83-year-old Stan Swamy is suffering from Parkinson’s, a neurodegenerative disease that makes patients experience tremors, making the performance of routine tasks difficult. The severity of his condition is such that he requires a straw and a sipper to have liquids without spilling. However, on 22 March, his plea seeking release from jail on medical grounds was rejected by a Special NIA Court.
While denying bail to Swamy, the court noted that the ‘collective interest of the community’ outweighs Swamy’s right to personal liberty. The court further said that his old age and “alleged sickness” would not go in his favour.
In a judgment that runs into 74 paragraphs, not a single paragraph is dedicated to why Swamy’s serious health conditions and his old age should not be considered for deciding his release on bail.
Medical Condition as a Ground for Bail
On 22 February 2021, the Bombay High Court had granted bail on medical grounds to 81-year-old Varavara Rao, another co-accused in the Bhima Koregaon violence case. Rao was in custody since 28 August 2018, awaiting the trial to commence in a criminal case slapped against him.
The court, in that case, recognised Rao’s old age and inadequate conditions in jail as cogent reasons for releasing him from prison. While taking note of the rights-violation of keeping such a man incarcerated, the court said:
“If we deny relief to the petitioner (Rao), we will be abdicating its Constitutional duties as a protector of human rights and right to health covered under Article 21 of the Constitution.”
Allegations Against Swamy Are Prima Facie True
The court’s reasoning on denying bail to Swamy squarely rests upon Section 43D of the Unlawful Activities Prevention Act. The said section provides for rejection of bail application if the court, after considering the police report and case diary, forms an opinion that the allegations against the accused are prima facie true. Therefore, the threshold of seeking bail is higher in UAPA, as compared to the criminal procedure code.
In the National Investigation Agency vs Zahoor Ahmad Shah Watali case, the Supreme Court laid down factors that the judge shall consider while deciding bail in UAPA cases. To decide whether the accused has prima facie committed the offence or not, the court has to look at the following principles:
- Nature and gravity of the charge
- The severity of the possible punishment in the event of conviction
- The danger of the accused not being available for trial
- Character, behaviour, means, position, and standing of the accused
- Likelihood of repetition of the offence
- Possibility of tampering with the evidence
- Possibility of justice being thwarted by grant of bail
The present order only focuses on the nature and gravity of the charge. The adequate consideration of other principles laid out in Watali judgment, like the character and behaviour of the accused, and the possibility of tampering with the evidence, is woefully neglected.
While restricting itself to the nature and gravity of the offence, the court observed that evidence produced by the state suggests that Swamy was an active member of the banned organisation CPI (Maoist). Although, the court refused to comment on the admissibility of the evidence it relied upon to reach this conclusion.
“It can be gathered that the applicant along with other members of the banned organisation hatched a serious conspiracy to create unrest in the entire country and to overpower the government, politically and by using muscle power. The material placed on record thus prima facie denotes that the applicant was not only the member of banned organisation CPI (Maoist) but he was carrying out activities further in the objective of the organisation, which is nothing but to overthrow the democracy of the nation.”Special NIA Court
Medical Grounds Should Not Be Ignored
Senior Advocate Mihir Desai, who represented another Bhima Koregaon accused Vernon Gonsalves before the Bombay High Court, told The Quint that the medical condition of the accused is one of the significant considerations in bail matters.
“The age and health of the accused should be of serious consideration in bail matters, considering the overcrowding in jails and the ongoing pandemic.”Senior Advocate Mihir Desai
Desai further said there are serious issues with the Watali judgment itself, the one which was heavily relied upon by the Special Court in denying bail to Swamy. He informed The Quint that he believes that Section 43D of the UAPA is in itself unconstitutional, and he wishes to challenge its validity before the Bombay High Court.
Desai said that while it’s true that the court cannot evaluate the merits of the evidence during bail proceedings, it doesn’t mean that the court should simply rely upon inadmissible evidence to defeat the presumption of accused’s innocence.
The principles laid down in Watali’s judgment has been grossly misrepresented by the subordinate courts. The subordinate courts, while relying upon the said judgment, only focuses on the nature and gravity of the offence and ignore factors that support releasing the accused on bail.
“Special courts think that the Watali judgment asks them to accept everything that the police produces before them. That’s completely wrong. I mean why do we even need Section 43D then? Just keep the accused incarcerated.”Mihir Desai
When Process Becomes Punishment
On February 10, 2021, Union Minister of State for Home Affairs informed the Upper House of the Parliament that Only 2.2 % of cases registered under the Unlawful Activities (Prevention) Act between the years 2016-2019 ended in convictions by the court.
While the conviction rate remains abysmally low, the National Crime Records Bureau data shows that the arrests under UAPA have significantly increased since 2014. Moreover, in more than half of the cases, the investigation agency doesn’t even file the charge-sheet.
While in half of the cases registered under UAPA charges are later dropped, in all the cases the accused ends up spending prolonged time behind bars. The draconian provision on bail, Section 43D, ensures that it becomes near impossible for UAPA accused to get released on bail. Therefore, an overwhelming majority of UAPA accused continue to languish in prison with a terrorist tag, only to be proved innocent much later.
As Stan Swamy’s legal team gears up to challenge the Special Court’s order before the Bombay High Court, it is waited to be seen whether the High Court will apply the same rule in Swamy’s case, which it did in the case of Varavara Rao.
In Varavara Rao’s case, the Bombay High Court had recognised the prolonged incarceration of an old and seriously ill man as a violation of his right to life and liberty under Article 21. There are no reasons as to why the same should not be extended to Stan Swamy, who if anything, is two years older than Rao.