- GS-2: Fundamental Rights & Democracy
- GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
A strong Indian state must be humane too
Context: Father Stan Swamy passed away in a Mumbai hospital recently while his case for bail was going on in the Bombay High Court.
- He 84-year-old Jesuit priest and a tribal rights activist based in Jharkhand.
- He was arrested by the National Investigation Agency (NIA) under the Unlawful Activities (Prevention) Act (UAPA), in the Bhima Koregaon case.
- NIA had alleged that he was a CPI (Maoist) cadre which is a banned organisation and carrying on activities to overthrow the democracy of the nation”
- International Ire: The Indian system’s treatment of Fr. Swamy has attracted substantial and pointed criticism from significant international quarters like UNHRC, US & EU.
- Government’s refusal to engage with liberal opinion: Indian diplomatic engagement with international liberal opinion on Stan Swamy’s death was wooden and inflexible assertions of general principles only. There was expectation of sensitivity in the response which was belied.
- Red-Tapism in Indian Prisons: There are criticism that it took almost a month for the jail authorities to provide a straw, sipper and winter clothes to Fr. Swamy, as Parkinson’s disease made it difficult for him to hold cups or glasses.
- The stringent nature of UAPA renders it difficult for one held under it to obtain bail.
- Under Section 43D(5) of UAPA Act, bail cannot be granted to a suspect if the court is of the opinion that there are reasonable grounds to believe that the charges are prima facie true.
- A Supreme Court judgment on this has clarified that this meant that the court considering bail should not examine the evidence too deeply, but must go by the prosecution version based on broad probabilities.
- This means that the onus is on the accused to show that the case is false but without inviting the court to evaluate the available evidence.
- UAPA presumes a person is guilty until proven innocent, contrary to the spirit of Constitution.
- This is why human rights defenders feel that the provision is draconian, virtually rendering it impossible for anyone to obtain bail until the completion of the trial.
- A strong and effective state can and must also be a humane state, which it hardly was in the case of Fr. Swamy.
- Government needs to be reminded that the principle to achieve development in India should not through an authoritarian polity but a democratic and liberal one.
- Superior judiciary needs to redress the situation of misuse of UAPA through an audit of such cases. Fr. Stan Swamy’s case should provide an impetus to put such an audit machinery in place.
Yes, special laws were, and continue to be required to meet the challenges that arise from violence that cannot be confronted under the ordinary criminal statute. Their application, however, requires constant review
Connecting the dots: