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Father Stan Swamy accused in Elgar Parishad case passed away in custody

Father Stan Swamy accused in Elgar Parishad case passed away in custody

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Why in news?

  • Tribal activist Father Stan Swamy, who was imprisoned in the Bhima Koregaon case, passed away ahead of his bail hearing in the Bombay High Court.

What is Elgar Parishad?

  • Elgar Parishad,a conference held in Shaniwar Wada near Pune to mark the 200th anniversary of the Battle of Koregaon-Bhima.

Who was Father Stan Swamy?

  • Stan Lourduswamy S.J., was an Indian Roman Catholic priest and a tribals rights activist for several decades.
  • He had worked in the state for over three decades on various issues of the Adivasi communities on land, forest, and labour rights.
  • The 84-year-old activist was arrested by the National Investigation Agency (NIA) in October 2020. He was alleged to have involved in the 2018 Bhima Koregaon violence.
  • He was also charged under the Unlawful Activities (Prevention) Act, 1967.
  • Seeking an urgent hearing on his medical bail plea after the Jesuit priest after his health deteriorated and ultimately head to his death.

What is bail?

  • Bail is the conditional/provisional release of a person held under legal custody (in matters which are yet to be pronounced by the Court), by undertaking a promise to appear in the Court as and when required. It signifies a security/collateral deposited before the Court for release.

Bail Provisions

  • Regular Bail: This is a direction given by the Court (any Court in the country) to release a person who has already been arrested and is being held in police custody. A person may apply for such bail under Sections 437 and 439 of the CrPC.
  • Interim Bail: Bail granted by the Court for a limited time while the application for Anticipatory Bail or Regular Bail is pending in court.
  • Anticipatory Bail: A direction issued to release a person on bail before the arrest. In this case, there is a fear of arrest, but the person is not arrested before the Bail is granted. A person may apply for such bail under Section 438 of the Code of Criminal Procedure.
  • It is issued only by the Sessions Court and High Court.
    • Section 438of the CrPC lays down the provisions on anticipatory Bail
      • 438(1):When any person anticipates that Person may get arrested on an accusation of having committed a non-bailable offence, Person may apply to the High Court or the Court of Session for a direction under this Section. The Court may direct (if it thinks fit) that in the event of such arrests, he/she shall be released on Bail even before an arrest is made without subjecting him/her to further restraints.
      • 438(2):When the High Court or the Session Court makes a direction under Sec.438(1), it may lay down certain conditions in the light of the facts of the particular case, as it may think fit.
  • The indefinite arrest of any person
  • Any person who is an asylum-seeker or a suspected terrorist can be detained indefinitely in certain countries. The Government or law-enforcement agency detains any person who is suspected to be a terrorist, enemy combatants, common criminals held in pre-trial detention, and those persons who are held as security risks.
  • Under National Security, Act
    • A person can be detained for up to 12 months without a charge. A person can be held for 10 days without being told the charges against them. The person can appeal before a high court advisory board but will not be allowed a lawyer during the trial.
  • Article 22 (1) of the Indian Constitution says an arrested person cannot be denied the right to consult and to be defended by, a legal practitioner of his choice.
    • According to Section 50 of the Criminal Procedure Code (CRPC), any person arrested has to be informed of the grounds of arrest and has the right to bail.
  • However, under National Security Act, none of these rights is available to the person detained. The government holds the right to conceal information which it considers to be against the public interest to disclose.
  • The detained person is not entitled to any legal aid.

Most recent use of the National Security Act

  • On January 17, 2020, the Lieutenant Governor of Delhi passed an order conferring the Commissioner of Police with the power to detain under NSA for three months between 19 January and 18 April.
  • The order came at a time when the national capital was witnessing protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC)
  • In January 2019,In Uttar Pradesh arrested three persons under NSA in connection with an alleged cow-slaughter case.
  • In November 2018, Manipur journalist Kishore Chandra Wangkhem was detained for 12 months under the NSA for a Facebook post against the chief minister.

Bail provisions under UAPA

  • Just two days before his death, Stan Swamy had moved the Bombay High Court challenging Section 43D(5) of the Unlawful Activities Prevention Act (UAPA) a provision Swamy termed “illusory”. The provision makes a grant of bail virtually impossible under UAPA since it leaves little room for judicial reasoning.
  • In 2019, the SC defined prima facie narrowly to mean that the courts must not analyse evidence or circumstances but look at the “totality of the case” presented by the state.
  • Bail Under UAPA CanBe Granted if the Accused’s Trial has been Delayed. In Union of India K. A. Najeeb, the Court granted bail to an accused charged under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA‘): India’s primary anti-terror legislation.
  • Recent cases under UAPA which were granted bail
  • In February 2021, the Bombay High Court granted bail to Telugu poet Varavara Rao— an accused in the Elgar Parishad case along with Swamy holding that bail under UAPA can be granted by constitutional courts purely on grounds of sickness and advanced age.
  • On June 17, the Karnataka High Court granted bail to over 115 accused charged under UAPA for the 2020 East Bengaluru riots holding that the NIA court had extended the time for investigation without hearing the accused.
  • The court cited that the fundamental right to be treated fairly under the law of the accused was violated as a reason for granting bail.

References