Ishika Garg

This article considers the pre-trial detention framework and bail jurisprudence under the Unlawful Activities Prevention Act, 1967 (‘UAPA’), in the wider context of the demise of Father Stan Swamy, from an international humanitarian law perspective, to argue that the current detention regime under the UAPA is in violation of India’s international law commitments. 

Introduction

The recent death of Stan Swamy, an 84-year-old undertrial priest in India, has rung bells of alarm across the world. Amidst a pandemic, the priest was arrested and put in state custody, not on the basis of any clear or proven allegations, but simply on the suspicion of his involvement in a terrorist conspiracy, which is itself in the process of investigation.  While his bail plea hearing was pending for more than a month, the man succumbed to his old-age and infirmity. This is not an isolated incident and there are larger concerns in relation to India’s pre-trial detention framework under the Unlawful Activities Prevention Act (‘UAPA’). This article analyses that framework from the lens of India’s commitments to international laws and norms.

Unpacking the Current Framework of Laws

To better understand the associated problems with our pre-trial custody laws, we must trace the journey of an accused under India’s anti-terror law, the Unlawful Activities Prevention Act, 1967, right from arrest to trial. The presumption of innocence of  the accused until proven guilty has been reaffirmed as the golden thread of criminal law, further informed by Article 11 of the Universal Declaration of Human Rights. In furtherance of this principle, the procedural criminal code in India provides the accused relief in the form of ‘anticipatory bail’, where a person who anticipates arrest can seek bail. However, the UAPA, disallows anticipatory bail for all offences of alleged terrorist activity punishable under it. Thus, the option under Section 438 of the Criminal Procedure Code is rendered moot for an individual accused under the anti-terror law.

The question now is what could get one arrested under this law? It is common news that, in recent times, the standard for ‘terrorist act’ under Section 15 of the Act has included legitimate criticism and expression of ideas in practice. Without the option of anticipatory bail, the arrested accused is left with only one way out – seeking regular bail. However, even this option comes with a huge cost – time. From the recent case of an accused awaiting trial for 12 years, it can be safely assumed that trials into the allegations under the UAPA sometimes take several years. This undue delay in trial is in derogation of India’s international law commitments. For example, the International Covenant on Civil and Political Rights (‘ICCPR’), to which India is a party, clearly states in Article 9(3) that:

“Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.”

Even Article 14(3)(c) of the ICCPR explicitly classifies being tried without undue delay as a ‘minimum guarantee’. In addition to this, the United Nations Humans Rights Committee had commented in the case of Cagas v. Philippine that prolonged pre-trial detention is a direct violation of the principle of presumption of innocence, especially when it has the effect of punishing the accused prior to trial. While the decisions of the United Nations Human Rights Committee are not binding on state parties like India, they must be considered in good faith. Punishing the accused even before the trial has become synonymous with the circumstances of UAPA-accused persons. For instance, in the present case, Stan Swamy was denied even the most basic amenities and the treatment meted out to him surpassed the ‘punishing the accused prior to trial’ standard by great lengths. This should not be misunderstood as an isolated incident and has in fact become a disappointing reality in Indian prisons. To set an expected standard for the conditions to be maintained in prisons, the United Nations General Assembly, to which India is a member, had adopted the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988. Principle 24 of these 1988 principles reads as follows –

“A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge.”

While these principles are not binding, they can serve as guidelines for shaping domestic practice and as a statement of universally accepted basic international legal and humanitarian concepts. In opposing Father Stan’s bail plea, the National Investigation Agency (‘NIA’) stated that there was no conclusive proof of his ailments. This was in spite of the fact that the Stan Swamy had contracted coronavirus, suffered a heart-attack, put on ventilator support and had been suffering from Parkinson’s disease. Such statements by the NIA, despite sufficient proof in the public domain, of which he ultimately died, highlight the deep-rooted problem in India’s criminal trial system.

For a moment, if we analyse this situation from a domestic law point of view, then Stan Swamy’s detention and custodial death are blatant violations of one’s right to life under Article 21 of the Indian Constitution. Under our Constitution, restrictions on such fundamental rights can only be placed if they are ‘reasonable’ and in accordance with the ‘due process of law’. The obvious question to ask then, is whether these requirements were indeed met in the case of Stan Swamy. A recent report has brought to light certain disturbing revelations. The report shows that false evidence was planted in the computers of those accused in the same matter that Father Stan was, i.e., the Bhima Koregaon case. When such is the nature of the evidence on the basis of which the Jesuit was accused and subsequently arrested, then the government’s recent statement claiming that ‘due process of law’ was indeed followed seems questionable. If the arrest did not conform with the prerequisite of ‘due process’, does it amount to an arbitrary and thus, unlawful arrest?

The answer can be found in Article 9(1) of the ICCPR which states that no person shall be subjected to arbitrary arrest or detention. The standard for ‘arbitrary’ was explained by the United Nations Human Rights Committee in the case of A. W. Mukong v. Cameroon. In that case, it was held that ‘arbitrariness’ is not to be simply equated with something ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law. In essence, remand in custody pursuant to lawful arrest must not only be lawful but also reasonable, appropriate, just and adherent to the due process of law. Remand in custody must also be necessary in all the circumstances. Such necessity could arise, for example, to prevent the accused from fleeing or interfering with the evidence. Considering the old age and poor health of Stan Swamy and the tampered evidence, on the very basis of which he was arrested, the remand in custody did not adequately satisfy the standards of ‘reasonable’ and ‘necessary’. His arrest was a result of a lacking anti-terror law and his subsequent death, a product of the flaws associated with our pre-trial detention system.

Understanding the Conundrum: Bail or Jail? 

In cases involving serious charges of terrorism and unlawful activities, if an accused is denied bail as Stan Sway was, then, as per a report of the Working Group on protecting rights while countering terrorism, the accused person must be tried in an as expeditious manner as possible. However, the priest died in prison after almost a year of neglect for his health and undue delay in hearing and disposing off his bail plea.

The Supreme Court of India has often held that bail is the norm, and jail the exception. Even the United Nations Human Rights Committee has held in M. and B. Hill v. Spain, a case involving Article 9(3) of the ICCPR, that pre-trial detention should only be the exception and bail should be granted. Essentially, if a person is unlikely to flee or tamper with evidence, they should be released on bail. The merits of the case are not required to be examined at such a premature stage. In complete contravention of well-established international law principles, the UAPA makes this unreasonable demand. As per Section 43-D(5) of the UAPA, the court can reject the accused’s bail plea if, after examining the material provided by the police, it is of the ‘opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true’. This standard, followed even when the police investigation is in the process, is problematic as the police might only present that evidence before the Court which is favourable in ensuring that the bail plea is denied.

A temporary breath of air was provided by the High Court of Delhi in Zahoor Ahmed Shah Watali v. National Investigation Agency. In that case, it was held that the courts cannot act as mere post-offices of the agency and must scrutinise the material presented to them with extra care in order to determine if a prima facie case exists. However, this holding was subsequently overruled by the country’s top court. In fact, the apex court further lowered the standard for examining the material by holding that bail can be denied by relying upon prosecution documents even though these would be inadmissible evidence during the actual trial. One cannot turn a Nelson’s eye to such obvious risks to the widely accepted pro-bail principle of international law.

Conclusion

The cold truth is that the treatment meted out to Stan Swamy has become the callous norm when it comes to matters of pre-trial custody and bail. The premise of the law itself is so perverted that the ‘due process of law’ aimed to safeguard one’s personal liberty was instead twisted to annihilate it. The cases of several of those accused under UAPA represent a blatant violation of international human rights law. A paradoxical situation is created where on one hand the crime is considered so serious that the arrested is not granted bail, and on the other hand so trivial that the trial is repeatedly delayed.

Ishika Garg is a current undergraduate student at the National Academy of Legal Studies and Research (NALSAR), Hyderabad.