Section 43D(5) of the UAPA

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Father Stan Swamy, arrested by the NIA in relations with Bhima Koregaon violence, passed away. Click here to know more
Just 2 days before his death, he had moved the Bombay High Court challenging Section 43D(5) of the Unlawful Activities Prevention Act (UAPA).

Who is Father Stan Swamy?

Fr. Stan Lourduswamy S.J., is an Indian Roman Catholic priest and a tribals rights activist for several decades.
The 83-year-old activist (suffers from Parkinson’s disease) was arrested by the National Investigation Agency (NIA) in October 2020.
He is alleged to have involved in the 2018 Bhima Koregaon violence and is charged under the UAPA.

What is Section 43D(5) of UAPA?

The UAPA was enacted in 1967.
It was strengthened by the Union government in 2008 and 2012.
Section 43D(5) makes grant of bail virtually impossible under UAPA.
It leaves little room of judicial reasoning.
The test for denying bail under the UAPA is that the court must be satisfied that a “prima facie” case exists against the accused.
Swamy termed Section 43D(5) as “illusory”.

What have the Courts held in this regard?

In 2019, the SC defined prima facie narrowly to mean that the courts must not analyse evidence or circumstances.
Instead, it should look at the “totality of the case” presented by the state.
In other rulings, however, courts have taken an alternative reading of Section 43D(5).
Courts have emphasised the right to a speedy trial.
They have also raised the bar for the state to book an individual under UAPA.

What were the exceptions?

In Union of India v K A Najeeb in January 2021, the Supreme Court upheld the grant of bail under UAPA.
In this case, the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
The Court, nevertheless, recognised that bail under UAPA was an exception.

The Court said that such an approach would act as a safeguard against Section 43D(5) of UAPA.
Because it could be used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
In February 2021, the Bombay High Court granted bail to Telugu poet Varavara Rao.
He is an accused in the Elgar Parishad case along with Swamy.
The Court, in this case, held that bail under UAPA can be granted by constitutional courts purely on grounds of sickness and advanced age.
Rao is 80 and had tested positive for Covid-19.
Recently, the Delhi High Court granted bail to three student-activists, circumventing the bail provision under UAPA.
It questioned if the alleged offences qualified as “terrorist offences” to be booked under UAPA in the first place.

Source: The Indian Express