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Saturday, October 23, 2021

Granting bail in UAPA cases, Assam courts push back against misuse of terror law

The decisions by the courts in Assam are a welcome affirmation of judicial reason — and they must deter the state from turning terror laws into weapons against justice.

By: Editorial |
Updated: October 13, 2021 10:53:18 am
In recent times, the judiciary has a mixed record in coming to the defence of the citizen ranged against the might of the state.

In a welcome pushback, the judiciary in Assam has granted bail to 14 people arrested under the UAPA for social media posts that allegedly supported the Taliban takeover of Afghanistan. The courts were either not convinced that the prosecution’s case added up to a cognisable offence; or found the evidence insufficient to make out that the accused, even if they wrote an objectionable Facebook post, supported a terrorist organisation. In still others, they granted bail at the “motion stage”. In doing so, they cut short what has become a familiar syndrome of “process as punishment” in UAPA cases — prolonged imprisonment without bail, sometimes running into over a year, without even the commencement of a trial. It was this process that degenerated into a spectacle of inhumanity in the incarceration and death of Stan Swamy; and continues in the plight of public intellectuals jailed for over two years in the Bhima Koregaon case, and journalist Siddique Kappan’s imprisonment. The decisions of the Gauhati High Court and the lower courts in Assam are a welcome departure from the excessively harsh interpretation of Section 43D(5) of the UAPA following the Supreme Court’s 2019 Watali judgment, which held that courts must accept the state’s case without examining its merits while granting bail.

Earlier this year, the Delhi High Court, too, while granting bail to anti-CAA-NRC activists Natasha Narwal, Devangana Kalita and Asif Tanha, jailed for over a year under UAPA, had sounded a dissenting note. “In its anxiety to suppress dissent, in the mind of the state, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred,” it had said. Indeed, in the hands of a “strong” executive that governs with a heavy hand, that would rather “police” political disputes, draconian provisions of a law like the UAPA have been used, time and again, to squeeze out dissent and difference, to criminalise the protestor and the protest.

In recent times, the judiciary has a mixed record in coming to the defence of the citizen ranged against the might of the state. For instance, the Delhi HC’s attempt to raise the bar when it comes to bail under UAPA was met with a rap on the wrist from the Supreme Court. In this backdrop, the decisions by the courts in Assam are a welcome affirmation of judicial reason — and they must deter the state from turning terror laws into weapons against justice.

This editorial first appeared in the print edition on October 13, 2021 under the title ‘Order of reason’.

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