On 5 April 2024, the Supreme Court granted bail to former Nagpur University professor and activist Shoma Sen, stating that the allegations against her – of indulging in terrorist activities or working for a terror group – were prima facie "not true", and that no case was made out against her for offences under the extremely stringent Unlawful Activities (Prevention) Act or UAPA.
Shoma Sen is among the 16 accused in the Elgar Parishad case, all of whom were arrested under the UAPA.
Sen's bail order is not an isolated one. There is a 'pattern' here. For greater clarity, let's rewind to 18 November 2022, when the Mumbai High Court granted bail to former IIT professor, Anand Teltumbde, another Elgar Parishad case accused, saying that prima facie, he had "not indulged in a terrorist act."
In fact, while dismissing the National Investigation Agency's (NIA) petition against Teltumbde's bail order, India's Chief Justice, DY Chandrachud, even asked why UAPA had been applied. He also asked the NIA why Teltumbde's call for 'Dalit mobilisation', made during a public speech, had been equated with terrorist activity.
But he stopped short of raising another key question – why didn't the lower court judge award bail to Teltumbde much earlier, on these very same grounds?
Understanding the 'Pattern'
On 28 July 2023, the Supreme Court granted bail to activists Vernon Gonsalves and Arun Ferreira, once again rejecting the NIA's contention that they "committed offences relating to support for a terrorist organisation."
Two months later, on 21 September 2023, the Bombay High Court gave bail to activist Mahesh Raut saying "there is no corroboration at all" that he received money from the CPI (Maoist) party.
On 19 December 2023, activist and journalist Gautam Navlakha was granted bail by the Bombay High Court as "no covert or overt terrorist act under UAPA had been attributed to him."
So that is the 'pattern' – bail order after bail order of those arrested in the Elgar Parishad case, spelling out that there was no prima facie evidence against the accused of being terrorists, or of belonging or actively supporting a terror group. Therefore, no evidence to justify their arrests under the oppressive UAPA. Of the 16 arrested, some have got bail after 4, 5, 6 years spent in jail, while some are still behind bars.
And tragically, one of them, 83-year-old pastor and activist Stan Swamy died in custody, denied bail despite his age and crumbling health.
The question to ask is – doesn't the Supreme Court see the 'pattern' here? Of arrests being made under UAPA only to take advantage of the draconian nature of the law, which allows years to go by before an accused can hope even for bail? Don't these multiple bail orders make it abundantly evident that the UAPA has been exploited to allow 'due process' itself to become the 'punishment' for political opponents and dissenters?
Don't the concerned state High Courts and the Supreme Court – where the bail pleas of many others arrested under the UAPA are pending – see the pattern of 'insufficient evidence' emerging in case after case? Why is the Supreme Court not firmly and strongly calling out this abuse of the UAPA?
Why Aren't the Courts Doing More?
On 5 March 2024, the Bombay High Court (Nagpur bench) acquitted former Delhi University assistant professor GN Saibaba and 3 others of charges of being members of CPI (Maoist) or its front groups. They had been convicted by a trial court in 2017. The High Court said the prosecution had failed to prove the case against the accused, and called it a 'failure of justice'.
One of Saibaba's co-accused, Pandu Narote, died in prison before his innocence could be established. A wheelchair-bound Saibaba spent almost 10 years in jail before being acquitted.
Even in several of the arrests made under UAPA after the 2020 northeast Delhi riots, the subsequent bail orders of some of the accused have clearly underlined the lack of evidence to justify the slapping on of the UAPA in these cases. In June 2021, granting bail to student activists Devangana Kalita, Natasha Narwal and Asif Tanha, the Delhi High Court stressed that prima facie, it did not feel that the accusations were chargeable under sections of the UAPA.
In fact, the court also said "it appears that in its anxiety to suppress dissent… the State has blurred the line between the constitutionally guaranteed 'right to protest' and 'terrorist activity'. If such blurring gains traction, democracy would be in peril."
So, again one must ask – with this 'pattern' being so evident, why is the Supreme Court not fast-tracking the remaining similar UAPA cases, which have also possibly been built on similarly flimsy evidence?
Selective Application of UAPA
The other question is – why don't we hear the concerned High Courts or the Supreme Court calling for fixed time frames to be added to even the strictest sections of the UAPA, within which charges must be framed? And within which evidence against the accused must be presented, examined, and evaluated by a trial court. At least, to determine bail.
It is an abuse of justice that these time frames are so elastic and oppressive that an accused may spend up to 6 years or more in jail, just waiting for a bail hearing.
There is also another 'pattern' that needs to be underlined, of the UAPA being selectively applied. When hate speeches and calls for violence against Muslims are delivered by extremist Hindutva activists like Narsinghanand, Prabodhanand, Suresh Chavhanke, Kajal Hindustani, and others, we rarely see FIRs and arrests.
And if charges are filed, we find that UAPA is not applied, and so, bail is granted within days. We also see that when these Hindutva radicals flagrantly violate their bail provisions by making hate speeches yet again, there are no re-arrests.
Yeh Jo India Hai Na, here, who is going to set right this abuse of the UAPA? If not the Supreme Court of India, then who?
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