The Delhi High Court has issued notice to the Central and the Delhi government in a plea seeking release of person charged under Unlawful Activities Prevention Act unable to get bail due to non-functioning of special courts.
The writ of habeas corpus was moved in the court a few days ago by the brother of the accused. His sister was arrested by Jafrabad police on April 9 for being involved in anti-Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) protests. The family was not provided the copy of the FIR at first and when the same was received, they approached the Magistrate for bail who refused to grant the same as the FIR contained charges under UAPA. Further when the Sessions Court was approached, the accused, a 25 year old MBA student, was given bail on the first FIR and not the second one since it contained charges under UAPA. Which means that she has been granted regular bail but due to the non functioning of special courts requisite under UAPA, she does not even have the opportunity presently to follow due process and apply for bail.
Under the UAPA, only a special court constituted and empowered under the National Investigation Agency Act can extend the custody of the accused. Due to COVID19 and the lockdown, normal court functioning has been suspended and hence, the petitioner claims that the continued custody of the accused is illegal and without authority.
The UAPA is termed by many as an extremely draconian law which gives unbridled power to the state to designate any individual as a “terrorist” without following any new procedure and by providing the accused no effective means of redress.
The division bench of Justices Vipin Sanghi and Rajnish Bhatnagar of Delhi High Court issued notices to both central and state government and has scheduled a detailed hearing on May 29. The petitioner seeks writ of habeas corpus against Delhi government and Delhi police to produce the accused before the court and explain why she should not be released on bail or explain how her continued detention is not illegal.
The petition states that as the courts sitting during the suspended functioning of the courts are not empowered to extend the custody of persons charged under the UAPA, the detention of the accused is without the authority of law. Further it states, illegal detention without authority of law is squarely in violation of Article 21 of the Constitution of India which prevents the state from depriving a person of their life and liberty without due process of law.
This is just another example of how the continual limited functioning of courts has denied people access to justice, specially in cases where the charges levied are of extremely serious nature and need to be considered by the respective courts. Naturally, since special courts are not functioning, there is no access to due process of law which could be followed otherwise and hence the continued detention, without access to justice may be termed as illegal detention.
Related:
SC: Four more petitions filed against CAA, notices issued
Battle against dilution of labour laws to culminate in Supreme Court?