Senior advocate Anand Grover has represented poet Varavara Rao and professor Shoma Sen imprisoned without trial since 2018 under the Unlawful Activities (Prevention) Act in charges including a police-alleged plot to assassinate PM Narendra Modi.
It is a failure of the whole criminal justice system. There is a breakdown of the rule of law – whether it is the police, the prosecutor, the jail or the courts! They have not done their duties in accordance with the law.
First of all, we have an oppressive law, the UAPA, in which "terrorism" is defined in an overbroad manner, where bail is difficult, if not impossible to get.
Second, it is applied arbitrarily, selectively and oppressively by the executive, applying it when there is no basis, only to ensure that bail is not granted.
Third, the courts are not subjecting the actions of the executive to proper scrutiny.
Finally, the jails are oppressive institutions, which ensure that vulnerable and aged prisoners fall sick with no chance of recovery.
Father Stan Swamy need not have died. The system has failed him. He is the epitome of what is wrong in our criminal justice system.
People have died even earlier. We came to know that on 12 January this year Kanchan Nanaware had died in jail custody. She and her husband, Arun Bhelke, were arrested in Pune [in September 2014].
They had allegedly forged identity cards and were picked up by the police. They could have been charged with an offence of forgery. But, conveniently, they were labelled as Maoists and slapped with offences under the UAPA, denied bail and sent to Yeravada jail in Pune.
In prison, Kanchan had complained of severe headaches and breathlessness. She was taken to Sassoon Hospital where a lump in her brain was detected. Unconscious, she was operated upon for brain surgery, without her husband Arun's consent or knowledge.
She passed away in the ICU. She was only 37. Arun, her husband, also in jail, was informed about this only on 19 January, five days later. On the 19th and 20th he had waited to be taken to see her. But Kanchan had passed away by then.
The matter for bail was pending in the Bombay High Court. On her death, her petition was simply dismissed. Kanchan was forgotten and buried under the labyrinth of court records. The judicial system did not bat an eyelid on her death in jail custody.
Father Stan Swamy, on the other hand, had become a public issue, nationally and internationally. Everyone knew about Stan Swamy. But that did not make a difference. The system discarded him like a host of others.
In the UAPA, the conviction is less than 2.5%. So, why are we doing all of this?
The tragedy is that the prosecution succeeded. They have a reason for what they are doing, to teach a lesson and send a chilling message to all who dissent. They, like Father Stan Swam, will meet the same fate. That is the message. It is a slow death in prison. But as some believers say, God freed Father Stan from that agony.
Somebody has to be accountable for this. His arrest, putting him in jail, not providing treatment, repeated adjournments, all need to be enquired into by the Bombay High Court in the ongoing matter.
Kanchan Nanavare
The only thing that happened was on the 31st of December, there was Elgar Parishad. The organization of the Elgar Parishad was under a Committee headed by [former Supreme Court] Justice P.B Sawant.
Speeches were made, poems recited and songs were sung all swearing allegiance to the Constitution. Nothing happened after that. No violence took place after that.
The next day, the right-wing groups tried to obstruct the commemoration of the 200th anniversary [of the Bhima Koregaon battle] at the Vijay Stambh. It was a different occasion altogether, which led to violence later on.
You cannot link Elgar Parishad with the violence. Even if you do link violence with the Elgar Parishad, it is at the most a riot. There is a law for that.
How can you call this terrorism? The UAPA does not come in. Invoking UAPA is misusing it.
Bail applications have been made by everyone, one time or the other. They have been dismissed by the trial courts. Appeals against them are going on. In these appeals, a number of the Bhima Koregaon activists are arguing that they should be granted statutory bail, i.e. after a particular period in jail, say 60, 90 or 180 days as the case may be, if the charge sheet is not filed, the person in custody can apply for statutory bail and as of right gets bail.
But to that ordinary law of Criminal Procedure Code (CrPC) is made applicable with the safeguards for the accused. But for UAPA and other laws, like NDPS Act, PMLA different procedures, not CrPC, are applicable, in which rights of the accused truncated.
In my opinion, different procedures are not required. Under the IPC, waging a war is the highest of offences. The procedure applicable to it is the ordinary CrPC. If the ordinary CrPC is applicable to the offence of waging a war, why should there be a different procedure, a lax procedure for the state, for the offence of "terrorism"?
If you need to have a law on terrorism, on account of international obligations, then either the IPC should be amended to include terrorism, or the terrorism law should have the same procedures as the CrPC.
And why can the State continue to do this? Because in India there is no accountability. If you have been in prison and acquitted, there is no recourse or remedy for compensation in India. They are not accountable to anyone, the ED, the NIA, even the regular police!
In other countries, if one is wrongly prosecuted they can sue the police or the government and sue for damages, and heavy ones too.
First UAPA and similar laws, the NDPS Act, PMLA [Prevention of Money Laundering Act] etc – their origins are in the NDPS Act – are a departure from ordinary criminal law, whereby the prosecution has to simply show that there is a prima facie case made out to sustain an offence. The threshold is low for the prosecution.
Moreover, the Supreme Court in [Zahoor Ahmad Shah] Watali's case has made it even more difficult, directing that the court cannot scrutinize the evidence closely. That is what the Delhi High Court tried to change in Asif Tanha's case.
That apart, in such cases the legal system is pro-prosecution and weighed against the accused. The Constitution dictates that the judges should think of the liberty of the individual, but that is not the way the system works.
Whether it is the Narcotic Drugs and Psychotropic Substances Act, sedition, PMLA or UAPA, in all such cases there is a strong prejudice against the accused.
The prejudice is so strong that even medical bail is not granted by some judges. In fact, under all these laws, UAPA included, medical bail is not ousted. In fact, the Code of Criminal Procedure has preserved on medical bail. That is how Varavaro Rao got medical bail without going into merits.
The state is all-powerful and the agencies have become oppressive tools in the hands of the government. These agencies are supposed to be independent but that is not the case. The description of being a "caged parrot" does not only apply to the CBI; it equally applies to ED, IT, NCB etc.
There is a chilling effect on everybody, activists, dissenters etc. Even lawyers are not spared. Surendra Gadling, one of the now Bhima Koregaon 15, is an extremely competent lawyer, who was defending so many activists, including those alleged to be "Maoists." Now he is inside on allegations that he is a "Maoist." Now his other colleagues are also being tracked.
This was going on even before under the Congress regime. The present government has merely perfected the art of destroying the independence of all institutions and thereby the rule of law.
The idea is to label you as a "terrorist", "drug user", "money launderer", arrest you and put you in jail.
In Father Stan Swamy's condition, the chargesheet was filed, he was arrested and put in jail. He was not interrogated after his arrest. So what was the need to arrest? In his condition, he could not have fled. He was over 83 years, suffering from Parkinson's disease; he needed a sipper to drink. On the contrary, he was interested in proving his innocence. Putting in him jail was to simply torture him.
Once an accused is put in jail, the jail conditions do the rest. The conditions inside the jail are pathetic. Taloja jail, where Father Stan Swamy was, doesn't have any allopathic doctors, only three Ayurvedic doctors, no laboratory for investigations, no nurses nor attendants. His co-accused, Vernon Gonzalves and Arun Ferreira doubled up as his attendants.
On top of that, he contracted Covid19. He needed to be released on medical bail. The Covid protocol for prisoners did not allow prisoners charged under UAPA to be released as a matter of practice.
There was no rationale for it. Anybody in Stan Swamy's condition, would suffer deterioration of health and succumb to his illness. That was the idea.
He applied for medical and regular bail. But he was not granted bail by the courts. To his credit, Justice Shinde put him on medical treatment at the Holy Family Hospital.
The prosecution is not bothered. They only want to score victories. For them, Father Stan Swamy was an example to set. It shows what power they have to send a message, and it has gone out, that any person, like him, can die in jail, be aware!!
It has a chilling effect on people who want to oppose the government. His death is just a statistic for them.
Congress votes for UAPA amendment bill in the Council of States, 2019
POTA failed, TADA failed, UAPA is also shown to have failed. Under the UAPA, the definition of terrorism is overbroad, the conditions for bail are made extremely difficult. The threshold to refuse bail is extremely low. UAPA is open to misuse. It has to go. You cannot have this kind of law. Trials are not held for ages. People languish in prison for unduly long time. It is only used as a tool to terrorize activists and dissenters.
Is there a need to have a law on terrorism? What is the difference between waging a war and terrorism? Waging a war is a more serious crime than terrorism. But to that ordinary law of the Criminal Procedure Code is made applicable.
But for UAPA and other laws, like the NDPS Act, PMLA different procedures and not the CrPC are applicable, which allows misuse.
In my opinion, different procedures are not required. Under the IPC, waging a war is the highest of offences. The procedure applicable to it is the ordinary CrPC. If the ordinary CrPC is applicable to the offence of waging a war, why should there be a different procedure, a lax procedure for the state, for the offence of "terrorism"?
If you need to have a law on terrorism, on account of international obligations, then either the IPC should be amended to include terrorism, or the terrorism law should have the same procedures as the CrPC.
And why can the State continue to do this? Because in India there is no accountability. If you have been in prison and acquitted, there is no recourse or remedy for compensation in India. They are not accountable to anyone, the ED, the NIA, even the regular police!
In other countries, if one is wrongly prosecuted they can sue the police or the government and sue for damages, and heavy ones too.
Bail is the next target as the trial won't start for the next 3 years.
The people have already spent 3 years and there is no sight of a trial for them in the next 3 or 4 years, so grant them bail. The NIA is still investigating, they have not given all the electronic devices to the accused, which will itself take time.
It is time to get bail. That may happen soon.
First published in The Citizen.