The custodial death of Jesuit and human rights activist Stan Swamy highlights the draconian nature of the Unlawful Activities Prevention Act (UAPA) and the injudicious manner in which it is implemented. Though death is the only event of certainty in human life, he could, perhaps, have lived longer if only the state and all its apparatuses were a little more lenient. He was in jail for nearly nine months but was not found eligible for bail.
Under the UAPA, which was first drafted and introduced in 1967 and was amended from time to time to make it India’s primary counter-terrorism law, the pre-chargesheet custody period is 180 days. In other words, an arrested person is not entitled to bail during that period. What’s worse, the court is compelled to depend on the police version to decide whether the arrested person deserves bail.
Swamy had been claiming that the National Investigation Agency had tampered with the contents in his laptop and interpolated incriminating evidence against him. Under the law, the court had no other version to rely on except what the police provided. So, if he was projected as a dreaded terrorist, there was no way he could counter it with logic or evidence.
Significantly, after his arrest and incarceration, the NIA never sought his custody even for a day, to interrogate him. In its abundant wisdom, the NIA would have concluded that it had nothing to gain by questioning him. Yet, it consistently opposed his bail application, despite the fact that he was 84, suffering from Parkinson’s disease and was virtually dying. He had always been saying that he had never visited the village where violence was instigated by the fifth columnists on the 200th anniversary of the battle of Bhima Koregaon in 2018.
Every party which has ruled the country since 1967 is responsible in some way or the other for the UAPA. When the governments of the day found that terrorist laws like the TADA and the POTA were indefensible, they sought refuge in the UAPA by amending it to make it more stringent. If it was originally seen as an anti-terror law, the Narendra Modi government converted it into a strong weapon against individuals who stood up against the government. There were 15 other persons, holding positions of influence in society, who were arrested along with Swamy. Curiously, while they are rotting in jail, a woman accused of actual involvement in terrorism was not only granted bail but was also permitted to contest and become a honourable member of Parliament.
Experience has shown that the stringency of a law is a sure recipe for misuse. In some infamous cases, laws like the TADA were used against children and even persons of unsound mind. In the instant case, the Indian state would not have lost anything if it had released the octogenarian on bail, for he could not have escaped the country like businessmen Vijay Mallya and Nirav Modi. Yet, why was he kept in custody? Because the police knew that they would never be able to convict him for want of evidence and the only way they could “punish” him was by keeping him in jail for as long as possible. The UAPA gave the NIA the necessary loopholes to harass and eventually finish Swamy.
In fact, laws like the UAPA make the police lazy. If the police had to convince the court that Swamy’s custody was necessary to investigate the case, they would have to provide evidence, which the accused could challenge. It would have allowed the judge to use his discretion and superior knowledge of the law to make a decision. In the case of the UAPA, police only have to remind the judge of the provision that allows them to keep the accused in jail for as long as 180 days without bail.
Despite the police getting so much time to present a fool-proof case before the court, the conviction rate in UAPA cases is abysmally low. According to Home Ministry data given to Parliament, only “2.2 per cent cases registered under the UAPA between 2016 and 2019 resulted in conviction”. The nation has seen how the state has been using the sedition law, drafted by the British to deal with Wahhabis, to jail students, teachers, journalists and social activists who question those in power. The sooner the UAPA is divested of its draconian provisions, the better it will be for the democratic functioning of the country.