“Critique on UAPA and the lagging Indian Judiciary – through an analysis of Stan Swamy’s case”

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The Indian constitution, which governs the nation is an excellently crafted draft of rules and regulations which were established by the constituent assembly keeping in mind the highest ideals, administering the Indian society. In the course of time, despite such grandeur of the constitution, it fell short of certain provisions and the judiciary system was fraught with a huge problem of case pendency. Thereby, several amendments as well as new laws were made to accommodate the changes, as well as to fill the loopholes in the constitution. One such example of a contentious law is, UAPA (Unlawful Activities (Prevention) Amendment Act), which was passed by the Congress government, led by Indira Gandhi in the year 1967. In the course of time, several amendments were made to this law and soon it replaced acts like TADA (Terrorist and Disruptive Activities (Prevention) Act) and POTA (Prevention of Terrorism Act). It eventually, became the anti-terror law which sought to protect the territorial integrity and sovereignty of India. Unfortunately, in the recent years, it has transformed into becoming a tool, to suppress the dissenting voices of people, who do not approve of the government’s policies. The problem isn’t just limited to misuse of laws, but is also loaded with the lagging judiciary in India, which makes the whole process even more unfair and cumbersome for the accused.  The most recent example of such a case, is the death of Father Stan Swamy, a Jesuit priest aged 85, who died in custody while being charged under the UAPA act. Thus, this case is a warning signal which points at the misuse of the acts by the political powers and also at the limping judicial system- one of the fundamental pillars of democracy.

Stan swamy, the oldest person to be accused under the UAPA act, was a tribal rights activist who worked incessantly to promote the rights of the adivasis and make them aware of it.  For this purpose, he adopted various measures, like going to the rural areas to educate the people about the rights and make them realize the importance of consent in matters of their land, forests etc. which were easily taken away from them. He also made the people realize how the government policies which were biased toward the companies, would affect their well-being and deter the progress of their communities. In this way, he mobilised the masses to dissent against the policies of the government, which were in violation of the Fifth Schedule of the Constitution, which stipulated setting up of a Tribes Advisory Council with members solely of the adivasi community for their protection, well-being and development in the state.[1]. “Additionally, he also protested against the indiscriminate” arrest of thousands of young adivasis and moolvasis who were labelled as “Naxals” and hence fought for the rights of the under-trial prisoners in Jharkhand.” [2]. In the year 2008, in one such protests led by him, the government sent forces, in order to clear the Adivasi forested hills in the name of battling the threat of the Maoist insurgents and since then Stan Swamy was seen as a part of Maoist organization. Later he became the oldest person to be accused of terrorism, when in October 2020, NIA (National Investigation Agency) booked Stan Swamy and 15 others under UAPA, alleging his participation in the suspected links to a Maoist violence during the commemoration ceremony of Bhima Koregaon battle on January 1, 2018 [3]. It was alleged by the NIA, that the Persecuted Prisoners Solidarity Committee (PPSC) co-convened by Swamy and Sudha Bharadwaj was a front for Maoists. [4]

            UAPA act which was introduced in the year 1967, replaced many anti-terror laws in the course of time sought to put reasonable restrictions on freedom of speech, right to assemble peacefully, and right to form associations. This aspect of the act made its utility, not just limited to keeping a check on terrorist activities, but also covered the wider ambit of expression of opinion by the people of the nation including artists, teachers, scholars etc. This act remains contentious due to the several factors. Firstly, the legislation gives absolute authority to the central government and it remains highly subjective upon the whims and fancies of the central political power and thus it remains prone to be misused by such authorities. Secondly, this act in order to make its stands stringent against terrorism and prohibit such activities, totally reverses the general understanding of the Indian judicial system that is “innocent until proven guilty” [5] and takes any person accused under this UAPA to be a terrorist until acquitted of the charges. Due to this, this law has huge societal repercussions on the accused, as their social image gets damaged and he has to suffer imprisonment and thereby tend to lose valuable years of his life. More so, UAPA makes it very difficult to get bail, as it extends the  pre-chargesheet custody period from 90 days to 180 days. [6] This law was codified in order to make the terrorism cases come to a halt and thereby promote zero tolerance in such cases, but rather it went on to become an act with a conviction rate of hardly 2.2 per cent as per the Union home ministry’s data given to Parliament in March this year, of cases registered under the UAPA between 2016 and 2019[7]. This clearly highlights the number of false allegations that people are charged against under this law and thereby points at the misuse of this act. “As per NCRB data, 5,922 people were arrested under the UAPA between 2016 and 2019. Out of this very large number, there have only been 132 convictions in the four-year period” [8]. It is very unfortunate that a law that was meant to put a ban on such terrorist activities in the state is, being misused for the personal benefits of the corrupt political leaders and is used to silence the dissenting opinions of educated scholars and other luminaries in a democratic country like India. Many a times this act has been used in the country to fulfil the vengeful thirst of the powerful politicians and has been used as a tool to “pick up”[9] people that the government finds threatening to its authority and imprison people for long periods until they are finally silenced by the system. The case of Stan Swamy was a similar one. He mainly worked towards liberating the young adivasis, who were tagged as naxals and Maoists by the state and had to suffer prolonged imprisonment due to the lackadaisical approach of the courts. This is an example of notorious use of the UAPA act by the state and Stan Swamy fought against this injustice and on behalf of the prisoners and hence, filed a case in the Jharkhand High Court. He along with Sudha Bharadwaj had formed Persecuted Prisoners Solidarity Committee for this purpose. It was quite natural that his actions were getting in way with the corporate bodies, who in collaboration with the state government didn’t want the adivasis to voice their opinions, as that would make the land grabbing more difficult and deter them from making profits. As a result, Stan Swamy’s active participation in these issues invited the wrath of the government and as a result, he was booked under the very same act he was questioning. He was one of the activists, accused for the violent overturn of events in the Bhima Koregoan case and was suspected of being linked to the Maoists organization of India which was banned in India. In the course of investigation by NIA, certain data was found on his computer which led to this suspicion of the state against him. Although he requested twice for a bail- that is interim and regular bail in the NIA special court, his application was rejected as concerned judge rejecting bail had said: “collective interest of the community would outweigh the right of personal liberty of the applicant and as such old age or alleged sickness would not go in his favour”[10]. Thus, this makes the application of bail very difficult under UAPA cases, as anyone accused cannot be given bail until the judge is convinced that the case isn’t prima facie true. Hence Stan Swamy had approached the Bombay HC challenging Section 43D(5) of the Unlawful Activities (Prevention) Act [UAPA] which bars grant of bail if the accusation is prima facie true[11]. as he found the provisions of the act very much against the articles of Articles 14 (right to equality) and Article 21(right to life and personal liberty) of the Constitution[12]. The provisions under the UAPA being selective in nature, makes the judge decide whether the case is prima facie true or false and accordingly he can accept or reject the bail. This makes the whole process very subjective and mostly convenient to the privileged sections of the society who wield greater influence in the society[13].

In such dire conditions when the judiciary should come to the rescue of the citizens of the democratic nation, it almost fails to do its job. The ignorant and lackadaisical approach of the Indian judicial system has plagued it and thus, fails to perform its duties that is to protect the democracy of the Indian state. One of the major reasons behind this is the lagging system with its huge case pendency. When the only mechanism responsible for maintaining people’s faith in justice and equity fails to comply with it, people lose faith in a fair and just state and indulge in committing wrongs, being assured that they will be left unharmed. Similar wrongs have been inflicted on the people of India by the deliberate misuse of UAPA act, by the political powers, as they don’t fear judiciary. As a matter-of-fact the system “acts as an “executive judiciary”, conniving in the denial of fundamental rights of citizens and an inhumane jail system which violates basic human rights of prisoners” [14] The system has been variously courted, corrupted, and coerced into compliance as we observe that so many people are imprisoned are under-trial prisoners who aren’t aware of the offences they have been charged up with and still continue to suffer years in prison without resort to any legal aid. Approximately 70 percent of India’s jail population is currently made up of under- trial prisoners and roughly 1.6 crore criminal cases are pending in India. [15] Moreover, the provision of bail for people charged under the UAPA act becomes close to impossible as such pleas are heard when the accused is under the judicial custody. Even then many other issues might arise like when the judges don’t adjudicate or give dates, or public prosecutors unnecessarily delay their replies, an accused’s right to bail is automatically precluded”[16] Therefore, it becomes evident that the courts rather than proactively participate in liberating the people, is struck with red tapism and promotes the misapplication of such draconian laws. This kind of a system afflicts the people from underprivileged section of society most significantly, and as they lack the means and the knowledge to free themselves of such charges are the ones to suffer the wrath of authorities. Father Stan Swamy, especially worked in this area to liberate the adivasis who have been unfairly charged of spreading terror, but ironically became the victim of the same system and passed away in July 2021.

            Father Stan Swamy, an octogenarian who suffering from Parkinson’s and also had caught Covid during his imprisonment suffered from ill health and his conditions worsened at the terrible conditions of the jail. In last two years of his own life, he talked of his pitiful condition in the Taloja jail, where in he mentioned how the people in jail helped him walk, wash and eat as these functions became increasingly impossible for him to perform.[17] For this reason, he constantly urged for a speedy trial but without any luck. The misery that he underwent in the hands of such lethargic judiciary was that his even a request as simple as a demand for a sipper and a straw owing to the fact that he was unable to hold things due to Parkinson’s disease took the NIA court a month to approve his request, after it sought an application period of 20 days. Such events show the utter ignorance and the apathy of the courts who wield such powers to instil the faith of people in justice but fail to use it for its very purpose. With an intensely slow approach and problems of unaccountability, the courts make this process immensely tiring for the people who are jailed. In spite of several rejections Father Stan Swamy with all his faith in the judiciary, approached the court to make himself heard which shows, how much the innocent people rely on courts and place their belief in the judiciary. But unfortunately, the very same institution failed one such believers of the justice system, and thereby gave a similar signal to people all across the nation who hold the judicial system in their highest esteem. As he succumbed to this tyranny, the faith of millions in judiciary were also shaken and warns of an impending doom of failing mechanisms of the country far and wide. It invited a sharp reaction from all the parts of the world and depicted that the judicial system rather than improvising from how it was in the colonial times, hasn’t progressed much and continue to be used as a weapon to catalyse the actions of the regime.

 The case of Stan Swamy is not just a case of one man who was denied the due course of justice efficiently, but it stands representative of the two very vital problems that has shaken the pillars of democracy, firstly the failing judiciary and secondly, the ever-increasing power of politicians. This incident goes on to highlight the need for re-establishing and re-affirming the ideals, which the makers of the constitution wanted to see in their “new India”. But the very fact that despite self- governance, the country has been pushed to the edge of some sort of authoritarianism is unfortunate. It becomes all the more important to unite ourselves against such misinterpretation and misuse of such excellent constitution, and strive towards imbibing the true ideals of the constitution. We must ensure that acts like UAPA doesn’t become a weapon to be used against the innocent and make sure that the judiciary takes active role in establishing a just and fair system for all. Lastly, as emphasized by Father Stan Swamy “one must not be a silent spectator” and become responsible citizens who continue to have faith in the constitution and don’t just remain dormant to the activities in the state but actively participate, to bring about a reform. Additionally, we also need to stop ourselves from practicing the same ignorance that has inflicted and shallowed the whole system and always remember that only with a continued effort, can we bring about an end to this problem for once and for all.

[1]  Explained Desk, “Explained: Who was Stan Swamy, arrested in the Elgar Parishad case, who died on July 5?” Indian Express, July 13, 2021.

[2] Dhamini Ratnam, KAY Abbas and Divya Chandrababu, “The life and death of Father Stan Swamy” Hindustan Times, July 12, 2021.

[3] Prabhash K Dutta, “Decoded | Spotlight on terror law UAPA after Stan Swamy’s death” India Today, July 6, 2021.

[4] “2018 Bhima Koregaon violence”

available at https://en.m.wikipedia.org/wiki/2018_Bhima_Koregaon_violence (Last Modified August 5, 2021).

[5] “Unlawful Activities (Prevention) Amendment Act (UAPA)” available at https://byjus.com/free-ias-prep/uapa-upsc-notes/ (Last Modified August 15, 2021).

[6] Prabhash K Dutta, “Decoded | Spotlight on terror law UAPA after Stan Swamy’s death” India Today, July 6, 2021.

[7] Prabhash K Dutta, “Decoded | Spotlight on terror law UAPA after Stan Swamy’s death” India Today, July 6, 2021.

[8] “Fr Stan Swamy challenges constitutional validity of UAPA’s bar on grant of bail before Bombay HC” available at https://www.theleaflet.in/fr-stan-swamy-challenges-constitutional-validity-uapas-bar-on-grant-of-bail-before-bombay-hc/ (Last Modified July 2, 2021).

[9] “Death of Stan Swamy and provisions of the contentious UAPA” available at https://www.inventiva.co.in/stories/ingle/death-of-stan-swamy-and-provisions-of-the-contentious-uapa/ (Last Modified July 7, 2021).

[10]Apoorva Mandhani, “Community interest outweighs right of personal liberty’: Why court denied bail to Stan Swamy” ThePrint, Mar 23, 2021.

[11] “Fr Stan Swamy challenges constitutional validity of UAPA’s bar on grant of bail before Bombay HC”

available at https://www.theleaflet.in/fr-stan-swamy-challenges-constitutional-validity-uapas-bar-on-grant-of-bail-before-bombay-hc/ (Last Modified July 2, 2021).

[12] “Fr Stan Swamy challenges constitutional validity of UAPA’s bar on grant of bail before Bombay HC”

available at https://www.theleaflet.in/fr-stan-swamy-challenges-constitutional-validity-uapas-bar-on-grant-of-bail-before-bombay-hc/ (Last Modified July 2, 2021).

[13] Isha Singh, “Stan Swamy’s Death Shows India’s Complex Legal Structure Fails To Protect Individual Liberty” TheWire, July 6, 2021.

[14]“The Persecution of Stan Swamy” available at https://peoplesdemocracy.in/2021/0711_pd/persecution-stan-swamy (Last Modified July 11, 2021).

[15] “Fact check: No, the death of Stan Swamy is not “judicial murder” available at https://dynastycrooks.wordpress.com/2021/07/07/fact-check-no-the-death-of-stan-swamy-is-not-judicial-murder/ (Last Modified  July 7, 2021).

[16] Isha Singh, “Stan Swamy’s Death Shows India’s Complex Legal Structure Fails To Protect Individual Liberty” TheWire, July 6, 2021.

[17] Dhamini Ratnam, KAY Abbas and Divya Chandrababu, “The life and death of Father Stan Swamy” Hindustan Times, July 12, 2021

Author: Somya Jha, Jindal Global Law School

Editor: Kanishka VaishSenior Editor, LexLife India.

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