‘UAPA must be scrapped’: Indira Jaising

Senior lawyer Indira Jaising was among the first to tweet about the acquittal of Prof. G.N. Saibaba and his fellow accused. Known for having successfully fought many legal battles for those deprived of their fundamental rights, from the 1984 Bhopal gas victims to the revolutionary poet Varavara Rao (accused in the Bhima Koregaon case, for whom she got bail in 2021), the first woman Additional Solicitor General has also fought landmark cases against the discrimination of women, such as the 1986 Mary Roy case and the 1999 Githa Hariharan case. Along with Anand Grover, she runs the online law magazine The Leaflet and the NGO Lawyers’ Collective, which provides legal aid to those in need, and which, in 2016, became one of the first NGOs to come under attack by the government. Frontline spoke to Jaising about the verdict and what it means for the country’s legal system. Excerpts from the interview:

Your first thoughts on the judgment.

It’s great to see judges stick to the law and enforce it, that is what they are there for. In recent times, we’ve seen judges getting carried away by the terms “terrorism” and “urban naxals”. It’s good to see judges who are not so carried away. But I must say that the legal team also focussed on the law and demonstrated how it was violated. That got them the acquittal. However, simultaneously with this thought came the depressing thought that no court of law can ever return to them those lost years and their health. Obviously, a lot needs to change with the system.

The judgment deals at length with the lack of sanction for prosecution as required under the Unlawful Activities (Prevention) Act. Police often dismiss this as a “procedural lapse” and even the media describe acquittals based on this as being “merely on technical grounds”. Will the emphasis given to this by this judgment make a difference to these perceptions?

What is the right to life and liberty all about? No person shall be denied life and liberty except by procedure established by law. If that is what you mean by technical, that is what Article 21 is all about. Violation of technical law leads to violation of substantive law. Take an example from the judgment. No hash value was taken from the electronic devices seized. How does one then know whether the material has not been planted after recovery? The seized materials were not sealed. How do we know what was inserted after the seizure? Procedure is the handmaid of justice, it is said. As of today, it is the only thing that separates all of us from being thrown into the star chambers of hell.

Will the importance the judgment gives to lack of sanction act as a warning to prosecuting agencies to follow the procedures laid down?

It’s not just a warning. In this case, the sanction was made void. It’s non-application of mind. It will discourage mechanical sanctions being given. Our institutions have lost their independence, it’s almost as if those in charge of important functions put their thumb impression on anything they are told to put it on. But unless there are consequences for doing this, things may not change.

The judgment also talks about the detailed safeguards that must be followed while prosecuting under UAPA. Will this act as a precedent?

Undoubtedly yes, an independent review (of the material against the accused based on which sanction under UAPA is granted) means an independent review. However, where will one find “independent” officials in today’s India? It’s a challenge. I wish the court had clarified what “independent” means in the context of UAPA.

What does this judgment say about the way the UAPA court conducted the trial and passed judgment? And will the overturning of the trial court’s order act as a warning to other UAPA courts?

Can’t say. You have heard what the CJI [Chief Justice of India] has been saying about the grant of bail by trial courts. If the Supreme Court itself has no judicial policy on these issues, what can you expect from trial courts? The leadership of the Supreme Court is required to deal with the issue.

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The judgment quotes the Supreme Court’s order granting bail to Vernon Gonsalves, an accused in the Bhima Koregaon case. Will this judgment in turn be helpful in the Bhima Koregaon case, especially with regard to the way police collect and present electronic evidence?

Yes, on electronic evidence, this judgment is a precedent. It lays down that not taking the hash value renders the evidence of no real value. This is also what happened in the Bhima Koregaon case. But we do not want to wait for 11 years to raise the issue. It’s sad it’s already been over five years since the arrests. We want the High Court to decide this as a threshold issue. Apart from electronic evidence, which, according to experts, has been planted, there is no case.

Will it be easy to overturn this judgment?

The State will have the luxury of litigation as they have no lack of funds and people willing to do the job. Let them litigate. These people are out now. What they wanted was liberty, they have got it. There is nothing to fear. An intellectual fight from a position of freedom is possible. The law is an open book, and these judges have demonstrated that they know how to enforce the law.

This is yet another acquittal under the UAPA. What does this say about the use of this law?

UAPA must be scrapped. Unfortunately, similar offences have been introduced in the new law, making it impossible to decide which law will be used: the old, the new or both?

Under the new criminal code, will such an acquittal be possible?

Lawmaking is a specialised art. Words have to be used carefully. They have not been used carefully in the new code, so the field has been left open for misuse and targeted attacks on dissenters.

Jyoti Punwani is a Mumbai-based freelance journalist.