Draconian laws like UAPA must be reviewed in keeping with Justice Chandrachud’s public remarks on their misuse

On a day when a plea seeking bail filed in Bombay High Court by noted social activists Surendra Gadling and Sudhir Dhawale was challenged by the NIA, which virtually condemned them as ‘terrorists’, public remarks made by Supreme Court judge Justice D Y Chandrachud that “criminal law, including anti-terror legislation, should not be misused for quelling dissent or the harassment of citizens” gave those charged with such offences merely for dissenting with the government of the day a ray of hope.

Addressing a virtual conference jointly organised by American Bar Association, Society of Indian Law Firms and Chartered Institute of Arbitrators on July 11, Justice Chandrachud, one of the most respected judges of the apex court, stated that the Supreme Court “plays the role of a counter-majoritarian institution,” adding that it is the court’s “duty to protect the rights of the socio-economic minorities.”

“Our courts must ensure that they continue to remain the first line of defence against deprivation of liberty of citizens. Deprivation of liberty even for a single day is one too many. We must always be mindful of the deeper systemic implications of our decisions,” he said.

It is noteworthy that the social activists in question, working for the welfare of disadvantaged sections of society, were allegedly framed by the then BJP-led Maharashtra government in what came to be known as the Bhima Koregaon case and have been in prison for over two years now. When the BJP government fell in Maharashtra, the case was quickly transferred to the NIA to prevent the successor of the then chief minister Devendra Fadnavis from fairly reviewing it.

This is an obvious instance of the misuse of the anti-terror law UAPA by the Modi regime to harass dissenters and protestors.

Justice Chandrachud might have had this controversial case in mind, besides others, when he spoke on the subject, though he did not cite it as an instance.

Another case that springs to mind is that of the Uttar Pradesh government led by chief minister Yogi Adityanath keeping Kerala journalist Siddique Kappan in jail after being booked under UAPA merely because he was heading to Hathras to report on the infamous gangrape-murder of a Dalit woman there. He was allegedly tied to a cot during hospitalisation, and was unable to even attend the funeral of his mother.

It is also pertinent to recall that Delhi High Court granted bail to student activists Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, booked under UAPA in connection with the Delhi riots, observing that they could not be termed as ‘terrorists’ under the law. The Delhi Police, which reports to the Centre, had rushed to Supreme Court challenging the same. The SC did not cancel the bail orders, but agreed to examine Delhi High Court’s observation that the State had submitted no evidence to substantiate its charges under the draconian law.

Incidentally, the actual release of the three activists, lodged in Tihar jail, was delayed on a flimsy pretext, substantiating the view that this was done only in expectation of the SC staying the HC’s orders.

As retired Supreme court judge Justice Madan B Lokur had pointed out, “The conduct of the police suggests that they were desperate to file an appeal in the Supreme Court before Devangana, Natasha and Asif were released. They used every possible trick to stall their release by preparing an appeal overnight and get it ready for filing.”

During the virtual conference, Justice Chandrachud also mentioned the urgency to decongest prisons. “While it is important that prisons are decongested because they are highly susceptible to becoming hotspots for the virus, it is equally important to examine why prisons are congested in the first place.”

Unfortunately, the ground reality is that Father Stan Swamy, a 84-year-old social activist working for the welfare of tribals of Jharkhand who was suffering from Parkinson’s disease, who was charged under UAPA in the Bhima Koregaon case and incarcerated for several months in the over-congested Taloja jail, ended up losing his life to COVID that he evidently contracted in prison.

All through, the NSA kept objecting to his pleas for bail even on genuine medical grounds.

It is also a fact that on the very day that Justice Chandrachud was speaking at the event, a special court in Mumbai rejected the bail plea of IIT professor Anand Teltumbde, also behind bars awaiting trial in the Bhima Koregaon case along with Sudha Bhardwaj, Gautam Navlakha and more than a dozen others.

What is ironical is that months after the probe into the case was initiated, the NIA has not bothered even to interrogate, let alone arrest, those who instigated the violence on 2 January 2018, which allegedly includes Sambhaji Bhide and his accomplice Milind Ekbote, associated with the Hindutva brigade and thus enjoying BJP patronage.

Further, the trial in the case has not even begun, reinforcing the impression that the accused may be behind bars for a long time, serving the interest of the investigation agency and the regime in power.

Senior Supreme Court advocate Chander Uday Singh has stated, “That the UAPA is grossly abused goes without saying. That it is invoked disproportionately against minorities, indigenous people, tribals and increasingly those who stand up for them, is well known. Bail is hard to get once arrested under UAPA, which often prompts investigating agencies to slap UPAPA charges on political dissenters or protestors when they manage to obtain bail under regular criminal laws.”

Listing some half a dozen cases in which those hailing from the Muslim community languished in jails for years, if not decades, only to be acquitted honourably by courts because of unsubstantiated charges slapped on them, Singh has suggested the exertion of Law of Torts to demand appropriate and adequate compensation from prosecuting agencies for deliberately and maliciously keeping them imprisoned on trumped up charges.

One hopes that Justice Chandrachud’s observations would act as a guiding principle for our courts in the future, and that provisions of draconian laws such as UAPA undergo judicial review as soon as possible in view of their blatant misuse by the government of the day.

Views are personal