Insurmountable hurdle: Stan Swamy had moved court against a stringent UAPA section 2 days before death

The law violated an individual's fundamental right to life and liberty that is guaranteed by the Constitution, he said

Two days before his death under state custody, tribal activist Stan Swamy — termed as accused in the Elgar Parishad case — had challenged a provision of the Unlawful Activities (Prevention) Act (UAPA), terming it as an insurmountable hurdle for the individual accused of the same.

Swamy's lawyer Mihir Desai had on July 3 told the Bombay High Court that Section 43D(5) of the UAPA was violative of an individual's fundamental right to life and liberty as guaranteed by the Constitution.

The section, Desai said, creates an "insurmountable hurdle" for anyone seeking bail and as a result, violated an individual's fundamental right to life and liberty that is guaranteed by the Constitution.

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While the prevalent practice under the criminal justice system is to presume an accused person's innocence unless charges against him or her are proven by the prosecution, Section 43D(5) of the UAPA "inverts on its head, the principle of presumption of innocence," according to Swamy's lawyer.

Section 43D (5) of the UAPA mandates that if a court has reasonable grounds to believe that the accusation against someone charges under the Act is prima facie true, then the accused shall not be released on bail.

Stan Swamy breathed his last after suffering a cardiac arrest on Monday afternoon at the Holy Family Hospital in Mumbai.

(With agency inputs)