Dr RML National Law University, Lucknow.

Criminal Procedure Code

Favouring Unfounded Fear of Security Threat Over Personal Liberties: Restrictive Bail,
Prisons, and the Death of Stan Swamy

Submitted to:
Dr. Prem Kumar Gautam
Assistant Professor

Submitted By:
Ayush Kumar
2001010152
Section: A

Page 1 of 9
 ACKNOWLEDGEMENT

It has been really fun to work on this project, and I would like to dedicate my sincere thanks to
Prof. (Dr.) Prem Kumar Gautam for providing me the opportunity to work on this project and for
extending his excellent guidance throughout the course of this project.

I would also like to thank all the other individuals who participated in the survey and helped me
throughout the project to the best of their abilities.

Ayush Kumar

Page 2 of 9
 CONTENTS

ACKNOWLEDGEMENT ......................................................................................................... 2

INTRODUCTION: .................................................................................................................... 4

DEBILITATING PRISONERS’ RIGHTS AND A WEAK JUDICIARY: .............................. 4

PRESUMPTION OF GUILT AND RESTRICTIVE BAIL UNDER UAPA: .......................... 5

CONCLUSION AND SUGGESTIONS: ................................................................................... 7

BIBLIOGRAPHY: ..................................................................................................................... 9

Page 3 of 9
INTRODUCTION:

“I would rather die here very shortly if things go on as it is.”- Stan Swamy

The oldest person to be accused of terrorism in India, 84-year-old Father Stan Swamy, fell victim
to the criminal justice system catered by the draconian laws and an insensitive judiciary of our
country. He spent his life fighting for the protection and upliftment of the Adivasi tribes. From the
non-implementation of the Fifth Schedule of the Constitution which provides for the establishment
of a Tribes Advisory Council with three-fourth members from the Adivasi community to
advocating for the rights of undertrial prisoners and the deplorable condition in jails while being
confined in them himself, he dedicated a significant part of his life fighting for the protection and
upliftment of the Adivasi tribes.

Following police raids in early 2020, he was arrested on flimsy grounds under the Unlawful
Activities (Prevention) Act, 1987 (UAPA) by the National Investigation Agency (NIA) in October
for an alleged Maoist conspiracy that led to violent clashes in (2018) Bhima Koregaon Village
despite his deteriorating health conditions and the risk of contracting Covid-19. The grounds for
arrest were the seizure of some documents, Communist literature from Stan Swamy’s house, and
the mere fact that he was in contact with other activists accused in the case of Romila Thapar v
Union of India (Bhima Koregaon case). However, a new report by Arsenal Consulting (based in
Boston), which suggests that incriminating material must have been planted in Stan Swamy’s
computer, significantly weakens the prosecution’s case.

DEBILITATING PRISONERS’ RIGHTS AND A WEAK JUDICIARY:

Stan suffered from Parkinson’s disease, had a problem hearing, and was physically weak. He
applied for bail on the medical ground several times only to be insensitively turned down by the
courts. Section 13(b) of the UAPA act specifies that imprisonment may extend up to seven years
for someone who incites the commission of any unlawful activity. As a step to decongest the
prisons on account of Covid-19, the Supreme Court of India passed an order directing police not
to arrest any person accused of a crime with imprisonment of fewer than seven years. Considering
Stan’s generative disease, the fact that he was not able to perform routine activities in the jail

Page 4 of 9
because of it, and the medical reports supporting all this should have been enough for the court to
grant him interim bail on medical grounds.

Gross negligence towards Stan’s health is a clear violation of Article 21 and the law established in
the case of Pt. Parmanand Katara v Union of India where the court opined that the state has the
responsibility of preserving life in the prisons whether the person is innocent or a criminal. The
Prisoners Act, 1900 specifies three types of prisoners, a convict, an under-trial, and a civil prisoner
who may have been detained under preventive detention law. But none of the three categories of
prisoners lose their fundamental rights once they enter a prison. Despite this, Swamy had to wait
for a month to get a simple sipper and a straw as it was difficult for him to hold a glass of water
and drink from it.

Apart from other protections available, the Model Prison Manual (2016) ensures basic facilities
like medical aid, clean drinking water, adequately ventilated and well-lit prisons for the inmates.
However, because of low health expenditure, only one medical worker serves nearly 243 inmates
and the staff vacancy of nearly 30 per cent. Additionally, inmates tend to have a short life
expectancy and are susceptible to a variety of infectious illnesses, according to the India Justice
Report (2019). The mortality rate in prison has also gone up with time, the number of deaths in
prison in 2001 was 978 and increased to 1655 in 2016 (69 per cent increase).

Despite a 32-page comprehensive Model Prison Manual to combat diseases, administer prison
hospitals, and schedule frequent health check-ups, such situations persist. In actuality, jail hospitals
operate haphazardly. They frequently lack enough equipment, and the quality of therapy is
dependent on overworked staff.

PRESUMPTION OF GUILT AND RESTRICTIVE BAIL UNDER UAPA:

According to Article 11(1) of the Universal Declaration of Human Rights (UDHR), a person who
is charged with a penal offence has the right to be presumed innocent until proved guilty. Article
14(2) of the International Covenant on Civil and Political Rights reiterates the same. Further, in
the case of Noor Aga v State of Punjab, the court stated that though the theory of presumption of
innocence is not explicitly written in our constitution, it is paramount in “preserving confidence
in the enduring integrity and security of our legal system.”

Page 5 of 9
However, Section 43D (5) of UAPA makes it almost impossible for the accused to seek bail. A
person charged under UAPA cannot get bail if the courts find the accusations framed in the case
diary and the First Information Report (FIR) to be “prima facie” true.

In the case of National Investigation Agency vs Zahoor Ahmad Shah Watali (“Watali judgement”),
the court narrowed down the meaning of “prima facie”. The decision established that the courts
are not supposed to analyse the merits and demerits of the evidence collated by the investigative
authorities. Further, the courts cannot decide on the admissibility and inadmissibility of
documentary and oral evidence at this stage. This judgement is problematic in itself as it leaves no
room for the application of any judicial reasoning whatsoever.

As a result, the burden of proof shifts from the person who brings the suit to the accused. The
accused has to demonstrate that the prosecution has not been able to show that the accusations are
prima facie true. Moreover, this judgement has left no options open with the High Courts as it can
no longer examine the pieces of evidence in a UAPA case. The judgment effectively rules out the
admission or analysis of evidence at any stage. By doing so, it effectively excludes the Evidence
Act, 1872 from consideration, perhaps rendering the judgement unconstitutional.

The rule established in State of Rajasthan v Balchand asserts that granting bail to the accused is a
rule and denying it is an exception. With time, the concept of restrictive bail developed in India.
The jurisprudence around it started taking shape when a restrictive bail clause was added to the
Essential Supplies (Temporary Powers) Act, (1946) in 1950. The new clause specified that "bail
cannot be given unless the prosecutor is heard and the Magistrate is satisfied that there are
reasonable grounds for believing that the accused is not guilty." Later, in the case of Kartar Singh
v State Of Punjab, a similar restrictive bail provision in section 20(8) of Terrorist And Disruptive
Activities (Prevention) Act, 1987 was constitutionally upheld.

The question is whether special bail provisions like these can take away the constitutional remedies
and other fundamental rights like Article 21 guaranteed to the citizens. Stan, who could not even
do his daily chores on his own and had a disease that mushrooms with each passing day were
repeatedly denied bail on health grounds. As a result of systemic abuse of majoritarian authority
and disregard for the rule of law, only his death could bail him out of the prison once and for all.

Page 6 of 9
In the recent case of Union Of India v KA Najeeb, the court held that the presence of statutory
restrictions on bail like Section 43D (5) of UAPA per se does not hinder the ability of courts to
grant bail on grounds of violation of Part III of the Constitution. It is well-established that the
legislature cannot take away the constitutional remedies. In Purnima Upadhyay v State of
Maharashtra, the court stated that section 43D (5) of UAPA “does not and cannot take away the
constitutional remedy of an accused under Article 226 and Article 32 of the Constitution.”

CONCLUSION AND SUGGESTIONS:

Indian jails are overcrowded on average by more than 150 per cent, with some jails exceeding 600
per cent of their carrying limit. The main cause of this massive overcrowding is pre-trial
imprisonment, often known as "undertrial" in India. The conditions offered to convicts in these
overcrowded jails are unsanitary and harmful to their health and well-being. Human rights
advocates have often condemned Indian jails for their terrible conditions, citing rampant
unhygienic conditions.

There is a serious need for the courts to adopt the oft-quoted phrase- “Bail is a rule, and jail is an
exception” and bolster the practice of granting bail to the under-trail prisoners using their own
judicial acumen. This will not only start the decongestion process in the prisons but also balance
the ratio between medical workers and the prisoners.

Personal liberty is a priceless possession of mankind. Section 43D (5) of UAPA needs to be
amended. A one-size-fits-all bail provision struggles to sift out the real threat and end up curtailing
personal liberties. The amendment has to strike an equilibrium between two opposing demands:
protection of society from criminals and upholding the theory of presumption of innocence.
Restrictive bail provisions should take a back seat in front of the judge’s judicial discretion.

An accused who is likely to be a real threat to national security must be detained by the courts
themselves. It is indispensable that courts are freed by the faulty Watali judgment (2019) and are
able to analyse the evidence in a case and assume that the accused is innocent until proven guilty.
It is critical to impose stringent limitations on pre-trial detention based on elements such as the
possibility of escaping from justice, the likelihood of evidence tampering, witness intimidation,
the seriousness of the offence, and the tendency to engage in criminal activity while on bail.

Page 7 of 9
Father Stan Swamy’s death should bring repentance and self-condemnation to the whole criminal
justice system. His death is a reminder of the need for changes in the way the system deals with
criminals and to ensure that laws should not be misused to stifle personal liberties.

Page 8 of 9
BIBLIOGRAPHY:

• https://www.mea.gov.in/Images/pdf1/S5.pdf
• https://tribal.nic.in/downloads/CLM/CLM_Reports/3.pdf
• https://www.mha.gov.in/sites/default/files/A1967-37.pdf
• https://indiankanoon.org/doc/52834611/
• https://www.washingtonpost.com/world/2021/07/06/bhima-koregaon-case-india/
• https://www.mid-day.com/mumbai/mumbai-news/article/father-stan-swamy-associates-
remember-his-struggles-to-uplift-marginalised-communities-23069274
• https://main.sci.gov.in/supremecourt/2020/9761/9761_2020_31_301_27999_Order_07-May-
2021.pdf
• https://main.sci.gov.in/jonew/judis/7839.pdf
• https://www.mha.gov.in/sites/default/files/PrisonManual2016.pdf
• https://www.casemine.com/judgement/in/58117e252713e1794786213c
• https://www.hrw.org/sites/default/files/reports/INDIA914.pdf
• https://legislative.gov.in/sites/default/files/legislative_references/1946.pdf
• https://www.tribuneindia.com/news/comment/covid-19-spread-in-jails-lays-bare-systemic-
flaws-102458
• https://www.tatatrusts.org/upload/pdf/overall-report-single.pdf

Page 9 of 9