"Are We Not Humans? Have We Lost All Touch Of Humanity? Are We Living In A Police State?"Justice Deepak Gupta On Father Stan Swamy's Death, UAPA

"The time has come that section 124A (of the IPC; on sedition) be held as unconstitutional", said Justice Deepak Gupta on Saturday. He also said that a law like the UAPA (Unlawful Activities Prevention Act) should not remain in the statute book in the present form.The former Supreme Court judge was speaking at a webinar by CJAR- "Discussion On DEMOCRACY, DISSENT AND DRACONIAN LAW- Should UAPA & Sedition Have A Place In Our Statute Books?" In the light of CJI N. V. Ramana's oral observations asking the Centre if it Is It Still Necessary To Continue Sedition Law, Which Was Used By British To Suppress the Freedom Movement, Justice Gupta expressed the hope that when the matter challenging the constitutionality of the provision is finally heard by the Court, it will be struck down.As regards the UAPA, while Justice Gupta stated that he is not suggesting that we do not require a law dealing with terrorist activities, he insisted that any such law should be with "well-defined territories" and not a "nebulous, vague definition of terrorism as is done in UAPA".He spoke of how this law has led to the incarceration of people for years at an end, where everyone, including the police, knows fully well that no case is made out UAPA is invoked as then the courts are reluctant to grant bail or they feel they cannot grant bail.The judge called "worrying" the rising trend of arrests under the UAPA and long years of incarceration which is followed by an acquittal or even a discharge. He mentioned Muhammad Ilyas and Mohammed Irfan, arrested from Nanded in August 2012 by the Maharashtra ATS, which linked them to a seizure of firearms and said they were part of a Lashkar-e-Toiba conspiracy to kill politicians, police officers and journalists, and who were recently acquitted by the NIA court. He spoke how after over 19 years after they were arrested, the court of the Chief Judicial Magistrate of Surat in March this year acquitted all 127 persons accused of "promoting a banned organisation", the Students Islamic Movement of India (SIMI) in 2001."Natasha Narwal (anti-CAA activist) didn't get bail but her father died during this period. Siddique Kappan's (journalist arrested in October 2020 en route to Hathras to cover the alleged gangrape-murder of a Dalit woman) mother died while he was in jail. Father Stan Swamy, 84 years old, suffering from Parkinson's disease (Bhima Koregaon accused who died in custody)! Are we not humans? Have lost all touch of humanity that this man requires bail? No doubt that the Bombay High Court did ensure he got proper treatment in jail but why could you not be free? The considerations of bail are that the accused should not run away from justice, he should not influence witnesses, he should be available for investigation. And the court had adequate power to put such a restriction if bail was granted to Father Stan Swamy", expressed Justice Gupta.The proviso to Section 43-D (5) of the UAPA states that an accused shall not be released on bail if the court "on a perusal of the case diary or the report made under section 173 of the CrPC is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true".The Supreme Court judgment in NIA v. Zahoor Ahmad Shah Watali (2020) ruled that it is not permissible for courts to even engage in a detailed analysis of prosecution case while considering bail under UAPA and to weigh whether evidence adduced by prosecution is even sufficient or not."What comes in the way is 43D and the judgement in the Watali case. Thankfully, in Najeeb's case (2021), the Supreme Court has taken a view that the powers of the superior courts to grant bail cannot be curtailed. In my opinion, a provision that takes away the power of superior courts to grant bail denies the power of judicial review to the accused person and therefore, is unconstitutional. You can lay down conditions for bail, as under the NDPS Act, but here, the condition is that you have to believe everything that has been said in the report under 173 and if you believe what the police has said in the 173 report, then there will be no bail. Every police officer worth his salt will ensure that the 173 report prima facie will make out a case", reflected Justice Gupta.Noting that the application of the UAPA is associated with antinational activities, the judge expressed that the district courts may be worried about the reactions on social media and public opinion if they grant bail. "It is for the High Courts and the Supreme Court to lead from the front. Because the superior courts have two roles-adjudicatory role and the role of being the protector and defender of human rights of the citizens", he urged.Justice Gupta spoke of the vagueness of the provisions of sedition and the UAPA and how they are consequently misused- "The Indian Constitution is one of the few constitutions in the world which has an Article like 32 where the right to move the Supreme Court for...

"Are We Not Humans? Have We Lost All Touch Of Humanity? Are We Living In A Police State?"Justice Deepak Gupta On Father Stan Swamy's Death, UAPA

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"UAPA (Unlawful Activities Prevention Act) should not remain in the statute book in the present form", said Justice Gupta

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