Former Supreme Court judges raise concerns over misuse of UAPA

Point to trauma of kin of accused, conflating dissent with terrorism, ‘soft torture’ in prisons

July 24, 2021 10:53 pm | Updated July 25, 2021 10:01 am IST - New Delhi

Former Supreme Court judge Madan B. Lokur

Former Supreme Court judge Madan B. Lokur

Former Supreme Court judge, Justice Madan B. Lokur, on Saturday said the courts, society and the state should consider the mental trauma afflicted on the families of activists, journalists and civil society members accused of sedition under the Unlawful Activities (Prevention) Act and languishing in jail for months.

Justice Lokur asked what kind of society is being built where the families and friends of these incarcerated people have to face barbs about their loved ones being branded traitors for expressing their dissent.

“Look at the emotional, psychological impact on his family, him... His children... They will go to school where classmates will say your father is a ‘terrorist’ for something he has not done... We are not looking at the mental aspect,” Justice Lokur said in a virtual conference on ill-effects of UAPA and the law of sedition mediated by RTI activist Anjali Bhardwaj.

He said giving compensation was not enough.

Justice Lokur spoke of “soft torture” practised on prison inmates through overcrowding of jails and bad hygiene within their walls.

Justice Deepak Gupta, a former Supreme Court judge, referred to the death of 84-year-old Father Stan Swamy, who suffered from Parkinson's disease, in custody.

“Are we human,” Justice Gupta asked in his address.

The retired judge spoke about the case of an activist in Manipur, who said cow urine was not a cure for COVID and was put in jail for sedition. He asked whether we were living in a “Police State”.

Justice Gupta said the courts should intervene under Article 142 of the Constitution and lay down guidelines on the use of UAPA adding that it is a proven fact that UAPA can be misused.

“The UAPA should not remain in this form,” he said.

While terrorism is a worrying aspect, the law on terrorism should not be nebulous, he said.

“Terrorism is a worrying issue. Something like Mumbai attacks happens, it is worrying. The law should be drafted and interpreted in such a manner that there is no scope of misuse,” Justice Gupta said.

Justice Aftab Alam, a retired Supreme Court judge, said by focussing on dissent, the government runs the danger of shifting its attention from the actual 3% of terrorism cases. He said many lives have been ruined after years behind bars. Jails are being stuffed with people booked under UAPA, but only a minuscule get convicted.

He said it was time to contemplate what kind of a state we wanted. Is it a strong state which puts people in jail under UAPA for years, he asked.

He said peaceful protests and acts of violence were clubbed together and booked under UAPA. No distinction is made between the right to dissent and free speech and the crime of committing violent acts against the state.

Justice Gopala Gowda, a former Supreme Court judge, referred to how the state has made it a battle between terrorism and human rights. He said if human rights are protected, terrorism would die a natural death.

He said special security legislations like UAPA arm security agencies with unbridled power. It lays down a situation in which the State can commit excesses.

Noting about the limited power of judicial review UAPA provides, Justice Gowda said a law which takes away the constitutional courts' authority to grant bail is itself unconstitutional.

Justice Gowda said courts cannot say they have no power when the state charges people for expressing dissent under the UAPA and let them languish in jail.

He said the circumstances leading to the death of Father Swamy was alarming. “The NIA and the courts have failed to take into consideration that he was entitled to bail,” Justice Gowda said.

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