'Insurmountable Condition For Bail' : Stan Swamy Challenges Constitutionality Of Section 43D(5) In Bombay High Court

Octogenarian Stan Swamy, a tribal rights activist, from Ranchi and accused in the 2018 Bhima Koregaon – Elgaar Parishad case, has moved the Bombay High Court challenging the Section 43-D (5) of the Unlawful Activities Prevention Act, which imposes strict conditions for grant of bail, for being violative of Articles 14,19 and 21 of the Constitution.

The plea filed through Advocate Mihir Joshi has also urged the Court to quash and set aside the terminology "all its formations and front organisations" in first schedule of UAPA for being violative of Constitutional provisions.

Petitioner Swamy has also sought to be enlarged on bail on furnishing bail bond and surety, while challenging the Special Court's order dated 22nd March 2021 that rejected his bail application.

As an alternative relief, Swamy has sought directions to the Respondents to keep him under house arrest at his residence in Jharkhand during pendency of the trial.

It may be noted that Section 43D(5) of the UAPA states that:

"Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

The present plea has argued that presumption of innocence is the corner stone of the Indian Criminal justice system and a human right, and when such harsh conditions are imposed in respect of grant of bail even before the Trial is conducted the same inverts on its head, the presumption of innocence and imposition of harsh conditions especially pre conviction amounts to violation of presumption of innocence which is inbuilt into Article 21 of the Constitution.

"The grant of bail is the norm and its denial should be an exception because an accused who is presumed to be innocent Until proven guilty should nor be denied his/her freedom" the plea has said.

It is argued that the existing bail provisions under Section 439 CrPC are enough to take care of the "compelling state interest" element.

The Special NIA Court Mumbai had in March 2021 refused to grant bail to 83-year-old Father Stan Swamy, a tribal rights activist, from Ranchi, in Jharkhand, accused in the 2018 Bhima Koregaon – Elgaar Parishad case. Special Judge under the NIA Act DE Kothlikar passed the order dismissing the bail application, which had also cited medical grounds on account of Parkinsons disease of Stan Swamy.

The Jesuit priest was arrested on October 8, 2020 and charged under various sections of the IPC and terror related offences of Unlawful Activities (Prevention) Act for allegedly furthering the cause of banned CPI (Maoist) through various civil rights organisations he is a part of. His application for bail was pending since November, 2020.

Father Stan had filed for bail on grounds that he is being framed in the case by the National Investigating Agency (NIA) due to the nature of his work and that he is suffering from serious ailments.