‘Constitutionality of UAPA must be challenged’

With five arrests under anti-terrorism law in the Bhima-Koregaon case, former judges question its implementation

June 14, 2018 12:19 am | Updated 12:19 am IST - Mumbai

In custody: Dr. Shoma Sen is one of those charged under UAPA.

In custody: Dr. Shoma Sen is one of those charged under UAPA.

A day before the local police raided her home in Nagpur and arrested her under the stringent Unlawful Activities (Prevention) Act (UAPA), Dr. Shoma Sen was busy planning for her birthday in August — her 60th. Ms. Sen, who heads the English department at Nagpur University, is among those accused of inciting violence at Bhima-Koregaon in Pune district on January 1, which left one person dead.

Ms. Sen, currently in police custody, has been charged with promoting enmity between different groups under the Indian Penal Code (IPC), and for raising funds for a terrorist act under the UAPA. While she and four others — an author and Dalit rights activist, a lawyer and two social activists — have been charged under UAPA, prime accused Milind Ekbote and Sambhaji Bhide haven’t been. Mr. Ekbote, executive president of the Samasta Hindu Aghadi, and Mr. Bhide, who heads the Shiv Pratishthan Hindustan, have been charged under the IPC, Arms Act and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

A teacher for 38 years, Ms. Sen grew up in Mumbai and has been living in Nagpur for 35 years. Her daughter says with retirement approaching, she was looking for fulfilling activity and planned on writing and travelling. She is already learning to play the sitar and has a keen interest in world cinema.

‘Warrant not needed’

The police raid on Ms. Sen’s residence began at 7 a.m. on June 6, and continued for nine hours before she was arrested at 4 p.m. The Pune Police’s ACP (Swargate Division) Shivaji Pawar, the investigating officer in the case, told The Hindu , “We did not need a search warrant to raid her house as she has been charged with a cognizable offence, so we have inherent powers to do so.”

Joint Commissioner of Police (Pune), Ravindra Kadam said, “I won’t elaborate on the material I have against Dr. Sen, I won’t say anything about the emails that I have, but I can certainly assure you that we have definite evidence against her and her involvement in Maoist activities, and that she supports the organisation Elgar Parishad. I also have material to prove that she supports a banned organisation.”

He added that some hard disks and pen drives were seized during the raid, and have been sent for forensic tests. “Whether they contain anything incriminating can be said only after a report from the lab.”

Police on the level?

Retired Bombay High Court Judge Abhay Thipsay said, “What I’ve seen is the police claim they go in for extensive searches, and say a number of documents have been recovered from the accused. And they keep analysing them slowly saying they have to go through with that process, saying something has been found. Whether that is true or not cannot be determined at this stage.”

Mr. Pawar maintained due diligence had been done. “Only after going through all documents recovered, and with much thought, have we invoked UAPA sections.”

Mr. Thipsay added, “Under UAPA, bail is difficult. You have to rely solely on what the police say. The defendant cannot be taken into consideration at that time. It’s a draconian provision which says that if it is prima facie true, you cannot be released on bail. The idea is to detain, whatever may happen in the trial. The police use it for effect during the pre-trial detention. They’re not bothered very much with what happens subsequently. Their purpose is served because the accused remains in custody for one or two years.”

Former Supreme Court Judge B.N. Srikrishna said, “Each time the Act is challenged, the courts take a lenient view and say the government requires this much power, otherwise it will be impossible to handle the accused. If it’s not a legitimate case, the constitutionality of UAPA must be challenged.”

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