Supreme Court has the constitutional duty to review the misuse of UAPA

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By: Sushil Kutty

Julio Ribeiro and Harsh Mander among others. There will be folks who will mock them with “the usual suspects” tag, but then these former civil servants are persistent with their consistency to stop the Union Government from initiating and implementing overbearing actions; cry foul when the law oversteps and makes an ass of itself.

In the latest, Ribeiro and Mander plus others of their bent have taken the Unlawful Activities (Prevention) Act (UAPA) to the Supreme Court, challenging its draconian provisions and asking the apex court to do itself and the country a favour by taming the law instead of letting it run rampant from Tripura to Kashmir – from Uttar Pradesh to wherever the Centre feels it has an axe to grind and, therefore, reason to use UAPA.

UAPA is an anti-terror law. That will be the answer to the question if asked in the realm. The fact is UAPA is used wherever it shouldn’t be used and against anyone the Modi dispensation doesn’t want to hail with a ‘Jai Shri Ram’. Of late, journalists have been UAPA’s favourite. There are many journalists who will rejoice if UAPA’s wings are clipped. Dissent in the UT of J&K will get a shot in the arm. Standing up to the repeal of Article 370 doesn’t make a dissenter a terrorist.

UAPA is an absolute law and draconian governments are the absolute beneficiaries. Any activity can be deemed unlawful under this Act. And investigating agencies get 180 days to file a charge-sheet instead of the 60 to 90 days in the CrPC. Bail is eligible only after six months. By then, victims of UAPA are bags of creaking bones.

Julio and his clique of retired police and civilian and police officers have told the apex court that the rate of prosecution in UAPA is an absolute low and those charged under this mean legislation are put behind bars for extended periods of time. There have been cases of the UAPA-jailed dying behind bars. Jail never is the best of places to breathe your last.

Of course, the top court isn’t going to do harm to UAPA on that score. Courts never melt under ‘death’. Politicians will cry crocodile tears but no court sheds tears for anyone dead or alive. Nevertheless, Ribeiro and Mander & Co., have told the Supreme Court that the average rate of conviction in UAPA was an insignificant 2.19%.

“Prosecution under the UAPA is either initiated in bad faith or the quality of the evidence is not sufficient, bringing into question the entire process of independent review prior to grant of sanction,” the petitioners said. “Section 43D(5) of the anti-terror law, which deals with restrictions on granting bail, is arbitrarily used to quell dissent.”

The worst is UAPA is not a preventive detention law, but it is being used as one and people are packed off to jail at random with the reasoning that this or that person can and will break the law in the future. Ribeiro and Mander want Section 43D(5) to be struck down without any ceremony to put to a halt “the arbitrary exercise of power by the government.”

The petitioners argued that even though UAPA is not a preventive detention law, it is being used as one. They said Section 43D(5) should be struck down to rein in “the arbitrary exercise of power by the government”.

The petitioners also want “terror” in UAPA defined. “Accusing a person of having committed a terrorist act, by saying the person ‘struck terror’ cannot be sustained, in the absence of a definition of the word terror.” Their contention that “the term ‘with intent to strike terror or likely to strike terror in the people’ is open-ended, ill-defined, and arbitrary.” They questioned the lack of precision in the definition.

The Supreme Court has issued notice to the Centre. The number of UAPA cases against critics of the government has been mounting. UAPA has been used against those who have problems with the Modi Government. Those who cheered the Babar-11 the victory over the Kohli-11 were also charged under UAPA. Clearly, that was the most unlawful use of UAPA. And in Tripura, 102 social media accounts were charged under UAPA for posting ‘Tripura is Burning’. Red sympathizer Stan Swamy was one of those who died in “UAPA custody.” “UAPA was used to “quell dissent,” Ribeiro and Mander& Co., told the Supreme Court. (IPA Service)

 

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