No Grounds to Accuse, Supreme Court Says Granting Bail to Activist Shoma Sen

Court: The Case Showed No Attempt to Commit Any Terrorist Act

Newsreel Asia Insight #186
April 9, 2024

The Supreme Court has granted bail to Shoma Kanti Sen, a former Nagpur University professor who was arrested nearly six years ago under the Unlawful Activities Prevention Act (UAPA). Her case highlights significant concerns regarding the application of the UAPA, which is designed to combat terrorism and unlawful activities but has been criticised for its stringent provisions allowing for prolonged detention of individuals without trial.

The case of Sen, who was arrested in June 2018 for alleged links with the banned Communist Party of India (Maoist), raises questions about the balance between national security and individual rights. As per a report by Live Law, “The Court observed that the materials collected by the NIA only reveal her attempt to encourage women to join the struggle for a ‘new democratic revolution’ and showed no attempt to commit any ‘terrorist act.’”

The Bhima Koregaon case originated from the events of Jan. 1, 2018, at Bhima Koregaon, a village in Maharashtra. Every year, Dalits gather at Bhima Koregaon to commemorate the victory of the British army, which included a large contingent of Dalit soldiers, over the Peshwa (upper-caste rulers) in 1818. The 2018 event marked the 200th anniversary of this battle and attracted thousands of Dalits. However, the gathering turned violent, leading to clashes, resulting in one death and several injuries.

Following the violence, the Maharashtra Police launched investigations. They alleged that the violence was incited by speeches made at the Elgar Parishad conclave held in Pune on Dec. 31, 2017, claiming the event had Maoist links. The police arrested several activists and intellectuals, accusing them of having Maoist ties and plotting to overthrow the government. Critics argue that the arrests under the UAPA were politically motivated and an attempt to suppress dissent.

The UAPA grants broad powers to law enforcement agencies to detain individuals suspected of terrorist activities without filing charges for extended periods, impacting the right to a fair trial. In Sen’s case, the delay in framing charges despite the claim of the National Investigation Agency (NIA) that there is strong evidence against her and her extended custody highlight this issue.

Under the UAPA, the burden of proof is somewhat reversed when it comes to bail. Typically, in criminal law, the presumption is in favour of granting bail, as the accused is presumed innocent until proven guilty. However, under the UAPA, this presumption is weaker. The court must be convinced that the allegations against the accused have some substance before considering bail, which makes it significantly harder for the accused to secure release pending trial.

This provision aims to prevent individuals who may pose a serious threat to national security from being released and potentially continuing their harmful activities. However, it also means that individuals accused under the UAPA can spend long periods in custody before their trial even begins, which raises concerns about their right to a fair and speedy trial.

Critics argue that the UAPA allows for the possibility of abuse of power by authorities, leading to potential violations of human rights. The Act’s provisions for detention without trial can be seen as undermining the principles of justice and fairness. In Sen’s situation, her prolonged detention before the commencement of the trial underscores the criticisms related to the denial of the right to a speedy trial and the presumption of innocence.

The Supreme Court’s decision to grant bail to Sen, citing her medical condition, advanced age and the delay in framing charges, reflects a judicial acknowledgment of the need to balance security concerns with individual rights. The conditions imposed on her release, such as surrendering her passport and ensuring constant surveillance, indicate the court’s attempt to mitigate potential risks while addressing the prolonged detention issue. 

The case also touches on the constitutional right to life and personal liberty under Article 21 of the Indian Constitution. This means the law should protect an individual’s freedom and ensure fair treatment. The argument for Sen’s bail on medical grounds underscores the importance of considering the health and well-being of detainees, especially in cases of prolonged custody without trial.

The judiciary’s role is crucial in ensuring that the law’s application does not unjustifiably infringe on personal liberties and that the legal processes remain just and equitable.