The last one year, I spent a lot of time sitting in the corridors of the Supreme Court, staring at busy lawyers ply by in their black gowns, from one courtroom to other. The apex court stands tall casting its long forlorn shadow on the heart of the national capital. I left at the end of each day, with another date to return. The case was my friend Umar Khalid’s bail plea.
For four years now we have meandered in the labyrinth of legal corridors, lower court, high court and the Supreme Court, chasing the goose of liberty, for our friends implicated in the notorious Delhi Riots case. It’s been difficult, because the oft-repeated expression of judicial magnanimity, ‘jail is the exception, bail is the rule’, is institutionally reversed when it comes to the Unlawful Activities Prevention Act (UAPA).
The UAPA, right from its inception, has been a stringently undemocratic law, designed to scuttle dissent, and silence citizens, especially the ones on the margins. But in 2019 it became devastatingly draconian. With the reforms, brought in by the Modi government, the UAPA can now be evoked against individuals who are not necessarily linked to any terror network. So, the prosecution is not obligated to find any terror conspiracy, waged by a larger network or group previously declared as “terrorists”. Any citizen now can be framed as a “terrorist”. The state has officially turned the needle of suspicion as a potential threat to all of us.
And we have seen the consequences. Long incarcerations with absurd charges, the numbers are ticking high. The UAPA gives leeway on the legal front to take double the time to file a chargesheet and proceed with the trial. Section 43D (5) of the UAPA makes bail virtually impossible. The late Father Stan Swamy, the octogenarian Jesuit priest who was arrested under UAPA in 2020, had challenged this section in Bombay High Court. Within two days of filing the challenge, his severely ailing, frail body succumbed to the harsh conditions of jail. The courts had not granted him bail earlier, not even on medical grounds, because he was detained under UAPA. Two students from Kashmir were framed under UAPA for cheering for Pakistan in a cricket match in 2023.
The judiciary has mixed responses to UAPA cases. State vs Zahoor Ahmed Shah Watali (2019) ruled that courts must accept the state’s case without examining its merits while granting bail, thereby making it virtually impossible. In State vs K. Najeeb and State vs Vernon Gonsalves, however, the courts took a more humane stance and took cognisance of the delay in the procedures being against basic human liberty. In the case of the Delhi Riots in 2021, Delhi High Court passed a historic order granting bail to three of the accused and criticised the prosecution’s hollow attempts to frame activists. A year later, the same court took a diametrically opposite position upholding the same prosecution’s theory they had previously questioned.
UAPA has no sunset clause. It’s a perpetual weapon in the hands of the state, to target citizens at will. A country boasting to be a democracy cannot have a vague and draconian law like UAPA, which is only used to frame activists, political opponents and critiques of the state. ‘Repeal POTA’ was a major public demand in the general election of 2004. ‘Repeal UAPA’ must be a demand this time lest we let the spirit of the Constitution be shortchanged for the avarice of an authoritarian regime.
The writer is a researcher and activist based in Delhi and Calcutta, and a friend of Umar Khalid, undertrial in Delhi under the UAPA. Views expressed are personal
