'Insurmountable hurdle': Stan Swamy challenges UAPA provision on bail

Tribal rights activist Stan Swamy, an accused in the Elgar Parishad-Maoists links case, has challenged in the Bombay high court a provision of the stringent Unlawful Activities Prevention Act dealing with grant of bail, contending it has created an "insurmountable hurdle" for those seeking relief.

Swamy said section 43D(5) of the UAPA was violative of the accused person's fundamental right to life and liberty as guaranteed by the Constitution even as the high court on Saturday extended the stay of the 84-year-old Jesuit priest at a private hospital in Mumbai till July 6.

Senior counsel Mihir Desai told a bench of Justices SS Shinde and NJ Jamadar that Swamy was still undergoing treatment at the intensive care unit of the Holy Family Hospital, where he was shifted from the Taloja prison in Navi Mumbai following the HC's order on May 28 this year.

Swamy filed his fresh plea in the high court challenging section 43D(5) of the UAPA on Friday.

In his plea filed through advocate Desai, Swamy said the above section created an "insurmountable hurdle" for the accused to get bail and, thus, was violative of the accused person's fundamental right to life and liberty as guaranteed by the Constitution.

The common practice under the criminal justice system is to presume an accused person's innocence unless charges against him or her are proven by the prosecution. Section 43D (5) of the UAPA, however, mandates that if a court has reasonable grounds to believe that the accusation against someone charges under the Act is prima facie true, then the accused shall not be released on bail.

Swamy's plea stated that presumption of innocence is a fundamental tenet of criminal jurisprudence and when a harsh condition, such as that mentioned above is imposed on grant of bail, even before the trial is conducted, the same "inverts on its head, the principle of presumption of innocence."

Desai said the plea also stated that the provision under the UAPA to brand certain organisations as a front for banned or terrorist organisations was bad in law.

The UAPA provides for the declaration of an association as unlawful and for the listing of organisations in the first schedule of the Act as "terrorist organisations".

Prosecuting agencies often charge accused persons under the Act of being members of organisations working as a front for banned ones.

In the Elgar-Parishad case, Swamy and his co-accused have been charged by the National Investigating Agency (NIA) as being members of frontal organisations working on behalf of the banned CPI (Maoists).

Last month, the NIA had filed an affidavit before the HC opposing Swamy's bail plea. It had said that there did not exist "conclusive proof" of his medical ailments. It alleged that Swamy was a Maoist, who had hatched a conspiracy to create unrest in the country.

The Elgar Parishad case is related to inflammatory speeches made at a conclave held in Pune on December 31, 2017, which, the police claimed, triggered violence the next day near the Koregaon-Bhima war memorial located on the outskirts of the western Maharashtra city.

The police had claimed the conclave was organised by people with alleged Maoist links.

Swamy, who claims to be suffering from several ailments, including the Parkinson's disease, had moved the high court earlier this year through advocate Desai, seeking medical treatment and interim bail on health grounds.

He had tested positive for coronavirus at a private hospital last month and was subsequently shifted to the ICU.

His plea for medical bail and bail on merits was listed for hearing in the high court on Friday but could not be taken up due to paucity of time.

The bench adjourned the hearing to Tuesday and extended his hospital stay till then.

"Till the next hearing, our interim order on his (Swamy's) treatment at the private hospital will continue," it said.