PANAJI
Goa-based academic and author Anand Teltumbde, who is among the dozen intellectuals incarcerated for over a year, is the latest accused in the phoney Bhima Koregaon case to challenge the bail provisions of the draconian Unlawful Activities (Prevention) Act (UAPA).
Teltumbde, a senior faculty at Goa's prestigious B-School, Goa Instituted of Management (GIM) has approached the Bombay High Court challenging the UAPA's bail provisions following which the Bench of Justices SS Shinde and NJ Jamadar issued notice to the National Investigation Agency (NIA), the agency investigating and prosecuting the case, and directed it to file its reply in three weeks.
Teltumbde is the second accused in the case after the late Fr Stan Swamy to challenge aspects of the draconian law under which the academicians have been arrested. Fr Stan Swamy died in custody even before the Bombay High Court could go into the meat of his challenge to Section 43D(5) of the UAPA which bars bail to accused if the court finds that the accusations are 'prima facie' true.
Teltumbde's plea goes a step further and challenges the NIA's misuse of the term "banned organisation" to oppose his bail application.
The GIM professor said his bail application was rejected by the Special Court under the NIA Act merely holding that he was a member of a front for a banned organisation, the Communist Party of India (Maoist).
Teltumbde's plea argues that neither the UAPA nor any rules defined what a 'front organisation' was and adds that an organisation could be declared "banned" only after the Central government notified it or added it under the Schedule of the UAPA.
The plea contends that the NIA has misused the definition of the term 'front organisation' in opposing his bail application.
"The NIA affidavits opposing Petitioner's bail merely state that Petitioner is member of certain organisations however the manifest arbitrariness is apparent from the fact that the act itself does not define 'front organisations','" Teltumbde's plea said.
The NIA's submission was that certain organisations which are fronts for banned organisations were also banned. However, this was not a decision of the Central government but by an individual officer of NIA, Teltumbde's plea said.
Teltumbde has further said that Section 43D of the UAPA creates an insurmountable hurdle for any accused to be granted bail. By virtue of the provision, bail is denied to the accused for many years, at times till the end of the trial.
Teltumbde contended that the UAPA did not impose any bar on High Courts from exercising powers under Section 439 of the CrPC to grant bail. However, the wording of the Section takes away the judicial discretion of the Court to even superficially examine the case against the accused.
Finally, Teltumbde's plea says that if bail is denied, the minimum that the court could do is convert his detention into 'judicial custody' which is house arrest.
