana Kalita (accused in the Delhi Riots case) have been preserved, these bail orders of the Delhi High Court cannot be treated as precedent.
“I think when the Supreme Court says that bail applications should be 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 averred that had there been any ordinary cases, the accused persons would have gotten bail months ago, but because there is UAPA attached to the charge sheet, they continue to be incarcerated on little or no evidence. “So, this is really the tragedy of persons arrested under UAPA.”
The video of the event can be watched here
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