Context

Father Stan Swamy passed away at a private hospital in Mumbai on July 5. Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA).

How Supreme Court judgment leaves the scope for misuse of UAPA

• The Supreme Court’s April 2019 decision in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute.
• This decision has created a new doctrine.
• According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct.
• Further, bail can now be obtained only if the accused produces material to contradict the prosecution.
• In other words, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases.
• The decision has essentially excluded the admissibility of evidence at the stage of bail.
• By doing so, it has effectively excluded the Evidence Act itself, which arguably makes the decision unconstitutional.
• Due to the Supreme Court judgment, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible.
• The Delhi High Court recently granted bail to three young activists arrested under UAPA in a conspiracy relating to the 2020 riots in Delhi.
• The Supreme Court reportedly expressed surprise and gave the direction that the decision will “not to be treated as precedent by any court” to give similar reliefs.

Misuse of the UAPA

• With such high barriers of proof, it is now impossible for an accused to obtain bail, and is in fact a convenient tool to put a person behind bars indefinitely.
• This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under charges of sedition or criminal conspiracy and under the UAPA.
•  In multiple instances, evidence is untenable, sometimes even arguably planted, and generally weak overall.
• But as a consequence of UAPA being applied, the accused cannot even get bail.

Way forward

• If we want to prevent the misuse, the decision in the Watali case must be urgently reversed or diluted, otherwise, we run the risk of personal liberties being compromised very easily.

Conclusion

The provision of the act leaves the scope for misuse and therefore judiciary and legislature need to take steps to provide safeguards to prevent the misuse.

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