The judgement sentencing Professor GN Saibaba in particular and the Unlawful Activities Prevention Act (UAPA) in general, turn the fundamental tenets of criminal law on their heads, and makes it a grave guilt to harbour certain political beliefs. And, the burden of proof is shifted from the prosecution to the defence, and principles of evidence were flouted with abandon, said speakers at a meeting in the national capital on Sunday.
During the trial, the “malleable procedures” adopted by the judge raise serious doubts about the (in)justice of the ruling. There were no independent witnesses, the panchnamas of the articles recovered were full of holes because the prosecution witnesses could not distinguish between different electronic storage devices.
Most important was the fact about the call detail records of the accused. It was the prosecution’s duty to produce the call detail records to prove the actual time of arrest, but the judge shifted this burden on to the defence. Because the details could not be produced in court, what went unnoticed was that the accused were illegally detained for two days prior to the date of arrest shown in the court records, and tortured in custody during this period. And, the conviction was based on the confessions extracted by this custodial torture.
A political reading of the judgement, said Arun Ferreira of the Committee for Protection of Democratic Rights, shows how the prejudices of the judge were allowed to creep in and cloud his judicial reasoning. For instance, he names and blames the Revolutionary Democratic Front, the organisation of which Saibaba was a member, 65 times in his ruling – as if it was an accused in the case, although it is not a banned organisation under the UAPA.
Moreover, the judge stated that he wanted to impose a punishment higher than life imprisonment – meaning the death penalty – to Saibaba and his associates for opposing “development” in the Gadchiroli region!
In cases under the UAPA, the police need not show the exact date of commission of an offence. And offences can extend even to possession of certain literature or pamphlets espousing a particular political ideology, even though there is no legal definition of banned or proscribed literature. “But that is the beauty of the UAPA – because under it, anyone could be arrested for anything,” Ferreira recalled a senior police officer telling him during his trial.
Gautam Navlakha of People's Union for Democratic Rights (PUDR) pointed out that the Saibaba judgement reveals how the UAPA is a weapon that allows the government to enter into a conspiracy against those who dissent or have political opinions against it.
The banning of organisations, proscribing their literature, punishing the membership of banned organisations ensures that information about the war the state is waging against its own people in different parts of India – in Kashmir, Manipur or Chhattisgarh – is suppressed under the guise of penalising “terrorist acts” and “terrorist organisations”, he stated.
Navlakha also showed how the vast swathe of offences named in the UAPA, and the modus operandi prescribed by it, fell afoul of fundamental rights guaranteed by the Constitution.
Both activists contended that the UAPA, by expanding the frontiers of what an “offence” means, actually criminalise people for their political conscience and beliefs, and not because they have committed any violent crimes. The annals of the UAPA’s use showed up a long history of politically motivated trials where successive governments in power had persecuted individuals and organisations, turning them into political and legal pariahs.
The only way for a proper democracy to function, and the rule of law to be followed in both letter and spirit, was to repeal the draconian Act, they said in unison.
The PUDR sponsored meeting called for the repeal of UAPA.