Legal Mechanism of Crushing Dissent - Rebecca John - UAPA
Channel: Opia Films
Date: 2020-08-30

Legal Mechanism of Crushing Dissent - Rebecca John - UAPA 

"UAPA runs counter to establish canons of jurisprudence and constitutionalism. The act is misused, long undertrials, the process is punishment."

Well-known criminal lawyer Rebecca John makes a succinct presentation on the central problems with the UAPA (Unlawful Activities Prevention Act) for a webinar organised by PUCL (Rajasthan) on the two years of the Bhima Koregaon case. Twelve persons, lawyers, academics, journalists and activists have been arrested under this draconian act and denied bail.

Adv Rebecca John addressed two underlying themes which were important questions on the punishing process under the UAPA. 

1. Why is there such a delay in UAPA trials?

2. Why don't undertrials get bail under UAPA?

There are two provisions in the UAPA that are responsible for this situation. 

Section 43 D

This section allows for a change from general law (under the Indian Penal Code). 

In general law, if you are arrested, you will be produced in front of a magistrate in the next 24 hours. 

This was extended to 15 days, then 60 days, then 90 days. The chargesheet must be filed in 90 days. If not filed, accused can apply for statutory bail. Even for murder suspects. 

Under the UAPA, it's very interesting how this changed over a period of time. First, individual remands are supposed to be for 30 days. 
In the 1973 amendment, it became 60 days and in the 1978 amendment, it got extended to 90 days.

The maximum period for remand is 180 days.

 Extending remand period to 180 days is supposed to be exceptional, but has become routinized. 

Under 43 D (2), investigating agencies move applications to extend remand from 90 days to 180 days. 

What agencies are doing is that they are arresting more people even as some people might be at the end of their remand period. If someone else is arrested in the middle of someone’s remand period, a whole 180 days more is added. The trial cannot start as arrests are continuously happening, and the investigating agency is still investigating. Thus, the trial keeps getting derailed. 

When this has been challenged in court, lawyers have been told that the earlier law laid down in the Jitendra Thakur judgement has been over turned. 

For example, in the recent Sharjeel Imam Supreme Court order, it was stated that the accused person will only be informed of the application made by the investigative agency.
 He doesn’t have the right to participate, oppose or get a copy of the prosecutor’s report. 

General Law states that every personal has a right to participate, oppose remand and ask for the chargesheet. If chargesheet is not filed in 90 days, person is released on bail.

3. UAPA and bail 

Under general law, the court has to see whether there are general grounds for believing that the accused has committed an offence. 

Under Section 43 D (5) of the UAPA, the onus has shifted onto the accused- the court will judge whether the accused is able to dispel the accusations of the investigative agency. The onus is on the accused.  
This was established in the Supreme Court judgement of NIA vs Zahur Ahmed Shah Batali, where the onus is placed on accused to show that the prosecution has been unable to show that prima facie there is no case. 

Only when charges are framed can a court say that there is a prima facie case against the accused or not. When charges are framed under UAPA, there is no way of getting bail if there is a prima facie case. 

There is a usage of loose language to fix accountability and crime. Use of words like “frontal organisation” and “formations”, vague terms, vague legislation.

UAPA runs counter to establish canons of jurisprudence and constitutionalism. The act is misused, long undertrials, the process is punishment.

#BhimaKoregaonCase #releasethepoet #VaravaraRao #sudhabhardwaj #shomasen #RonaWilson #AnandTeltumbde #ArunFerreira #GautamNavlakha #VernonGonsalves #GNSaibaba #AkhilGogoi #ReleaseAllPoliticalPrisoners