10 highlights
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It has been 81 years since Arthur Koestler’s Darkness at Noon was first published. The novel is set in the backdrop of the Great Purge of the late 1930s in the Soviet Union under Stalin. This period was marked by, among other things, political repression, police surveillance, general suspicion of the opposition, imprisonment, and executions.
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Finally, on October 8, 2020, Fr. Swamy was arrested by the National Investigation Agency (NIA), under the Unlawful Activities (Prevention) Act (UAPA), the 16th to join a roster of professors, activists, writers, and public intellectuals, as a suspect in the Bhima-Koregaon case.
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The authenticity of some of the allegedly indicting documentation, including a key report, has been questioned by international forensic data experts. But the state defended its arrest arguing that these issues must be gone into only during trial, and that the accused — i.e., Fr. Swamy — should remain in jail until then.
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When he applied for medical bail, the court kept adjourning the matter, and merely offered him the services of a private hospital. In my opinion, this demonstrates a lack of sensitivity on the part of the judges, which is deeply saddening.
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Why is the political establishment, and the police, so emboldened to pursue cases under UAPA against individuals like Fr. Swamy? A key reason, undoubtedly, is the weak judiciary we have today.
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The source of this worry is the Supreme Court of India itself. Its April 2019 decision in National Investigation Agency vs Zahoor Ahmad Shah Watali on the interpretation of the UAPA has affected all downstream decisions involving the statute. This decision has created a new doctrine, which is that effectively, an accused must remain in custody throughout the period of the trial, even if it is eventually proven that the evidence against the person was inadmissible, and the accused is finally acquitted.
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According to the decision, in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct. Further, bail can now be obtained only if the accused produces material to contradict the prosecution.
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This is being abused by the government, police and prosecution liberally: now, all dissenters are routinely implicated under (wild and improbable) charges of sedition or criminal conspiracy and under the UAPA. Due to the Supreme Court judgment, High Courts have their hands tied, and must perforce refuse bail, as disproving the case is virtually impossible.
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When courts do go into such matters, as in the instance of the Delhi High Court granting bail to three young activists accused in a conspiracy relating to the 2020 riots in Delhi, the Supreme Court uncharacteristically decides to weigh in. The Supreme Court reportedly expressed “surprise” and dissatisfaction at the High Court’s decision, giving the direction that the decision will “not to be treated as precedent by any court” to give similar reliefs.
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As Fr. Swamy himself said, though, “we will still sing in the chorus. A caged bird can still sing.”