Siddique Kappan case: Why getting bail in UAPA cases is difficult

Almost three weeks after the Supreme Court granted bail to Kerala journalist Siddique Kappan in the Hathras conspiracy case, freedom still eludes him. Kappan is being held in a Lucknow prison over a separate money-laundering case, which the Enforcement Directorate is investigating. Kappan was initially charged under the stringent Unlawful Activities Prevention Act (UAPA) for allegedly planning to incite violence.

The Lucknow Sessions Court is expected to hear Kappan’s bail petition in the Prevention of Money Laundering Act (PMLA) case on Thursday. Citing unreadiness, the city court had deferred the hearing.

Revisiting Hathras

In September 2020, a Dalit girl was raped and severely injured at Boolgarhi in western Uttar Pradesh’s Hathras district, allegedly by four upper caste Thakurs of the same village. After battling for two weeks, she succumbed to her injuries in a Delhi hospital.

The victim’s family was not allowed to perform the last rites. Citing law and order compulsions, the administration carried out the last rites in the middle of the night. This action raised multiple questions relating to the impartiality of the investigation and the intent to dispense justice to the victim’s family.

Also read: Who is Siddique Kappan and why was he in jail for two years?

Kappan’s arrest

Uttar Pradesh police arrested the journalist at the Mathura Toll Plaza in October 2020, when he was on his way to Hathras to report on the outrage. He has been in jail ever since. He was booked under various sections of the Indian Penal Code (IPC), the UAPA, and the Information Technology (IT) Act, apart from the PMLA. To get bail in a UAPA case, the court should be convinced that the prosecution’s points were not right at the outset. That is why those booked under this law generally do not get bail, Kappan’s counsel Harris Beraan had explained to a news website.

UAPA and its dynamics

Speaking exclusively to The Federal, Supreme Court advocate Wills Mathews said that since UAPA is a special legislation drafted to rein in unlawful activities against the nation, there is always a “presumptive factor.” Since the allegations are seen in terms of a larger agenda against the state, there is always an element of disproportionality against the accused, he explained.

Advocate Mathews was the first to file a habeas corpus petition on behalf of the Kerala Union of Working Journalists (KUWJ) immediately after Kappan’s arrest in UP.

Also read: SC order aside, journalist Siddique Kappan to remain in jail

The advocate added said journalists and some other professionals should be given the benefit of doubt, as their work involves dealing with piles of documents and materials that are references for their work. These references might contain literature that may not be seen as normal for common citizens. Considering the nature of the vocation, some professionals should be allowed to carry out their trade with greater autonomy and diligence.

However, the reputable counsel reiterated the need for such a serious law that is designed to thwart activities against the nation and the state. “I completely favour such a law, but the aspect of speedy justice while dealing with such cases should be paramount,” he added.

The contentious toolkit

Rejecting the UP government’s claim that materials found with Kappan at the time of arrest could be termed “provocative,” the apex court observed that the journalist was trying to propagate an idea that there was a victim (the Hathras rape victim) who needed assistance and justice. Such a support could not be termed as an attempt to incite violence and mobilise people in an unlawful manner.

Senior advocate Mahesh Jethmalani, appearing for the state, contended that the toolkit contained procedures on handling, protesting, and inciting violence. The apex court observed that the pamphlets were related to democratic struggles of people abroad and only drew inspiration from them.

Also read: Conviction rate in cases registered by Centre under UAPA 94.17 pc: MoS Home Rai

The reversed onus

Senior Supreme Court advocate Gopal Shankarnarayan, speaking to The Federal, decoded the special legislations vis-a-vis the other laws in the country. Explaining how bail is a norm and jail an exception under most laws governed under CrPC, he said, “In special legislations (for serious and heinous offences) like PMLA, UAPA, NDPS, and NIA, to name a few, the law itself provides stringent provisions for bail. So, a series of these legislations say that bail will not be granted unless one shows that there is no clear case made out against the accused. The onus is reversed, and the accused has to show that there is no clear case against him.”

According to Article 21 of the Indian Constitution, such a course is not permissible because the presumption of innocence is always in favour of the accused. At the preliminary level, expecting the accused to prove that s/he did not commit the crime, while the investigating body is still gathering information, is a very high standard being set by these special legislations.

Also read: Centre bans PFI and its associates for 5 years under UAPA

How KUWJ kept up the fight

The KUWJ played a key role in Kappan’s fight for justice. The union termed the SC bail order as a “historic intervention” in view of the continuing attacks against the freedom of press and independent journalism. PK Manikandan, a member of the KUWJ, has been one of the prominent voices in the fight for justice for Kappan.