Bhima Koregaon Case: Trying Without a Trial Is the Intent of Draconian UAPA Law

'Trial by process' is the political and organisational logic of the UAPA.

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An 84-year-old Jesuit Father, Stan Swamy, charged for inciting violence in Bhima Koregaon (BK), died inside the panoptic walls of the Taloja jail on July 5. Despite his age, despite his Parkinson’s-ravaged body, despite his tremors, despite his Covid infection, despite all his frailties, he had been denied bail repeatedly. Rather than his ailing, failing body becoming a ground for bail and appropriate medical care, his body became yet another ground on which the National Investigation Agency (NIA) waged its vicious war.

Now with one gone, there are 15 other bodies, 15 other grounds, 15 other citizens on whose imprisoned bodies this diabolical war shall continue, in which law will be upheld procedurally, but justice denied. Stan Swamy’s dead body is a symbol of that injustice. It is also a reminder to the judiciary that there are 15 others, some with broken bodies, some with broken spirits (perhaps), incarcerated and being tried without a trial just like him.

Since June 2018, 16 citizens of this country have been arrested and charged under several sections of the draconian Unlawful Activities Prevention Act (UAPA), an anti-terror law that suspends the fundamental, constitutional rights of those arrested. Common to the “BK-sixteen” are three things.

Also read: Allowing the State to Designate Someone as a ‘Terrorist’ Without Trial is Dangerous

One, they represent the interests and claims of some of the most dispossessed, marginalised and voiceless citizens of our country.

Two, they are all suspected of being part of a Maoist network that instigated violence during a celebratory gathering in January 2018 that had been organised by the Elgar Parishad to mark the 200 years of the Bhima Koregaon battle.

And three, they have all been charged by the Maharashtra police under the monstrous UAPA.

UAPA and the denial of bail

Enacted in 1967, UAPA initially gave powers to the Union government to impose all-India bans on unlawful associations. A few amendments since then have further expanded its jurisdiction, the most lethal being the 2019 amendment. It now includes within its scope the categorisation of individuals as terrorists, on whom would lie the burden of proving their innocence. This not just violates the principle of ‘innocent until proven guilty’, but it also violates the International Covenant on Civil and Political Rights, which recognises the mentioned principle as a universal human right.

The case against civil liberties and constitutional remedies got a draconian push by the Supreme Court’s Watali judgement (2019), which made bail a virtual impossibility for those charged under the UAPA.  The Court ruled that bail under section 43 D(5) of the UAPA can be denied by relying upon prosecution documents even though they would be inadmissible in evidence during the trial.

As one of the foremost criminal lawyers of the country, Rebecca John, puts it: “the Watali judgment effectively sanctions pre-trial detentions and incentivizes prosecution under the statue.”

It is important to note that this judgment is a reversal of the Supreme Court’s own ruling in the Balchand case (1978) that made “bail the rule and jail the exception”, balancing the values of individual liberty and exigencies of security. The court had then cautioned that if these principles aren’t followed, it might amount to throwing a significant challenge to the rights of the accused. The UAPA as it stands today does exactly that – it incarcerates individuals “notified” as terrorists by the state without trial for extended periods of time with a stronger-than-ever presumption against bail.

Also read: Navlakha Bail Denial Flawed But SC Backing House Arrest as Alternative to Jail a Blow for Rights

In one of the earliest pleas in the Bhima Koregaon arrests, five of the accused had petitioned the Supreme Court in August 2018. The petitioners’ plea was only for a probe by a special investigation team (SIT), given the glaring lapses and bizarre conclusions in the rather tendentious findings of the Mumbai police.

In one instance, the inflammatory speech referred to in the FIR was actually a Marathi translation of verses from the German play The Good Persons of Szechwan by Betrolt Brecht.

In another, despite the Regional Forensic Science Laboratory (Pune) raising many red flags on the veracity of “conspiracy letters”, they were selectively flashed by ADG of Maharashtra Police at a press briefing to suggest that the arrested activists were involved in a plot to assassinate the prime minister. All this was evidence placed before the court. The Supreme Court, however in its wisdom, dismissed the plea for SIT.

As if on cue, on the same day, the Pune Sessions Court refused bail to Sudha Bharadwaj, Vernon Gonsalves and Arun Ferreira. Close on heels, the Maharashtra government moved the Supreme Court challenging the Bombay high court order that denied Maha police time – extension for chargesheet to be filed.

From then on accessing their constitutional rights for legal remedies for UAPA accused has become a Kafkaesque nightmare – or should we say a “Koregaonesque” nightmare? The executive intent of deploying an anti-terror juggernaut against dissenters, along with the Watali verdict, has ensured that for those incarcerated in the Bhima Koregaon, bail has become a virtual impossibility. Incarcerations continue indefinitely without the “prima facie” evidence getting to stand the scrutiny of a trial.

Tenuous charges and inhumane judiciary 

But the truth is the Bhima Koregaon-16 are already being tried and judged. 84-year-old Father Stan Swamy, who suffered from Parkinson disease, was denied a sipper for his tremor-afflicted hands. The highly myopic, civil rights activist, Gautam Navlakha was refused replacement glasses after his existing pair broke. The ailing 80-year old poet Varavara Rao was deprived of half-decent medical care when he had contracted a Covid-19 infection. The diabetic, with a heart condition, law professor Sudha Bharadwaj was denied bail on medical grounds even after a fellow woman prisoner at the Byculla jail, Mumbai, tested positive for Covid-19.

The prisoners’ rights activist and Ph.D. applicant Rona Wilson pleaded for the formation of an SIT consisting of experts in digital forensic analysis to confirm the Arsenal Consultancy (USA) report that evidence was planted on his computer. Associate Professor, Delhi University, Hany Babu has been denied bail despite an acute eye infection and rapid loss of vision. Along with them, Shoma Sen (Professor, Pune University); Anand Teltumbe (former IIT professor and Dalit studies scholar); Surendra Gadling (tribal rights lawyer); Sudhir Dhavle (founder, Dalit rights organisation); Mahesh Raut (land rights activist); Arun Ferreira (lawyer and human rights activist); Vernon Gonsalves (academic and trade unionist); Kabir Kala Manch members, Sagar Gorkhe, Ramesh Murlidhar, Jyti Raghoba Jagtap all have been subjected to incarceration under vague and nebulous charges with no trial or bail in sight.

Also read: There Is No Case. Release the Bhima Koregaon 16 and Compensate Them

So vague have been the charges that Justice Chandrachud, in his dissenting opinion of 2018, stated that the real reason behind the arrests is “an attempt by the state to muzzle dissent…each of them is being prosecuted for being a defender of persons subjected to human rights violations”.

The purpose of this arbitrary “trial-without-a-trial” is no longer justice, where the guilty are punished and the innocent are set free. It is to convert the law into a tool of sustained suppression of citizens who are thinking, questioning and a little more dissenting that the state is willing to tolerate. “Trial by process” is the political and organisational logic of the UAPA. The now routine deployment of UAPA, together with a deadly cocktail of other exceptional laws, is meant to signal the reach of the Indian state.

It is meant to “teach” those who talk back just how fragile the edifice of their constitutional rights is, and just how socially disposable their enfranchised lives are. The normalisation of this exceptional law may be “legal” but it is not lawful. Beyond the statute books and judicial pronouncements is the question of the substance of law – and that still begs an answer. The right way to mourn Stan Swamy’s death is to keep asking that question.

Rajshree Chandra is a political scientist. She dedicates this piece to Stan Swamy and all that he stood for.