A Graveyard for Civil Rights Jurisprudence: The Devangana Kalita Bail Order

On 15th June 2021, the High Court of Delhi passed a detailed set of judgments granting bail to Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha under the Unlawful Activities Prevention Act [“UAPA”], in what have colloquially come to be known as the “Delhi riots cases.” On this blog, I had written at the time that the High Court’s judgments were important because of the close judicial scrutiny they accorded to the abusive provisions of the UAPA, and how they navigated the interstices of the law in order to protect personal liberty [see “Back to the Basics“].

When the case was carried in appeal by the State to the Supreme Court, the Court did something extraordinary and wholly extra-legal: as an interim measure, while it considered the appeal, it passed an order stating that the High Court’s judgment was “not to be treated as precedent.” As I had written at the time, in doing so, the Supreme Court acted wholly without legal authority: when a constitutional court passes a detailed judgment on an issue, the task of the appellate forum is to review it for correctness, and to either set aside or uphold it; nothing in the Constitution gives the appellate forum the authority to create a legal fiction which simply effaces the judgment – and to force all other courts to participate in this fiction.

In today’s final order in this case – passed almost two years after the fact, and without substantive hearings – the Supreme Court regrettably entrenches this abuse of power, and makes it permanent (see here). But if the Court’s actions are unsustainable, its justification for them is even more so. The Court notes:

The impugned order is an extremely elaborate order of bail interpreting various provisions of the UAPA Act. In our view the only issue which is required to be examined in such matters is whether in the factual scenario an accused is entitled to bail or not.

As has been explained multiple times on this blog – because this is not the first time the Supreme Court has done this to a High Court UAPA bail judgment – this reasoning is utterly fallacious. The structure of the UAPA requires a Court to substantively interpret its provisions in a bail case. At the cost of repetition, this is because section 43(D)(5) of the UAPA places a statutory bar upon courts from granting merits bail if – on a perusal of the case diary – the court is of the view that there are “reasonable grounds for believing that the accusation against such person is prima facie true.”

On what basis will a court decide whether or not there are reasonable grounds for believing that the accusation is prima facie true? It will (a) look at the police version (“the facts”); (b) look at the substantive provisions of the UAPA (“the law”); (c) ask if the “facts” fit within the scope of the “law”. If they do, a prima facie case is made out, and the 43(D)(5) bar applies. If not, then bail is to be granted. Now, can the court take steps (b) and (c) of this process without substantively interpreting the UAPA? Obviously, it cannot. There is no conceivable way a court can decide whether or not an “accusation” (i.e., the claim that a person X violated the law) is prima facie true or not without deciding what the law says.

Indeed, this was exactly what the High Court had done. Once again, at the cost of repetition, the High Court had noted that the accusations against the parties were accusations of terrorism. It had then interpreted the legal provisions of the UAPA dealing with the concept of terrorism. And it had found that even if you took the police’s version of the facts as true, the offence of terrorism would not be made out, and that consequently, the statutory bar on bail did not apply. How could the court possibly have restricted itself to “just the factual scenario” at the Supreme Court wanted it to do?

The Supreme Court’s exhortation to the High Court – and the basis for its extra-legal order – thus fails the most elementary test of logic. One wonders whether justices with such vast experience at the bar and the bench simply cannot see something this basic – or whether they do not want to see it. Indeed, going down the order, it appears to be the latter. Because the Court notes:

The idea was to protect the State against use of the judgment on enunciation of law qua interpretation of the provisions of the UAPA Act in a bail matter.

Consider this: the Supreme Court – in its self-proclaimed role as the “sentinel on the qui vive” – is concerned not with protecting individual liberty against the State, but with protecting the State against individuals seeking liberty. This is a world turned upside down, a distorted reflection in a cracked mirror, a bizarre inversion of what the task of a Court should be. And when put alongside yesterday’s order on default bail, it appears that the Supreme Court is rapidly becoming a graveyard for civil rights jurisprudence.