[Update: At the time of writing, the Supreme Court has, in appeal, directed that the Delhi High Court’s order discussed below “not be treated as a precedent or relied on by the parties.” The effect of this is that while the grant of bail is not (yet) cancelled, the High Court’s judgment itself has been suspended out of existence.
While this phrase – “not to be treated as a precedent” – has become a standard feature in Indian jurisprudence, it is worth repeating – without mincing words – that this is entirely outside the law. When a constitutional court (and the High Courts are constitutional courts) delivers a reasoned judgment on an issue, the task of an appellate court is limited to determining whether that judgment correctly interpreted the law, or did so wrongly. Until reversed, the judgment of a court has the force of law. It is therefore not within the authority of the Supreme Court to act as if the judgment of another constitutional court simply does not exist, or was never delivered – and worse, to deliver an unreasoned command that all other courts also participate in this fiction.
It is also important to note the impact of this order: it means that while the three individuals will not be sent back to jail (until whatever time that the Supreme Court takes a final view on the correctness of the High Court’s judgment), what it does mean is that trial courts (and other benches of the High Court) are barred by fiat from expressly citing the Delhi High Court’s judgment where anyone else’s civil rights are concerned. The judgment itself, meanwhile, exists like a phantom limb – not really there, but still there somewhere. This is wholly destructive of the rule of law.]
On 15th June 2021, a two-judge bench of the Delhi High Court (Mridul and Bhambani JJ) passed three orders granting bail to Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal in the cases relating to riots in Delhi in February 2020 [“the Delhi riots cases”]. Along with many others, the three had been accused of participating in a conspiracy to cause violence in the wake of the anti-CAA protests, charge-sheeted under the Unlawful Activities Prevention Act [“UAPA”], and – at the time of writing – had spent over one year in jail without trial. Bail applications before the trial court had been rejected.
The High Court’s orders are significant, as it is the first instance of regular bail – i.e., bail on merits – being granted to individuals who have been charge-sheeted under the UAPA in the Delhi riots cases. What is of even greater significance, however, is the Court’s reasoning. The bail orders reiterate a simple fact that has, over the years, been repeatedly obscured: that the exceptionally stringent provisions of the UAPA (which make the granting of bail extremely difficult) are meant to apply only to exceptional cases, and not as substitutes for ordinary penal law. This distinction between the state of exception and the state of normalcy has been blurred by laws such as the UAPA, whose broad and vaguely-worded provisions allow State agencies to invoke and apply them indiscriminately, and thus keep people behind bars for years without trial. The Court’s orders today go some way towards restoring that essential distinction (for a background, see these pieces by Abhinav Sekhri, here and here).
As another preliminary point, in order to understand the High Court’s bail orders, it is important to recall the Supreme Court judgment in the Watali case. As we know, Section 43(D)(5) of the UAPA bars the grant of bail if, on a perusal of the case diary, and in the opinion of the Court, there “are reasonable grounds for believing that the accusation against such person is prima facie true.” In essence, therefore, the UAPA limits the Court to looking at the prosecution version, and precludes bail if the prosecution’s version – without having passed through cross-examination or challenge – appears true on the face of it. In Watali, the Supreme Court further held that it was not permissible for even the Court to engage in a detailed analysis of the prosecution’s case while considering bail under the UAPA, and to consider whether the evidence presented by the prosecution appeared sufficient or not. Thus, while the UAPA ties one hand of the defence behind its back (by letting only one side’s version be determinative for the question of bail), the Watali judgment tied the other hand as well, by effectively prohibiting any substantive challenge to that version. The effect of this is to make the grant of bail almost impossible until the end of the trial (which could take years) – a wholly unconstitutional interpretation of the UAPA, to say the least.
Almost, however, is not entirely. Notwithstanding Watali, there remains space for Courts to engage with abusive prosecution cases, and (righty) grant bail nonetheless. One example of this is the pre-Watali Bombay High Court judgments in the Kabir Kala Manch cases, where the constitutional guarantees of free speech and freedom of association were invoked to read down the term “membership” (of an unlawful organisation) under the UAPA to “active membership”, i.e., to the incitement of violence. In those cases, the prosecution case – taken entirely on its own terms, and as presumptively true – did not claim that the accused had been fomenting violence (at the highest, they were accused of participating in some meetings, and some literature had been recovered from them). Consequently, even on its own terms, a “prima facie” case under the UAPA had not been made out, and consequently, Section 43(D)(5) did not apply.
Today’s Delhi High Court orders belong to the same judicial line of reasoning as the Kabir Kala Manch cases: i.e., extending a close scrutiny to the terms of the UAPA, and how a responsible judiciary, committed to the protection of fundamental rights, ought to interpret them. At the heart of the lead judgment/order [Asif Iqbal Tanha v State of NCT of Delhi] is the basic insight that the gravamen of offences under the UAPA is “terrorism”, and the word “terrorism” has to be given a specific meaning – in light of the context and history of the Act – that distinguishes it from offences that are dealt with under ordinary law (paragraphs 28 – 39). This is particularly important, as the Court notes – correctly – that a “sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed” (paragraph 40). Based on these interpretive principles – and prior Supreme Court precedent – the Court goes on to hold:
… the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law. (para 49)
The Court buttresses this by noting that the UAPA is a central legislation, and therefore must fall within one of the fields of legislation that the centre is competent to legislate on, under Schedule VII. The appropriate head under List I of the Seventh Schedule – according to the Court – is the “defence of India” (as opposed to “public order”, which is a state subject) (paragraph 57). This – the Court observes – also demonstrates the exceptional nature of the UAPA: “it was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA.” (para 57)
Coming to the question of application, the Court then notes that taking the Prosecution case (as set out in its 17000-page charge-sheet) as true, there were no specific accusations against the accused other than that he handed over a SIM card to a co-accused; there was no recovery of weapons or any accusation that the accused was leading the conspirators who actually engaged in violence. In response, the State repeatedly tried to argue that the anti-CAA protest was an “aggravated” protest that was likely to threaten the “foundations” of the nation. The Court’s response to this is striking in its simplicity: it once again notes that none of this is based on any factual assertion, but rather “based upon inferences drawn by the prosecuting agency.” The anti-CAA protest itself was at no point banned or outlawed – and just like Watali prohibits courts from delving into the “merits or demerits” of evidence at the state of bail, logically, so must it preclude taking into consideration “inferences and conclusions”, in the absence of “accusations made against the appellant [that] prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.” [para 58]
This reasoning is extremely important: a scrutiny of the Delhi Riots cases indicate that (i) the actual evidence against the accused is related to organising protests and chakka jam; (ii) violence occurred, but there is no evidence linking the accused to the violence; (iii) the gap in the middle is filled by the State alleging conspiracy and the “likelihood” of causing violence under the UAPA. It is this gap that the Court correctly identifies, and the notes that mere inferences are not sufficient to complete the chain of causation and establish a prima facie case under the UAPA, which could then be used to deny bail to the accused for years.
Having thus established that a prima facie case of terrorism under the UAPA has not been made out, the Court – correctly – considers the general principles regarding bail. Applying those general principles – and in view of the fact that the charge-sheet has 740 witnesses, with no prospect of the trial beginning any time soon (here the Court draws upon the Supreme Court judgment in Najeeb, which also held that S. 43(D)(5) is not inflexible, and does not override constitutional rights such as the right to a fair and speedy trial) – the Court holds that a case for bail has been made out.
The accompanying two orders – in Devangana Kalita and Natasha Narwal’s cases – are based on similar reasoning. In the Devangana Kalita order, the High Court makes the crucial observation that:
The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA. (para 47)
This is extremely important, because it goes back to the initial point of this blog post, which is the distinction between states of exception and states of normalcy. The High Court notes here that there are indeed occasions where initially peaceful protests can spill over into the zone of illegality; in such a case, however, whatever illegalities may have been committed are to be dealt with under ordinary law, because there still remains a gap between illegal protests and terrorism. To make out a case of terrorism under the UAPA, “individual, factual, and particularised” allegations are needed, and that gap cannot be filled – to repeat – by inferences and insinuations.
Similarly in the Natasha Narwal order, the Court observes:
Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA. (para 35)
The Court buttresses this point by noting – in all three judgments – that the right to peaceful protest is a fundamental rights under the Constitution. Consequently, insofar as the allegations themselves pertain to the organisation of protests (regardless of the merits of the cause), they cannot be a ground for UAPA offences – including situations where protests – as indicated above – cross the line into illegality. In those situations, ordinary law may be used in response to acts of illegality, but not – in the absence of specific allegations – stringent anti-terror statutes such as the UAPA.
In sum, therefore, the following.- indisputable – principles emerge from the High Court’s three orders:
- The UAPA is a special statute, designed to deal with a state of exception, and its operation should not be blurred with ordinary legislation.
- Criminal statutes must always be narrowly construed, and their terms given due specificity.
- A combination of (1) and (2) implies that the word “terrorism” in the UAPA must be given specific meaning that relates to the defence of India, and is distinguishable from public order offences.
- In order to establish a prima facie case of terrorism under the UAPA against an accused, the allegations must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.
- As long as that gap exists, the prima facie case under the UAPA – and the prosecution’s prima facie burden – remains undischarged, and normal principles of bail (not S. 43(D)(5) will apply.
- This is specifically important when the allegations pertain to organising – and participating in – protests, which are guaranteed rights under the Constitution. The Court will be specially vigilant to prevent the use of UAPA-type statutes to blur the lines between protests, illegalities committed during protests, and terrorism.
These principles, it is submitted with respect, constitute an ideal template for courts to approach the issue of bail and personal liberty under special statutes such as the UAPA. If applied consistently, they can form the basis of a jurisprudence that respects civil rights, even within the restrictive confines of the UAPA.