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IPC has more than enough provisions to deal with cases of terror and unlawful associations

Father Stan Swamy’s case history reads like a litany of humiliation that no civilised nation should stand for.

In the middle of a raging pandemic, Swamy, an ailing octogenarian, was taken to custody at the Taloja jail, which like all prisons in India suffers from chronic overcrowding. When his health deteriorated, he was initially denied a straw and a sipper. His bail application on medical grounds was rejected. While doing so, the National Investigation Agency (NIA) court made several flimsy observations to justify its eventual decision. When the matter came before the Bombay high court, he was allowed to go to a hospital of his choice. But bail continued to be denied. Death, it seems, was the only way Father Swamy could be freed from our criminal justice system.

Let us consider the evidence the prosecution had marshalled against him. He was in contact with Sudha Bharadwaj, Varavara Rao and Arun Ferreira, all accused of terrorism and criminal conspiracy in the Elgar Parishad case. It is instructive to note that the main accused Varavara Rao is out on bail for medical reasons. But the same yardstick was seemingly not applied to Swamy.

Further, communist literature was found on a hard drive. This, coupled with a few surmises, was deemed sufficient to keep Father Swamy in jail despite his failing health. The NIA court observed that in light of the seriousness of the charges against him, the collective interest of the community would outweigh Swamy’s right of personal liberty and his old age.

Often in the popular imagination the law is a set of technical rules applied by expert and independent judges to the facts of any case. In bail matters, this impression is far from the truth. Bail is always a matter of discretion – sometimes like in cases under the Unlawful Activities (Prevention) Act, 1967 (UAPA), the discretion of the court is constrained. But the principle remains – granting of bail depends on the judge who hears the case. As a result, bail becomes the mark of the civility of the criminal justice system. When the system ensures that an octogenarian is denied bail repeatedly despite being sick and infirm, it advertises its own uncivility.

The law on bail cannot be an excuse to strip prosecutors and judges of their own humanity. Unfortunately, with an overzealous prosecution, a timid judiciary and an indifferent citizenry that has normalised judicial delays as a matter of course, this is exactly what has happened in this case. There is no milder way of putting this – irrespective of any crime he may or may not have done which will now forever remain inconclusive, Stan Swamy is dead because our criminal justice system lost its fundamental humanity. What is worse is that his case is not an isolated one.

Laws such as the UAPA are meant to be repressive, to be deployed at the slightest inconvenience to the state. The provisions of this Act have an extremely wide ambit – for example “membership” of a banned organisation can be deduced simply by possessing literature of an organisation. The Act gives the police sweeping powers and makes it nearly impossible for people to get bail. Unless, as is clear, like Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha, one gets lucky before a bench of brave high court judges. Unfortunately, such judgments are the exceptions that prove the rule.

According to the National Crime Records Bureau, as of 2019, over 95% of cases under the UAPA are pending before various courts in India. This amounts to 2,244 cases with at least as many accused, if not many more. The conviction rate under this Act stands at a mere 29%. Given the snail’s pace at which the criminal justice system works, the UAPA has become merely a tool to incarcerate people and keep them embroiled in the legal system for as long as the state desires. The process itself is the punishment.

Father Swamy’s death gives us yet another opportunity to re-examine repressive laws such as the UAPA. By the sheer number of provisions of the IPC applied to his case, it is crystal-clear that the Code is more than sufficient to handle incidents of terror, disaffection, unlawful associations, whatever they may be.

It is time for the UAPA to meet the same fate as its predecessors – TADA and POTA – and be struck off from our books. Our criminal justice system is founded on the rights afforded to the accused, not the least of which is the right to a fair trial. Or at least it was meant to. Laws like the UAPA that overtly belie this principle point only to the impotence of the justice system. In life, as in death, Stan Swamy, as a Jesuit priest was a ‘man for others’. It is time for us, the others, to not let his death be in vain.



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Views expressed above are the author’s own.



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