Stan Swamy moves Bombay HC challenging constitutional validity of UAPA provision relating to grant of bail

Bhima Koregaon accused Father Stan Swamy has approached Bombay High Court challenging the constitutional validity of Section 43D(5) of the Unlawful Activities Prevention Act (UAPA) of 1967.

In his writ petition, Swamy submitted that Section 43D(5) creates an 'unsurmountable hurdle' for any accused to be granted bail under UAPA thus making it violative of Articles 14 and 21 of the Constitution of India, Bar & Bench reported.

Section 43D(5) of UAPA reads as follows: "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."

Swamy contended that the condition of prima facie finding by the court (considering the bail plea) of the accusation being true, puts a major obstacle for the accused to get bail and makes the provision of bail illusory.

As reported by National Herald, the Bombay High Court on had May 28 directed Maharashtra government to transfer the octogenarian Jusuit priest to a private hospital for a period of 15 days in view of his deteriorating health.

A Bench of Justices SS Shinde and NR Borkar held that even though JJ government hospital is equipped with doctors, medical staff and equipments, it may not be possible to give proper attention to Swamy due to the present COVID-19 pandemic and influx of patients.

The court, therefore, directed that Swamy be transferred to Holy Family hospital and admitted to the hospital for 15 days.

The direction was passed in an application for temporary bail on medical filed by Swamy challenging two orders passed by the Special NIA Court rejecting his bail plea.

Subsequently, Swamy (84), who is suffering from Parkinson's disease and several other ailments, was shifted from the Taloja prison in neighbouring Navi Mumbai to the Holy Family Hospital, where a COVID test done on him revealed that he was COVID positive.

His lawyer Mihir Desai had alleged that this was a result of "criminal negligence" on part of the Taloja prison authorities, who failed to provide adequate care to the inmates and conduct their RT-PCR tests timely.

It may be recalled that in a hearing held on May 21, Swamy had specifically refused to get admitted to any hospital and requested for release on interim bail. He had said that he would prefer to die in jail than be admitted to a hospital.

Swamy informed the court that when he was brought to the court eight months ago, he came with a functional body but since then, his health has steadily deteriorated.

"I was taken to JJ hospital and there were a lot of people but I had no opportunity to explain what I should be given. There are some medicines which the jail authorities game me, but my deterioration is more powerful than the tablets they are giving me," Swamy had submitted.

"The only thing I request is to consider for interim bail. I have been in deteriorating condition. I would rather be in Ranchi. I do not think any of that (hospitalization) is going to help" he had said.

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