Stan Swamy Challenges the Constitutional Validity of Section 43d (5) Of UAPA Act in Bombay High Court
(Judicial Quest News Network)
Octogenarian Father Stan Swamy, accused in Bhima Koregaon – Elgaar Parishad case, a tribal activist, from Ranchi and lodged in jail since 2018, has moved Bombay High Court challenging the section 43-D (5) of the Unlawful Activities Prevention Act. Which imposes strict conditions for grant of bail.
The plea filed through Advocate Mihir Joshi points that section 43-D (5) of UAPA is violative of Article 14,19 and 21 of the Constitution.
The plea urges the court to quash and set aside the terminology “all its formations and front organisations” in first schedule of the UAPA for being violative of Constitutional provisions.
In his petition Swamy contended that the condition of prima facie finding by the court (considering the bail plea) of the accused to get bail and makes the provision of bail illusory.
He submitted that even for cases under UAPA the bail provisions needed to be seen in context of the Code of Criminal Procedure (CrPC) which did not prescribed any condition concerning the court having to come to a prima facie conclusion about guilt or innocence of the accused in order to grant bail.
The present plea has argued that the presumption of the innocence is the corner stone of the Indian Criminal Justice system and a human right, and when such harsh conditions are imposed in respect of grant of bail even before the trial is conducted the same inverts on its head, the presumption of innocence and imposition of harsh conditions especially pre conviction amounts to violations of presumption of innocence which is inbuilt into Article 21 of the constitution.
The plea further said that “the grant of bail is the norm and its denial should nor be denied his/her freedom”.
Under Section 439 CrPC allows to take care of the “compelling state interest” element.
Relying on the Supreme Court’s judgement in the National Investigation Agency Vs. Zahoor Ahmed Shah Watali Swamy submitted that the judgement created a situation where bail could be denied by relying upon prosecution documents even if they would be inadmissible during trial.
The Jesuit priest and octogenarian was arrested from his house in Ranchi on October 8, 2020 for his alleged role in inciting riots at Bhima Koregaon in 2018.
He was later reminded to judicial custody. He is presently admitted in the Holy Family Private Hospital due to his deteriorating health condition after an order of the High Court in his appeals challenging rejection of bails by the Special Court.
The special NIA Court Mumbai in March,2021, refused to grant him bail.
Father Stan had filed for bail on grounds that he is being framed in the case by the National Investigation Agency (NIA) due to the nature of his work and that he is suffering from serious ailments.
