Staying with the Basics: The Bombay High Court on Bail under the UAPA

On 13th August 2021, a two-judge bench of the Bombay High Court (speaking through Shinde and Jamadar JJ) granted bail to one Iqbal Ahmed Kabir Ahmed, who had been charged under various sections of the Unlawful Activities Prevention Act (UAPA), and several other laws. What is significant about this judgment is that it is one of the relatively rare instances of an appellate Court granting bail on merits to an accused in a UAPA case, notwithstanding Section 43(D)(5) of that legislation, and what has been said by the Supreme Court in its infamous Watali judgment. I would suggest that – much like the judgment of the Delhi High Court in Asif Iqbal Tanha – delivered a month before – the judgment of Shinde and Jamadar JJ shows how it remains possible for courts to continue developing a jurisprudence of liberty even within the interstices of S. 43(D)(5) and Watali, should they choose to do so.

As the Court records, there were two main allegations against the accused: that he was part of a criminal conspiracy involving members of the (banned) ISIS terrorist group, and that he had procured material in order to build an explosives device. The Prosecution marshalled evidence to support these claims, including the recovery of an “oath form” pledging allegiance to Abu Bakr al-Bagdadi, an electric switchboard to which the IED device was allegedly soldered, and statements by witnesses about how the accused had taken part in discussions about various atrocities being inflicted upon Islam, and the need to take vengeance for said atrocities. The Prosecution argued that this – taken prima facie, as required by S. 43(D)(5) – was sufficient to establish the commission of offences under the UAPA, as well as membership of a terrorist organisation. The Sessions Judge agreed with these arguments, and rejected bail.

The High Court examined the standard that it would need to apply under S. 43(D)(5) of the UAPA. Relying upon the previous Division Bench judgment in Dhan Singh v Union of India, the prima facie does not relegate the Court to the role of a passive observer, but does require it to “cross-check” the truthfulness of the allegations on the record, and ask whether they are “improbable” or “unbelievable” (paragraph 23). Furthermore, as the three-judge bench of the Supreme Court in Ranjeetsing Brahmajeetsing Sharma v State of Maharashatra (which preceded Watali) had observed, statutory bars to bail, as found under special laws, “should not be pushed too far.” (paragraph 26) Indeed, in that case, the Court put its finger on the issue by noting that if, indeed, the statutory bar under special laws would apply only if a Court was convinced that an accused had not committed an offence, then an order granting bail was tantamount to a judgment of acquittal – something that was definitely not intended by the legislature. Thus, what needed to be seen was whether, on a conspectus of the material on record, the Court was of the view that “in all probability … [the accused] may not be convicted” upon trial. And indeed, as the High Court noted, the standard under the NDPS and MCOCA (which was what was applied in Ranjeetsing Brahmajeetsing Sharma) was actually more stringent than that under the UAPA.

Having set out the legal standard, the Court then applied it to the facts at hand. First, on the witness reports, the Court noted that, taken at their highest, they revealed discussion between the accused and his friends about atrocities upon Islam and taking revenge for said atrocities. Even if the material was admitted to be true, the accused was found to have expressed support for ISIS, which – although repugnant in its own right – did not amount to conspiracy to commit an offence or incite violence. As Mr. Mihir Desai, counsel for the accused pointed out, the Supreme Court had already held in its famous Shreya Singhal judgment that there was a conceptual distinction between discussion, advocacy, and incitement, with only the last being subjected to criminal sanctions consistent with the Constitution. The Court agreed with this argument, noting that “there is considerable substance in the submission of Mr. Desai that the material qua the accused, at the highest, is in the realm of discussions.” (paragraph 32)

Secondly, on the recovery of the oath, the Court found that evidence had not been adduced to show that the accused had signed it. Consequently, taken at the highest, the evidence showed that the accused had been in possession of an oath form. And “mere possession of such oath form,” the Court held, “without subscribing thereto, prima facie, does not appear to be an incriminating circumstance.” (paragraph 33) And thirdly – and most straightforwardly – while the switchboard had been recovered from the accused, there was no recovery that demonstrated – even prima facie – that this switchboard was being deployed to manufacture an explosive device.

The Court then went on to note that at the time of hearing, the accused had been custody for five years, with charges being framed only after four and a half years. Following the judgment in K.A. Najeeb, the Court correctly noted that this was a straightforward violation of fair trial rights, and consequently – in any event – the case for bail was made out (paragraphs 36 – 41)

The merits analysis of the Court repays close study. I would respectfully suggest that – as I had pointed out before in the analysis of the Delhi High Court’s judgment in Asif Iqbal Tanha’s case – there are a set of core principles that, if applied, constitute an appropriate balance between the stringency of S. 43(D)(5) (as it stands), and the constitutional obligation of courts to protect the fundamental rights of all citizens. While the analysis in Tanha’s case was multi-faceted, in this case, there are two primary principles: the first is that given the stringency of the UAPA, and the harshness with which it operates, its definitional clauses ought to be given a strict and narrow meaning. In the present case, Shinde and Jamadar JJ deployed the Shreya Singhal judgment to (correctly) hold that mere discussions would not fall within the substantive clauses of the UAPA – whether the membership clause, or any other. And the second principle is that to make out a prima facie case, 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.” This is evident in the present case from the Court’s refusal to infer a larger conspiracy simply from the recovery of an unsigned oath form or a switchboard, without further, tangible material on record.

Both these principles, I would suggest, are classic principles of criminal jurisprudence. In the context of the UAPA, they are to be deployed at the stage of determining whether the Prosecution material makes out a prima facie case or not, in the first place. It is only after this standard has been met that the bar under 43(D(5) kicks in. And nor are these principles in conflict with anything set out in Watali.

It is therefore submitted that the judgment of the Delhi High Court in Asif Iqbal Tanha (notwithstanding the Supreme Court’s direction that it “not be treated as precedent”) and of the Bombay High Court in Iqbal Ahmed Kabir Ahmed, are important in crafting a jurisprudence that ensures that individual rights are not entirely submerged under the UAPA. They are part of a longer tradition of judgments, going back to the Bombay High Court’s 2013 bail orders in the Kabir Kala Manch cases, that remind us that even under repressive laws, courts still have a vital – and indispensable – role to play as the sentinels on the qui vive – should they choose to do so.

11 thoughts on “Staying with the Basics: The Bombay High Court on Bail under the UAPA

  1. Kudos for a very illuminating analysis of the Bombay High Court’s recent judgment on bail in cases where the charges include Sec 43(D)(5) of UAPA. Under the current trend of Supreme Court judgments, now it does not seem probable that this bail judgment might be restricted as “not to be treated as precedent”. The invoking of Shreya Singhal ratio here also seems to be ingenious application of judicial craftsmanship.

  2. Incisive analysis. Heartening to see that the High Courts are upholding the Constitution and the rights of citizens. Four and a half years for such an inferential and speculative chargesheet! It is prima facie destructive of the constitutional right to a fair and speedy trial.

  3. An amazing blog! It was a very informative read! Keep up the good work.👍
    Incisive analysis. Heartening to see that the High Courts are upholding the Constitution and the rights of citizens.

  4. […] के तहत आरोप लगाए गए थे [“UAPA”]. मेरे में इस ब्लॉग पर निर्णय का विश्लेषणमैंने लिखा था कि – जब आसिफ इकबाल […]

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