The Supreme Court’s decision to stay Sedition proceedings under the colonial Section 124A of the Indian Penal Code appears to have had no impact on those charged with sedition under the draconian Unlawful Activities (Prevention) Act of 1967, either in the same case or separately.
The effect of the Supreme Court’s May 11 judgement prohibiting the use of Section 124A, a colonial statute, has not translated into bail for journalist Siddique Kappan and activists Umar Khalid and Sharjeel Imam, who are also charged under the Unlawful Activities (Prevention) Act (UAPA)
While criminal trials and court procedures were suspended under Section 124A, the Supreme Court made it plain that adjudication of other provisions of law, if any, would continue providing the court concerned was “of the view that no damage would be caused to the accused.”
On the strength of the Supreme Court judgement, Imam had recently asked the Delhi High Court for bail in a matter regarding his comments against the controversial Citizenship (Amendment) Act. He was told to go before the trial court. He’d just relocated to the lower court.
On October 5, 2020, Uttar Pradesh Police detained Kappan en route to Hathras, where a Dalit woman was allegedly murdered. He was charged with sedition, incitement to hatred, and later the UAPA. In a case related to the Delhi riots of February 2020, Khalid faces charges under Section 124A as well as different sections of the UAPA.
According to reports, the Home Ministry stated in Parliament last year that over 53% of those arrested under the UAPA in
The Act has been strengthened as a result of a 2019 amendment. Individuals, not just organizations, can now be labeled as “terrorists.”
The Supreme Court’s decision in National Investigation Agency v. Zahoor Ahmad Shah Watali in 2019 rendered obtaining bail in a UAPA case very impossible.
Incarceration for a long period of time
The decision upholds Section 43D(5) of the UAPA’s “high burden” on an accused, who would normally be detained, to show that the prosecution’s charges against him were not based on “reasonable grounds.” It has been found that a trial court could deny bail if the relevant material presented by the investigating agency was “indicative of the fact that there are reasonable reasons for believing that the accusation is prima facie accurate,” according to the ruling. An accused person could spend years in prison awaiting the outcome of his or her case.
As a result, while the suspension of Section 124A is a welcome relief, it will not lead to release for anyone facing both Section 124A and UAPA charges in the same case or in different cases. Their reality may be continued incarceration under the post-colonial UAPA.
This is when the nearly non-existent chance of bail under UAPA appears to run counter to the Supreme Court’s own 1977 decision in State Of Rajasthan vs Balchand, which stated that bail, rather than jail, should be the norm.
“Bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or causing other problems in the form of repeating offenses or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court,” Justice V.R. Krishna Iyer observed in the 1977 verdict.
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