Stenographer for the Prosecution: The Bail Order in Umar Khalid’s Case

In the last few months, there has been something of an internal tug-of-war within the judiciary on the question of bail under the Unlawful Activities Prevention Act [“UAPA”]. As we have seen, the Delhi and Bombay High Courts have pushed back against the notion that in a UAPA case, the judiciary’s role is to act as a stenographer for the Prosecution, mechanically reproduce the allegations in the chargesheet, and keep people in jail until the ten or fifteen years that it takes to complete a trial. These Courts have pointed out that, given how strict the UAPA’s threshold requirement is for granting bail, it behooves the judge to subject the Prosecution’s case (which is the only case that exists at the time of bail) to an equally strict scrutiny: both on the necessity of factual evidence being concrete and specific, and on the question of whether the legal standard under the UAPA is made out. On the other side, we have the Supreme Court’s judgment in the notorious Watali case, as well as some trial court judgments (e.g., in Safoora Zargar’s case), where the attitude has been that Courts should adopt a feather-light touch towards the prosecution case when considering bail, and not look too closely or too deep at that the State has placed before them. If the result is that people stay in jail for upwards of a decade waiting for trial, then that is just the way it is.

The order passed today by the Addl. Sessions Judge at Karkardooma Courts in Delhi, denying bail to Umar Khalid in the Delhi riots case, is significant because it represents that extreme version of the second approach. As is well-known by now, the core argument of the Prosecution in these cases is that the Delhi riots were the culmination of a well-planned conspiracy, which were “masterminded” by a group of people, including Umar Khalid, under the guise of protesting against the CAA/NRC. In Khalid’s case – as a reading of the bail order makes pretty clear – there were several hurdles before the Prosecution, to wit that: (a) Khalid had given no public call to incitement to violence – in fact, quite the contrary; (b) there was no material on record showing Khalid’s participation in funding or transporting arms, and no recoveries from him; (c) when the riots took place, Khalid was not even in Delhi. This being the position, the Prosecution’s case was strung together by a set of witness statements to the effect that “X saw Khalid along with Z”, “A heard Khalid say G”, and – in some cases – “B heard Y say that Khalid said C” (it is important to note that the last of these statements legally could not be considered by the Court at trial, because it ie hearsay).

In this context, the bail order takes the following structure: first, the Court records what the Prosecution witness stated (in most cases, this witness is anonymous, carrying names such as “ROMEO” and “JULIET”); secondly, it records the defence counsel’s argument that – for certain well-founded reasons, the statement is ex facie unreliable (e.g., it was recorded substantially after the fact, or is contradictory to another statement, or has already been disbelieved in separate proceedings); thirdly, it says that the defence counsel’s objections can only be considered during the trial, and are therefore discounted. Fourthly, and ergo, the witness statement is to be accepted as entirely true (no matter how implausible, contradictory, or vague in particulars it might be).

This is basically the entirety of the bail order. In paragraph 10, the Court records witness Tahira Daud’s statement that Umar Khalid expressed support for Sharjeel Imam’s call for a chakka jam in a meeting in a Jangpura office on a certain date; it then records protected witness “Bond’s” statement that Umar Khalid called for overthrowing the government when “the time is right”, and for a chakka jam; it then records Bond’s statement that at a certain meeting two other people said that Umar Khalid had told them to use women and children as shields at the protests; in paragraph 10.4, the Court refers to witness “Bravo’s” statement about Khalid’s presence at a meeting at the Indian Social Institute; then to a statement by witness “Saturn” about a meeting between Umar Khalid, Khalid Saifi, and Tahir Hussain at Shaheen Bagh; then, in paragraph 10.5, to statements by witnesses “Smith”, “Echo”, and “Sierra” about a “conspiratorial meeting” at Jafrabad between Umar Khalid, Pinjra Tod, and others. In fact, paragraph 10.5 is particularly instructive, as it is quite representative of the bail order, and deserves to be set out in full:

A conspiratorial meeting took place in the intervening night of 23/24.01.2020 at Seelampur, Jafrabad Protest site between Umar Khalid with Pinjra Tod members and others. It was decided to induce local women of Seelampur to start stock piling knives, bottles, acids, stones, chillypowder and other dangerous articles to be used in rioting as part of a conspiracy. The plan was to escalate the protest to the next level of chakkajam and then riots. This is confirmed by statement of protected witness Smith, Echo and Sierra. (Again, Ld. Senior Advocate referred to some minor inconsistencies which the witness will be required to explain during trial, but there are incriminating material against the accused in the statement of the said witnesses).

On a reading of this paragraph, the following stands out. First, vagueness of particulars: it is unclear who “the others” were or who the “members” of Pinjra Tod were, and there is no material detail at all about what specifically was said, and what made the meeting “conspiratorial”. This is particularly important, because even if you were to discount the points that follow, and subject the statements to a no-touch scrutiny, the vagueness makes these statements incapable of supporting a concrete and specific charge under the UAPA; but in any event, and secondly, there is not even light-touch, but zero scrutiny of the witness statements on their own terms; and thirdly, there is no engagement, but summary dismissal of the defence’s attack on the witness statements – again, on their own terms – with the observation that this is a matter for trial. It is important to ask oneself if a system rhetorically committed to the “rule of law” ought to be countenancing jailing people for years without trial on such quality of reasoning.

In paragraph 10.7, the order refers to statements by “Helium” and “Crypton” about Umar Khalid telling Bangladeshis to fight against the CAA (again, even if true and taken at the highest, not a UAPA offence); in paragraph 10.11, there is perhaps the only reference to a public speech by Umar Khalid, in which he “refers” to the visit of then-President Donald Trump (what, specifically, Khalid said about Trump is not discussed). The Court then refers to various protected witness statements about certain other individuals – not Umar Khalid – allegedly preparing for riots; at this point, it is unclear how this serves as proof of conspiracy against Khalid; later on, however, the Court uses Khalid’s membership of a WhatsApp group – the DPSG – to establish his “links” with the conspirators. In paragraph 10.14, hearsay evidence returns: witness “Bond” records that he was told by someone else called Asif that he, Asif, had received instructions from Umar Khalid and Nadeem to start riots; the Court then records some other witness statements that do not feature Khalid, but uses that to conclude that the riots were, indeed, pre-planned, and not spontaneous. In paragraph 10.23, the Court refers to a “flurry” of calls that took place between a number of people after the riots started, including Umar Khalid. We do not know the content of these calls, so it is unclear what role they play in the Court’s analysis. The Court notes that “the calls still show how different accused persons are linked and talking to each other after the riots have begun and more importantly, most of the accused persons involved reached a common place.” Yet again, however, there is no explanation forthcoming of what this linking actually shows: indeed, this is a fourth common theme running through the bail order. Both when it comes to the WhatsApp group and to the phone calls, in the absence of any specific evidence, the Court falls back on what appears to be a guilt by association argument (somewhat ironic, as none of the accused have actually been convicted yet): that Khalid’s role in the conspiracy is made out through these “links”, even though there is no evidence about what the specific nature of these links was.

In paragraph 12 onwards, the Court refers to some more protected witness statements, which – again – stand out in their vagueness. In paragraph 12.3, witness “Gama’s” statement that Umar Khalid gave “provocative statements” is recorded (what were these statements? Whom – and how – did they provoke?); in paragraph 12.4, witness “Delta” states that Umar Khalid gave “a speech against the government” (…and?); in paragraph 12.5, witness “Saturn” states that “Tahir Hussain also went to Shaheen Bagh on 08.01.2020 where Umar Khalid and Kahid Saifi were also present” (… and?); in paragraph 12.6, witness “Helium” states that Umar Khalid talked about educating Bangladeshis to fight against the CAA (… and?); in paragraph 12.7, protected witness “Beeta” (sic) states that he saw a video of Umar Khalid giving a speech about coming out onto the roads for Trump’s visit (…and?); this goes on in the same mould, with similar anonymous witness statements – vague and free of material particulars – recording, for example, Umar Khalid telling a third party about spilling blood.

This detailing is undoubtedly tedious; but it is important to set it out, because it helps to contextualise the Court’s legal finding about Umar Khalid’s “role” in the riots, which occurs at paragraph 12.1 and 14:

In terms of the chargesheet, as discussed above, it is noticed that the name of accused Umar Khalid finds a recurring mention from the beginning of the conspiracy till the riots. He was a member of Whatsapp group of Muslim Students of JNU. He participated in various meetings on 07.12.2019, 08.12.2019, 13.12.2019, 26.12.2019, 08.01.2020, 23/24.01.2020, 10.02.2020. He is also a member of the DPSG group and attended meeting at Indian Social Institute (ISI) on 26.12.2019. He gave reference to Mr. Donald Trump, President of USA in his Amrawati speech on 17.02.2020. He was also mentioned in the flurry of calls that happened post riots, as mentioned above. He was instrumental in creation of JCC.

Ld. Senior Advocate for the accused had correctly argued that accused Umar Khalid was part of the Whatsapp group MSJ and DPSG but he has not written many messages in those groups and they are not overtly provocative or incriminatory. However, the fact that he was part of such groups created for specific objects and his acts or presence throughout the period beginning from the passing of the CAB Bill in December 2019 till the February 2020 riots, as mentioned above, has to be read in totality and not piecemeal. He has connectivity with many accused persons.

The case against Khalid, therefore is based on: (a) membership of WhatsApp groups; (b) participation in various meetings, the particulars of which are provided by anonymous witnesses, for the most part in vague terms; and (c) being mentioned in a “flurry of calls” after the riots began.

Out of these three legs, the first and third wouldn’t be enough – as they say colloquially – “to hang a dog on.” Of the second leg, as pointed out above, every statement, in all its glorious vagueness, is accepted by the Court without any further analysis; indeed, as we have seen above, many of these statements – even taken on their own terms – are allegations of Khalid engaging in constitutionally protected, legitimate speech; when you take those away, what you are left with is essentially four or five anonymous witness statements claiming that Khalid said X or Y incendiary or violent thing. Now, the Court engages in no analysis about whether these statements – even if taken as absolutely true – would constitute a UAPA offence; instead, it undertakes an exercise of filling in the gaps in the Prosecution’s case, by pulling together these statements, “membership” of WhatsApp groups, and “connectivity” with accused persons, throwing them together, and claiming – without reference to the legal standards – that the bar under UAPA has been attracted.

Thus, on a close reading of the sixty-one page long bail order, the denial of bail to Umar Khalid is based entirely upon an act of judicial stenography: the Court reproduces the statements in the chargesheet, refuses to examine them on their own terms, refuses to engage with the defence’s examination of them, and finally – and most importantly – fills in inferences of guilt where the prosecution’s case is vague or missing particulars. It is crucial to note that UAPA precedent does not require the Court to act as the prosecution’s stenographer in bail cases: not even the Watali judgment goes that far, and – as we have seen – there are, by now, numerous High Court judgments (which the Court fails to engage with) that articulate the basic common sense that a UAPA case does not require a judge act as if they have undergone lobotomy just before writing the judgment.

The implications of this are both obvious and frightening. The bail order takes us to a position where the Prosecution can write literally anything in its UAPA chargesheet – vague, inconsistent, implausible, ex facie false, things that you would laugh at if someone presented them to you and tried to make your believe them – and we will have a bail order that will reproduce those statements, park all objections for a trial that will not finish for the next ten years, and ensure that people remain in jail all that time. This is the embodiment of a broken criminal justice system – broken not just by the UAPA and its language, but broken by judges who, somewhere in all this, seem to have forgotten the judicial role as being one that tempers and confronts State abuse.

It now remains to be seen whether that internal tug-of-war that I mentioned at the beginning of the post will see a course-correction when this – or other cases – go up on appeal; or whether we will only see the continued descent of the judiciary from sentinel on the qui vive to stenographer for the Prosecution.

Swimming With Your Arms Tied Behind Your Back: The Supreme Court’s UAPA Bail Order in Iqbal Ahmed’s Case

On 13th August 2021, a division bench of the Bombay High Court had granted bail to one Iqbal Ahmed, who had been charged under various sections of the Unlawful Activities Prevention Act [“UAPA”]. In my analysis of the judgment on this blog, I had written that – when read alongside the Delhi High Court’s judgment in Asif Iqbal Tanha (see here) – the bail order in Iqbal Ahmed was an important instance of how the Bombay and Delhi High Courts were beginning to develop a jurisprudence of liberty, even within the highly restrictive confines of the UAPA.

The bail order was appealed to the Supreme Court. In a brief order passed on 11th February 2022, a two-judge bench comprising of Chandrachud and Surya Kant JJ declined to interfere with the grant of bail. However, the two judge bench also passed the following observation, in paragraph 2:

In the facts and circumstances of the present case, we are not inclined to disturb the order of the High Court. However, we clarify that the observations contained in the impugned order are confined to the disposal of the application for bail arising out of the judgment of the Special Judge on the question of bail. Moreover, it was unnecessary for the High Court to advert to the decision in Shreya Singhal v Union of India and the judgment of the High Court can be sustained even independent of the said observations. (Emphasis mine)

There are two points I want to make with respect to this paragraph, which – in my view – highlight starkly the internal tensions that have come to characterise bail jurisprudence under the UAPA. The first is the part where the Court “clarifies” that the observations in the High Court’s bail order “are confined to the disposal of the application of bail.” Now, this would be entirely unexceptionable were this an order of bail under regular criminal law. However, where a Court has granted bail on merits in a UAPA case, this cannot be so. The reason for this is explained at some length by Abhinav Sekhri, in this piece and in this piece. As Sekhri points out, “the UAPA dramatically flips the regular law of bail on its head. Here, courts are required by the statute to primarily focus upon the merits of the case to determine whether or not bail should be granted.” The reason for this is that s. 43(D)(5) statutorily bars the grant of bail the moment the Prosecution can show that a prima facie case exists against the accused. Or, in reversal, a merits bail under the UAPA can happen only if the Court finds that there is not even a prima facie case against the accused, on the basis of the evidence provided. For this reason, it simply does not make logical sense for the Supreme Court to say that the “observations … [in the High Court order] are confined to … the question of bail”: the UAPA mandated the High Court to issue findings about the case that went beyond the “question of bail”, because without addressing those questions, it could not have granted bail on merits to start with (it’s a different matter that it could still have granted bail on the separate and independent procedural ground of delay, as per the Supreme Court’s K.A. Najeeb judgment).

The other reason why this observation is unjustified is simply on grounds of fairness and parity. As Abhinav Sekhri has pointed out in the articles linked to above, the UAPA almost entirely stacks the decks against an accused. Going into a UAPA bail hearing, accused’s counsel have to argue as if they were participating in a swimming competition with both arms tied behind their backs: they cannot deploy any part of the arsenal open to the defence team in a regular criminal trial, and they are only permitted to try and point out internal contradictions within the Prosecution’s case, or show how even when you assume the Prosecution’s case to be true, it does not meet the UAPA threshold. The Supreme Court judgment in Watali effectively tied a dumbbell to the defence’s legs in addition to its arms being tied behind its back, when it further restricted what materials the Court could consider in a UAPA bail hearing.

This being the case, on the rare occasion when the defence does succeed in merits bail under the UAPA (in the manner indicated above), basic principles of fairness and equality of arms suggest that it ought to be entitled to the full benefits of that bail judgment – which, in this case, for the reasons advanced above, necessarily include certain judicial findings on the substantive quality of the prosecution’s case. It is crucial to note that the only reason why this is happening is because of how the UAPA itself front-loads bail hearings entirely in the prosecution’s favour. In this context, the Supreme Court’s observations in paragraph 2 basically amounts to a situation where the swimmer with both arms tied behind their back and dumbbells tied to their legs nevertheless wins the swimming competition, and is then told that their win doesn’t count because ropes and dumbbells are not supposed to be brought into the pool.

The second point I want to comment on is the Court’s observation that it was “unnecessary” for the High Court to refer to the Shreya Singhal judgment. This observation bears some resemblance to oral arguments before a different bench of the Supreme Court when Asif Iqbal Tanha’s bail order was appealed by the State: in that case, the Supreme Court expressed surprise that the High Court had spent a hundred pages discussing various judgments in a bail order. It then went on to hold that the bail order was “not to be treated as a precedent or relied on by the parties” (something that, as may people have pointed out, was beyond the scope of its jurisdiction). The present order does not do that, but the observation in question betrays the same problem. As has been pointed out before, because s. 43(D)(5) of the UAPA statutorily bars the grant of bail where there is a prima facie case against the accused, in a merits bail application, there are two ways a Court can go: (a) hold that the Prosecution’s case, even when taken at the highest, with all allegations presumed to be true, does not meet the legal threshold that the offences under the UAPA require to be met; or (b) there are gaps in the Prosecution’s case, and the link between the facts as alleged, and the offences under the UAPA, have not been filled except by surmises or inferences. Now the point as that for (a), the Court must, by the very nature of the analysis, embark upon a detailed legal examination of what the UAPA offence actually requires. This was what the Delhi High Court did in Asif Iqbal Tanha. And this was exactly why the Bombay High Court invoked Shreya Singhal’s Case in this order. As I wrote in my analysis of this order:

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.

It should therefore be clear that not only was it correct for the Bombay High Court to have invoked Shreya Singhal, but indeed, it could not have been any other way. Recall, once again, that this was a case of bail on merits under the UAPA; the Bombay High Court did not grant bail solely on the K.A. Najeeb ground of excessive delay in trials. It is for this reason that paragraph 2 in the Supreme Court’s bail order is problematic: because both sets of observations – if they are taken to their logical conclusion – would make merits bail under the UAPA not only very difficult (which it is now), but a virtual impossibility.

By way of conclusion, it is important to note that short orders of this kind – dismissing Special Leave Petitions – are invariably delivered after very brief hearings, without the bench having had the benefit of hearing proper arguments on either side. Thus, it is to be hoped that when the question of merits bail and 43(D)(5) comes up before the Supreme Court again – as it inevitably will – these internal contradictions of the UAPA will be considered in greater and more substantive detail.

Imprisonment by Quotation: On the Sharjeel Imam Bail Order

The law on speech, violence, and the link between the two is well settled in India. In Shreya Singhal v Union of India, the Supreme Court made it clear that, consistent with Article 19(1)(a) of the Constitution, the correct standard for criminalising speech was that of incitement to violence. Not advocacy; not violent thoughts; but incitement. The judgment in the Shreya Singhal case articulated an evolving latent standard in Indian free speech law, that had been expressed in various forms since the Ram Manohar Lohia judgment in 1960: the requirement of close proximity between a speech and an unlawful act, summed up through phrases such as a “spark in a powder keg” (Rangarajan).

While it may appear tedious to recount uncontroversial Supreme Court jurisprudence – and indeed, it is tedious for the person doing the recounting – the exercise is made necessary by the fact that from time to time, courts seem either unaware of precedent, or seem to believe that following precedent is an optional exercise. A good example of this is today’s astonishing order of the Additional Sessions Judge at Saket, denying bail to Sharjeel Imam in the Delhi riots case. In brief: Sharjeel Imam gave various speeches on 13th December, 2019 and 15th December 2019. On the afternoon of 15th December, it is alleged that there was mob violence and stone pelting in an attempt to march to the Parliament. The prosecution’s case was that Imam had instigated the mob with his speech.

In the disclosure statement – extracted in paragraph 3 of the judgment – Imam’s speech can be roughly translated and summarised as follows: first, that he opposed the CAA and the NRC; secondly, that he called upon his community to oppose these laws and make the government bow; thirdly, that he called for “chakka jam” (blockades); and fourthly, he warned that if the CAA-NRC were not opposed, they would all land up in detention camps and have their citizenship stripped. In paragraph 5, the Court sums up the Prosecution’s case as follows:

As per prosecution, applicant/accused Sharjeel Imam had delivered provocative speeches on 13.12.2019, 15.12.2019 and 16.01.2020, which resulted into riots at several places. The speech dated 13.12.2019 is the subject matter of present FIR i.e.
242/19, PS New Friends Colony. It is alleged that in the said speech, applicant/accused was seen instigating a particular religious community against the government by creating unfounded fears in their minds regarding CAB and NRC. As per prosecution, speeches delivered by the applicant/accused were seditious, communal/divisive in nature and were aimed at promoting enmity between different religions.

It is important to note that on the Prosecution’s own case, neither a prima facie case under Section 124A (sedition), nor 153A is made out: “instigating … against the government” is not equivalent to “inciting … to violence”, and arguing that a particular law targets a particular community is not a S. 153A offence: as has been held multiple times, for 153A to be apply, the specific communities have to be singled out in express terms, between whom enmity is being generated. Thus, this is not – evidently – a case of hate speech (and indeed, as we shall see, the Court does not make any further mention of S. 153A).

Now in that context, in paragraph 10, the Court notes:

As far as allegations against applicant/accused for offences under section 143/147/148/149/186/353/332/333/307/308/427/435/323/341/120B/34 IPC & 3/4 Prevention of Damage to Public Property Act & under section 25/27 Arms Act with aid of section 109 IPC are concerned, after going through the record, I am of the prima facie view that the evidence in support of the allegations (rioteers got instigated by the speech dated 13.12.2019 of applicant/accused and thereafter they indulged in the acts of rioting, mischief, attacking the police party etc), is scanty and sketchy. Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam. Further, there is no evidence corroborating the version of prosecution that alleged rioteers/coaccused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019. Upon specific inquiry by this court, Ld. Special Public Prosecutor fairly conceded that at this stage, there is no material available with prosecution to the effect that applicant/accused and other co-accused persons were members of any common social platform viz whatsapp etc so as to fasten the liability of acts of co-accused upon present applicant with aid of section 109 IPC. The essential link between the speech dated 13.12.2019 and the subsequent acts of co-accused is conspicuously missing in the instant case.

One would think that at this point, an order granting bail would follow immediately: not only are the multiple cited sections of the IPC not made out, but the failure to establish even a prima facie causal link between Imam’s speech and the riots – let alone a causal link strong enough to meet Shreya Singhal‘s incitement standard – makes the sedition case a non-starter. However, in paragraph 15, the Court then says:

Thus in view of settled position of law, the issue whether the said speech would fall within ambit of section 124A IPC or not, requires a deeper analysis at an appropriate stage. However, suffice it would be to observe that a cursory and plain reading of the speech dated 13.12.2019 reveals that same is clearly on communal/divisive lines. In my view, the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquility, peace and harmony of the society.

In other words, the Court entirely ignores the legal test for the application of Section 124A – the incitement test – and replaces it with an entirely subjective assessment of the speech – that is on “communal/divisive lines” and would “tend to have a debilitating effect upon public tranquility.” But these are a whole lot of words that can mean just about anything: what is on “communal lines” or “tends to” have a “debilitating effect” on public tranquility is not a judicial standard that can be assessed on any reasonably measurable scale: it is, to use a phrase in vogue these days, “just vibes”. But imprisoning people for years on end (at the time of writing, Imam has already been in jail for a year and a half) on the basis of just vibes seems to have become a feature of the Indian judicial system of late.

It is telling that the Court sees fit to begin its order by quoting certain lines from Swami Vivekananda: “We are what our thoughts have made us; so take care about what you think; Words are secondary; Thoughts live; they travel far.” This is an excellent – if unwitting – insight into the mind of the Court: the problem is not that Imam incited a riot (he very evidently didn’t) or broke the law, it’s just that – put very simply – the Court doesn’t like the kind of stuff he seems to be thinking. And on that basis – and in complete disregard of existing bail jurisprudence – the Court decides that he must stay in jail for the foreseeable future.

The Court’s order here is eerily reminiscent of “imprisonment by metaphor: that is, of the Patiala House District and Sessions Judge order from last year, which denied bail to Safoora Zargar. There again, a perusal of the Prosecution’s material had revealed no definable offence, and no link between speech, protest, and violence. To keep Zargar in jail, the Court was forced to resort to metaphor, talking about how if you “play with embers” you can’t blame the wind for “spreading the fire”. And this is the whole issue: if, as a Court, you are going to take the extremely weighty step of keeping people in jail for years pending trial, the least you can do is to provide specific reasons showing what the particular, identifiable, unlawful act is: not metaphor, not quotes from Swami Vivekananda about bad thoughts.

The problem seems to be, however, that Courts do not regard keeping people in jail for years as a weighty issue – or indeed, an issue of any concern whatsoever. Individual liberty is degraded currency at the Court, and for that reason all we get are orders sanctioning imprisonment by metaphor or imprisonment by Swami Vivekananda quotes.

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.

Back to the Basics: The Delhi High Court’s Bail Orders under the UAPA

[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:

  1. The UAPA is a special statute, designed to deal with a state of exception, and its operation should not be blurred with ordinary legislation.
  2. Criminal statutes must always be narrowly construed, and their terms given due specificity.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

Notes from a Foreign Field: In Re Humphrey – A Case Against Cash Bail [Guest Post]

[This is a guest post by Kieran Correia.]

The Supreme Court of California (“the Court”), in a unanimous ruling, held that detaining defendants solely because they are unable to afford bail was “unconstitutional.” This judgement marks a rupture from the routine of requiring defendants — even indigent defendants — to post large, often outrageously high amounts of cash bail, a practice that results in the disproportionate incarceration of people of colour in America.  

Some background to this case is in order. Humphrey, an African American sixty-six-year-old man, allegedly committed theft against a seventy-nine-year-old Elmer J. who lived in a senior home. Humphrey reportedly barged into Elmer’s home and, after threatening him, robbed $7 and a bottle of cologne. At arraignment, the prosecution demanded bail be set at $600,000 — more than 4 crores in Indian rupees — an astronomical figure, especially in comparison to the amount Humphrey stole from Elmer. Humphrey’s request to be released on his own recognizance — essentially, without posting bail — was denied and the amount was set at $600,000. Humphrey challenged the decision, pointing to the racism inherent in California’s criminal justice system and his rehabilitation from drug addiction among several other ameliorating aspects. However, the court dismissed his release request yet again, whilst reducing the bail amount to $350,000 — an amount still unaffordable to Humphrey.

Humphrey then filed a habeas corpus petition in California’s Court of Appeal. The appeals court granted his petition after the Attorney General reversed his decision of contesting bail. The appeals court ordered a new bail hearing, and Humphrey was subsequently released on certain nonfinancial conditions. The case was not appealed, but, at the request of certain authorities, the California Supreme Court took up the matter to settle the constitutionality of money bail in California.

Cash/money bail is still the dominant condition courts world over impose on defendants if they want to secure pretrial release. The bail amount can be egregiously high, as it was in this case, especially so in California, something the Court notes as well. This has led to the commercialization of furnishing bail in the United States: bail insurance companies and bail bond agents take advantage of the system, lining their pockets in the bargain.

The United States Supreme Court — most notably in Bearden v. Georgia — has, in the past, indicated its unwillingness to allow an indigent defendant’s probation to be revoked because of their being unable to pay a fine. The Supreme Court opined that the state could only imprison the probationer if “alternatives to imprisonment [were] not adequate in a particular situation to meet the State’s interest in punishment and deterrence,” as long as he has made efforts to pay the fine. Though this ruling has rarely been upheld in practice, it nonetheless indicated the Supreme Court’s opinion vis-à-vis imprisoning probationers solely because of lack of money: that it was “fundamentally unfair.”

The Court draws on this broadly similar case to argue that it is not “constitutional to incarcerate a defendant solely because he lacks financial resources.” This is because, the Court argues, to do so would violate the defendant’s substantive due process rights to liberty as well as her equal protection rights — a similar argument made in Bearden. Substantive due process is an American constitutional law principle that argues that due process, a notion that finds a place in both the Fifth and Fourteenth Amendments to protect against arbitrary action on the part of the state on certain issues, also protects certain substantive rights — such as the right to liberty.

The Court acknowledges that bail is set to ensure the defendant appears in court proceedings and to protect the victim and the public. However, whilst setting bail, courts often ignore the accused’s financial situation; a high bail order can, therefore, in effect, become a “pretrial detention order.” As a corrective, the Court posits:

An arrestee may not be held in custody pending trial unless the court has made an individualized determination that (1) the arrestee has the financial ability to pay, but nonetheless failed to pay, the amount of bail the court finds reasonably necessary to protect compelling government interests; or (2) detention is necessary to protect victim or public safety, or ensure the defendant’s appearance, and there is clear and convincing evidence that no less restrictive alternative will reasonably vindicate those interests. Pretrial detention on victim and public safety grounds, subject to specific and reliable constitutional constraints, is a key element of our criminal justice system. Conditioning such detention on the arrestee’s financial resources, without ever assessing whether a defendant can meet those conditions or whether the state’s interests could be met by less restrictive alternatives, is not. (Emphasis supplied)

Thus, two things can be understood from this. First, the court does not entirely do away with the concept of cash bail, as some have reported: defendants who have the means — as determined by the court — to post bail but fail to do so will not benefit from this judgement. And second, the test of “clear and convincing evidence” by the state in order to deny bail has been reinforced: pretrial detention can only be an option where less restrictive alternatives cannot satisfy the state’s interests.

This is a welcome change from the status quo on cash bail. Cash bail in the United States has played an unenviable role in incarcerating around 700,000 people pending trial, ensuring the United States has the largest jail population in the entire world. Releasing defendants who were only detained because of their inability to post bail will also disproportionately benefit Black Americans who bear the brunt of the carceral state.

However, this ruling, welcome as it is, does not go all the way in reforming California’s money bail system. Illinois, for example, recently became the first state to completely abolish money bail from the criminal justice system, and the State of New Jersey and Washington, D.C., have already nearly abolished the money bail system. Keeping the cash bail system partially intact, as this judgement does, only allows the continuation of the funnelling of enormous amounts of money into bail insurance corporations. What is more, is that bail will continue to be set by a rigid schedule — the same schedule that recommended bail be set at $600,000 for the crimes committed by Humphrey; though many may have the means to pay those amounts of bail, they are still immense amounts of money that are taken away from a potentially innocent defendant.

Nonetheless, progress, wherever made, should be heralded. The lessons here for India’s criminal justice system cannot be ignored. Like the United States, marginalized sections in India are disproportionately incarcerated: Muslims, Dalits, and Adivasis, whose share of the population is 39%, comprise a little over 50% of the imprisoned population in India. Though India’s Supreme Court has held, on numerous occasions, that bail is the exception rather than the rule — encapsulated quite succinctly by Justice V.R. Krishna Iyer’s “[t]he basic rule may perhaps be tersely put as bail, not jail” — Indian courts have rarely lived up to this ideal.

Moreover, as in California, judges in India set bail at a high amount, leading to several thousand indigent defendants languishing in jail even as wealthier defendants who commit the same offence are let off. During the Covid-19 pandemic, for instance, hundreds of arrestees were in jail because they could not meet their surety conditions. These problems with bail had prompted Justice P.N. Bhagwati in Hussainara Khatoon to remark that it was “imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.” The reason for eliminating high sureties as conditions for bail for indigent defendants in India is, thus, clear. Indeed, the California court’s judgement can serve as a useful roadmap. The right to liberty, for instance — a cornerstone of the California court’s judgement — is a core feature of the Indian constitution as well, enshrined in Article 21 of the Constitution of India, as is the right to equal protection before the law, codified in Article 14. Reading these articles together underscores the unconstitutionality of mandating cash bail even for poor defendants — a practice that, in effect, results in what Justice Cuéllar of the California court dubbed a “pretrial detention order,” when other conditions of release could have worked.  

The California Supreme Court’s judgement is certainly promising. The inclusion of cash bail in the justice system was always bound to incarcerate poor arrestees whilst acting as a get-out-of-jail-free card for the wealthy. This ruling shows us a way out of this.

Safoora Zargar and Disha Ravi: A Tale of Two Bail Orders

The order granting bail to Disha Ravi in a sedition case is remarkable not so much because of its outcome, but because of the short shrift that it gives to the State’s hysterical accusations of conspiracy-by-Google-Docs. In ordinary circumstances, this would not be remarkable either – judicial skepticism towards the State’s claims of far-reaching conspiracies to justify keeping people in jail, when there exists no evidence linking them to actual violence, should be par for the course. However, that has conspicuously not been the case in recent times, at all levels of the judiciary. Consequently, what makes the bail order remarkable is how (sadly) uncharacteristic it is. Indeed, the order stands in stark contrast to the order of 4th June 2020, that denied bail to Safoora Zargar, in what have come to be known as “the Delhi Riots cases.” A comparison between the two, therefore, merits scrutiny.

In the aftermath of Disha Ravi’s bail, it did not escape public attention that both orders were handed down by the same judge. It is important to clarify, however, that the purpose of this post is not to serve up some kind of a gotcha! conclusion, or point to judicial hypocrisy. As all human beings, judges themselves evolve over time and reflect on their own judgments and orders, and one can hope – in light of yesterday’s order – that future cases before the same judge would follow his more recent convictions on liberty, free expression, and skepticism of State power, rather than his older ones. The comparison is merited, however, the underlying State case in both circumstances was remarkably similar (and indeed, appears to be following a specific legal “toolkit”, if one may use that word), and the verdicts in both cases reflect two starkly opposed judicial approaches to the question of personal liberty.

Admittedly, there is a significant legal difference between the two cases, in that while Disha Ravi was “only” accused of sedition, Safoora Zargar was booked under the UAPA, whose Section 43(D)(5) throws up significant barriers to granting bail, barriers that have been made worse by the Supreme Court’s notorious Watali judgment. A perusal of the two bail orders reveals, however, that in this context, the distinction is largely irrelevant. Even though Disha Ravi’s counsel specifically argued that sedition is a milder offence that – even on conviction – allows judges to levy only a monetary fine by way of sentence, this did not form the basis of the bail order. Even the classic bail conditions – whether the accused is a flight risk, and whether the accused can tamper with the evidence or the witnesses – occupy only a small space in the Disha Ravi bail order; for the most part, the learned ASJ focuses on whether, on the facts presented by the Prosecution, a prima facie case of sedition is made out or not (and finds that it isn’t). This is exactly how he proceeded in the Safoora Zargar case – and indeed, under 43(D)(5) of the UAPA, bail can be granted if no prima facie case has been made out.

This is where the similarities between the two cases become important. In both cases, there were certain incidents of violence. Neither Disha Ravi nor Safoora Zargar had engaged in violence, been present at the scene of the violence, or incited violence (there were vague claims that Safoora Zargar had given “inflammatory speeches”, but these were not adverted to by the Court, and did not form part of its order). For this reason, in both cases, the Prosecution attempted to pin the actions or speeches of others onto the accused, by alleging the existence of an overall conspiracy, of which the accused were a part.

How did the Court deal with this? In Disha Ravi’s case, it very correctly noted that “conspiracy cannot be proved merely on the basis of inferences. The inferences have to be backed by evidence” (para 22). Dealing with the Prosecution’s contention that Disha Ravi was in contact with secessionists, the Court then noted:

“… it is not mere engagement with persons of dubious credentials which is indictable rather it is the purpose of engagement which is relevant for the purpose of deciding culpablity. Any person with dubious credentials may interact with a number of persons during the course of his social intercourse. As long as the engagement/interaction remains within the four corners of law, people interacting with such persons, ignorantly, innocently or for that matter even fully conscious of their
dubious credentials, cannot be painted with the same hue. In the absence of any evidence to the effect that the applicant/accused agreed or shared a common purpose to cause violence on 26.01.2021 with the founders of PJF, it cannot be presumed by resorting to surmises or conjectures that she also supported the secessionist tendencies or the violence caused on 26.01.2021, simply because she shared a platform with people, who have gathered to oppose the legislation.” (para 22)

Now this is entirely correct, and follows a long line of Supreme Court precedent that has clarified that if you’re going to damn someone by association, it has to be active association (in UAPA cases, active membership of banned organisations). This is crucial, because without limiting the chain of association, just about anyone who has ever shared a platform or interacted in any form with any dubious individual can be brought into the net of criminality through the legal device of a “conspiracy”, and incarcerated for years without trial. But this is also what the Court very conspicuously did not do Safoora Zargar’s case; in fact, in that case, the Court said:

“Further, even if no direct violence is attributable to the applicant/accused, she cannot shy away from her liability under the provisions of the said Act [UAPA]. When you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.”

But this is precisely the endlessly extendable guilt-by-association doctrine that the Court (correctly) rejected in Disha Ravi’s case. Safoora Zargar was damned specifically for (allegedly) having associated with people who engaged in violence, without any evidence against her – either by way of commission of violence, or by way of incitement. In Disha Ravi’s case, the Court (correctly) insisted that allegations of conspiracy require evidence, and found evidence lacking, as there was no common intention and no proof of anything beyond allegations of mere association; in Safoora Zargar’s case, the Court began by accepting the allegations of conspiracy, and then, on that basis, imputed the actions of some of the alleged conspirators to Safoora Zargar as well, because of their mere association. Ultimately, the issue boils down simply to this: in one case, the Court insisted that the State back up its claims against the specific, criminal culpability of an accused, including as part of a larger conspiracy; in the other case, it didn’t.

The difference in the two approaches is particularly stark on the key legal issue of the relationship between disaffection in violence. In Disha Ravi’s Case, after citing the judgment in Kedar Nath Singh, the Court noted:

Evidently, law proscribes only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. ‘Violence’ seems to be the gravamen of the charge. (para 20)

In Safoora Zargar’s case, after citing the judgment in Kedar Nath Singh, the Court noted:

Therefore, evidently, law frowns upon any act which has a tendency to create disorder or or disturbance of law and order or incitement to violence. Therefore, mere violence is not the gravamen of the charge under u/s 2(o) of the UAPA.

The substitution of the word “any” with “only”, and the removal of the word “not” led the Court to a 180-degree turn, when considering the same judgment (Kedar Nath Singh) and the same legal term (disaffection, albeit in different laws). The distinction is crucial, because how strongly the Court requires the causal link to be established between the accused and the act of violence is the fact upon which everything else turns. Disha Ravi was (correctly) granted bail because the Court asked for evidence. Safoora Zargar was (wrongly) denied bail because the Court relied on a metaphor.

As I clarified at the beginning, the point of this post is not to play gotcha! games; at the same time, inconsistency in judicial pronouncements in matters relating to personal liberty presents a serious challenge to the rule of law. The Disha Ravi case shows that notwithstanding the Supreme Court’s Watali judgment, it is entirely possible for a trial Court judge to examine the basics of the State’s “conspiracy” claim, and find them utterly lacking in evidence or particulars, thus completely breaking the chain of causation between the accused and the act of violence. All it needs is a dose of judicial skepticism, some probing questions, and clarity on the legal position that whether it is sedition of the UAPA, violence (and incitement thereof) is the gravamen of the charge, and even the Prosecution’s prima facie case requires to pass at least that basic threshold before the bar under 43(D)(5) is invoked. If that is done consistently, then we will have no more Safoora Zargar cases, and no more imprisonment by metaphor.

Guest Post: Union of India v K.A. Najeeb – a Ray of Hope for UAPA Undertrials?

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

[This is a guest post by Bharat Harne.]

The Supreme Court (SC) on 1st February 2020 delivered an important judgment, Union of India v KA Najeeb (K.A. Najeeb), related to granting of bail in Unlawful Activities Prevention Act  (UAPA) 1967 cases. The Court held that any constitutional court has the power to grant bail to people accused of offences under UAPA irrespective of Section 43-D (5), so as to enforce the right to speedy trial which is guaranteed under Article 21 of the Constitution.  The judgment has been hailed as the step in the right direction, given that the stringent provisions of Section 43-D (5) makes it almost impossible for a person to secure a bail for an offence under UAPA and under-trials languish in jail while the trial drags on for years. In this post I will highlight the importance of the judgment in the context of the operation of UAPA on ground and will try to answer some of the questions which K.A. Najeeb has thrown up.

UAPA – A Tool of Oppression

 The UAPA creates an alternate criminal justice system where the Code of Criminal Procedure (CrPC) does not apply and there are little safeguards for the accused. Empirical research has shown that two-thirds of the accused end up getting acquitted. However, the criminal trial drags on for years and most of the accused end up serving significant amount of time in jail before the trial concludes. This is primarily because of Section 43(D)-5 of the UAPA. According to Section 43(D)-5 a person accused of an offence under UAPA cannot be released on bail if, on a perusal of case diary or the report made under s. 173 of CrPC, the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Notice that the standard of prima facie is extremely low. In NIA v Zahoor Ahmad Shah Watali held that the to satisfy the standard of prima facie no elaborate scrutiny or dissection of the material is required. Simply put, the court merely has to rely on the words of the investigating agency and see whether the allegations fit the offences. In view of such stringent bail provisions and lengthy trials there was no way for undertrials to get bail even though they ultimately they might end up getting acquitted. Thus, an accusation under UAPA becomes as good as conviction and a way for the State to punish people without subjecting them to a fair trial.

The lack of any interim relief paved the way to a particularly odious practice i.e., informal plea bargaining. Since undertrials languished in jails for years and years they end up serving a significant portion of the sentence of the crime they are accused of even before the trial has concluded. This leads to the accused reaching an informal arrangement with the prosecutors wherein the former plead guilty, resulting in a conviction that is usually for the period already served as undertrial or a reduced sentence. It is not unlikely that quite a few accused who were actually innocent pleaded guilty just so that they can get out of prison. The fact that a person is forced to plead guilty for a crime that they did not commit is illustrative of how UAPA is doing grave injustice to the accused and violating their right to liberty.

It is in this context that the decision of the SC becomes very important. The court has held that bail can be granted to an undertrial irrespective of Section 43-D (5) of the UAPA if the court finds that right to speedy trial under Article 21 is being violated. In the instant case the accused had spent nearly five years in prison out of maximum 8-10 for which he could potentially get convicted. Moreover, 276 witnesses who were left to be examined when the matter came before the SC. It held Section 43-D (5) is not a bar when right to speedy trial is violated and accordingly granted bail in this case. The decision of the court is welcome, however the decision itself has opened up a few questions which I will now explore.

A Few Concerns

First, it is not exactly clear what is the standard used by the Court to arrive at the finding that right to speedy trial has been violated. The court seemed to have been led by two considerations – a) the period of time spent in jail and b)- the possibility of early conclusion of trial. With respect to the first condition the accused had spent five out of the maximum of 8-10 years for which he could be convicted. However, the court stopped short of giving any principled reasoning which could be used in future cases to decide whether the right to speedy trial has been violated. Currently s. 436A of CrPC (which does not apply to UAPA) states that if an accused has spent half the period of time out of the maximum period of punishment specified for that offence, the accused has to be released on bail. This provision was not a part of the original CrPC and was added in 2005. Although the Statement of Object of Reasons to the CrPC amendment does not talk about s. 436A, the rule of giving bail on spending half the time specified for that offence is prison emerges out of the jurisprudence of SC in cases concerning right to speedy trial. In Hussainara Khatoon v Home Secretary, State of Bihar (which laid the foundation of right to speedy trial)- the court observed how several undertrial prisoners has spent more than one half of the maximum punishment of which they could be convicted. The court directed the government to appoint lawyers for such undertrials and file an application for bail. In Supreme Court Legal Aid Committee v UoI, another case dealing with right to speedy trial, the court issued a number of directions with respect to pending cases. One such direction was to release those undertrials who were accused of an offence under NDPS Act carrying maximum punishment of five years or less and have spent time in jail which is not less than half the punishment provided. It was only after this line of cases that s. 436A was added to the CrPC. It can be safely be assumed that the legislature was inspired by jurisprudence on right to speedy trial. It is therefore submitted that the rule contained in s. 436A of CrPC i.e., half the maximum punishment as undertrial can be a good standard for UAPA cases where the right to speedy trial is being prayed because the source of this rules itself is jurisprudence on right to speedy trial. If not as a fixed rule, it should at least give a presumption that the right to speedy trial has been violated and then the burden should shift on the state to justify continued detention.

Second, the court also took into consideration the time which it would take to conclude the trial. The court was of the opinion that in the present case since 276 witnesses were yet to be examined the trial will take long to finish and the accused ought to be released. It will be noticed that in the present case the court is concerned with a particular stage of criminal justice process, i.e., trial. However, it is well settled that right to speedy trial extends to all stages including investigation, inquiry, trial, appeal, revision and re-trial. In the context of UAPA it is important to pay attention to one particular stage i.e., investigation. This is because the NIA which is India’s anti-terror agency deliberately slows the investigation to keep the accused in prison for as long as possible. This is done by filing chargesheets and supplementary chargesheets with long gaps, which ensures that the trial is kept in suspended animation and the accused is in prison. This is especially done when the agencies know that their case is weak and will not stand a trial. This strategy has been adopted by the agencies in Delhi Riots case and Bhima Koregoan case. In both these cases the accused have been mostly denied bail. Since the right to speedy trial includes the stage of investigation the courts in the future will have to take this reality into account and expand the scope of SC’s decision in K.A. Najeeb. The SC’s jurisprudence on speedy trial and long period of investigation itself does not inspire much hope. In Rahubir Singh v State of Bihar the police of Bihar were accused of delaying the investigation to keep the accused in jail at any cost. The accused were a group of people caught while they were secretly attempting to cross the Indo-Nepal border at the height of Sikh militancy in 1984. It turned out that one of the persons was himself suspended from Indian Police Services for his anti- India activities. The court observed that the investigative agencies were justified in extending the investigation because the case involved ‘suspected conspiracies bristling with all manners of complexities’ and therefore even though there were ‘lulls’ in investigation it cannot be said that right to speedy trial was violated. While these considerations might have been true in that case, it is well known that arguments of ‘national security’, and ‘conspiracies involving complex investigation’ are a slippery slope to giving the executive free hand to trample on the liberties of its citizens. This exceptionalism might well play a role in future cases because the UAPA itself deals only with such suspected conspiracies and threats to national security and the Indian judiciary is notorious for buying into such arguments of ‘national interest’ and ‘national security’ too easily.

Third, India’s bail jurisprudence is notoriously inconsistent and discriminatory. For example, the MP High Court did not even apply the well settled principles of bail law in Munawar Faruqui case and inexplicably relied on Fundamental Duties to deny bail. Similarly, while bail was granted to Arnab Goswami in Article 32 petition because the courts thought the police was misusing its power, journalist Siddique Kaplan is languishing in jail and his Article 32 petition was rejected and when Arnab Goswami case was cited, it was simply remarked that every case is different. If constitutional courts fail to apply even well settled principles of bail law to regular cases, only time will tell how K.A. Najeeb will be applied in the future especially because the judgment does not even lay down any concrete principle on which bail is to be given and therefore remains susceptible to inconsistent and unprincipled application.


K.A. Najeeb has the potential to remedy injustice that is caused by stringent bail condition under s. 43-D(5) of UAPA.  However, this potential can be realized only if there is principled application of the judgment. In K.A. Najeeb the court relied on two considerations the period of time in jail as undertrial and the time left for conclusion of trial in order to determine whether right to speedy trial was violated but failed to specify any principled rule to decide future cases. In this post firstly, I have argued how the law can take shape in the future firstly showing how the rule in s. 436A of the CrPC can be a good indicator if not a brighline rule for violation of right to speedy trial; secondly, I have argued that the courts need to take into account the delaying tactics used by investigative agencies to effectively enforce right to speedy trial. In conclusion it is submitted that only if we have some settled principle based on which bail can be given in UAPA cases can we hope to effectively enforce right to speed trial and remedy the injustice caused by UAPA.

The Unwholesome Servility of the Kerala High Court

In 2020, while dismantling the constitutional guarantees of personal liberty, our Courts gave us some memorable lines as background score to accompany the clanking of prison bars. The prize for the best essay was finally split between the J&K High Court’s invocation of the Greek tyrant Menelaus and the Patiala House District & Sessions judge’s sanctimonious “if you play with embers…” Four days into 2021, however, a Kerala High Court Division Bench of Hariprasad and Haripal JJ have already beaten all comers for this year, with something truly extraordinary. In paragraph 39 of their judgment setting aside a well-reasoned bail order of the NIA Court, these judges note that:

“We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon’ble Judges who authored the judgments which is unwholesome.”

First of all, what is an “order … prepared as if it is a court of record”? We do not know, but if the order served up to us by Hariprasad and Haripal JJ is supposed to be an example of what “courts of record” do, then perhaps the learned NIA judge would be well-served by taking this gratuitous piece of advice to heart. But it is the second line that is truly mind-boggling. Hariprasad and Haripal JJ appear to believe that Supreme Court judges are not public servants who have sworn an oath to uphold the Constitution, but gods on high whose “names” lesser mortals like a mere NIA judge (and presumably, by extension, the rest of us who do not sit on “courts of record”) ought not to take. After all, who knows what would happen if all of us started taking the names of Supreme Court judges in vain? Plagues, perhaps, or frogs from the sky, or maybe we’d just vanish in a cloud of contempt-tinged smoke. All very unwholesome occurrences. But jokes apart, this needs to be called out for what it is: two High Court judges browbeating and bullying a subordinate judge for daring to do his job, while signalling a servile fealty to the Supreme Court. And that is how the worst of hierarchies work: admonishment to those below, obsequiousness to those above.

It would have been bad enough if paragraph 39 was the worst of it, but unfortunately, it does not even begin to scratch the surface. The NIA Court had granted bail to two men accused of offences under the UAPA. The case of the Prosecution was that these men had been found in possession of materials that promoted Maoist ideology and advocated the “liberation” of Jammu & Kashmir. What is notable about this case is that whereas in other UAPA cases, the Prosecution makes at least a token attempt to link the accused with actual terrorist activities, or tangible associations with a banned organisation (for example, collecting funds, or collecting arms), here the Prosecution’s case was actually only limited to the possession of Maoist literature and sloganeering, apart from accusations of “attending meetings” and preparing “cloth banners.”

The Supreme Court – the names of whose judges we cannot take – has laid down clear jurisprudence on this issue. “Membership” of a banned organisation – according to the Supreme Court – has to be understood as being limited to “active membership”, i.e., incitement to violence. If passive membership was also held to be a part of the UAPA, then its sections would be unconstitutionally broad, and would have to be struck down. Consequently, these judges – who shall remain nameless – have made clear that even at the prima facie stage – and notwithstanding Section 43(D)(5)’s high threshold for granting bail – it must at the very least be shown that if the Prosecution’s case was taken to be true, it would have to meet the threshold for active membership.

It is obvious that in the present case, taking the Prosecution’s own case at face value (as laid down in the Watali judgment), the offence of active membership had not been made out. However, in exhorting the learned NIA judge not to dare name Supreme Court judges, Hariprasad and Haripal JJ seemed to have simultaneously exempted themselves from studying Supreme Court judgments. While there are copious references to Watali on the issue of bail under the UAPA, Hariprasad and Haripal JJ seemed either oblivious of Supreme Court judgments on the scope of the UAPA offences, or – for reasons best known to themselves – decided that it is optional to engage with Supreme Court judgments that go in favour of individual liberty.

Not only are Hariprasad and Haripal JJ wrong on law, but their judgment also contains multiple leaps of logic. In para 23, they go from “the accused were in possession of CPI(Maoist) literature” to “the accused are protagonists” of the CPI(Maoist) – not so much a logical leap as a running long-jump over the Grand Canyon. In my house, I have a lot of literature written by winners of the Hugo Awards, and I do wish that ipso facto made me a winner of a Hugo Award. Unfortunately, that is not how the world works, something that most people are aware of (but not, it would appear, Hariprasad and Haripal JJ). Hariprasad and Haripal JJ then go on to cite evidence that the accused had a “rapport” with persons having “close links” with the banned organisation: note, not that the accused were part of a banned organisation, not that they had close links with a banned organisation, but that they had a “rapport” with “persons who had close links” with the banned organisation. Not only are we at opposite ends from the Supreme Court’s requirement of “active membership”, but we are at opposite ends from any respectable concept of causation in criminal law. Similarly, Hariprasad and Haripal JJ go on to refer to “ocular evidence” that the accused were attending “meetings” of the banned organisation – failing to recognise, yet again, the distinction between “active membership” and attendance at meetings.

If this were not disturbing enough, we now come to something profoundly alarming. In paragraph 26, Hariprasad and Haripal JJ state:

True, the prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint.

In short: you are guilty if there is evidence against you. But you are also guilty if there is no evidence against you, because that only shows how good you are at operating “surreptitiously”. The State always wins. At this stage we are in Stalinist show-trial territory. Hariprasad and Haripal JJ then go into how the accused made “photocopies” (!) of documents, how they perceived the State to be their “foes”, and how the documents referred to overt and covert comrades. Things then pass into surreal territory, where Hariprasad and Haripal JJ observe that one of the documents mentioned the dangers of phone hacking, that the accused did not have their phones with them when they were arrested, and that this shows that they were “following a diktat.” If Hariprasad and Haripal JJ had spent their free time studying judgments of the Supreme Court (whose judges, I must remind you, we cannot name) instead of reading The Day of the Jackal, this “court of record” may have produced a better judgment than something reading like Frederick Forsyth’s fevered dream.

Hariprasad and Haripal JJ then put the cherry on top of this concoction by stating that the accused were in possession of documents involving J&K that bear “the seeds of a secessionist ideology.” Much like the “if you play with embers” line in Safoora Zargar’s bail order and the J&K High Court’s invocation of King Menelaus, this is that part of the judgment where you can tell the Court is hiding behind metaphor and imagery because, deep down, the judges know that the law requires something different. What on earth does “seeds of a secessionist ideology” mean? Which law defines “seeds …. of an ideology”, secessionist or otherwise? We do not know, and we cannot know, because the Courts have long sacrificed rigorous legal reasoning at the altar of the crudest nationalist rhetoric.

Hariprasad and Haripal JJ then end with the ringing declamation of the line that has been music to the ears of tyrants and authoritarians at all times and places. “individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail.”

Ein volk, ein reich. Indeed.

These days, the “courts of record” (with a few honourable exceptions) appear to be in a race to become more pro-Executive than the Executive. Hariprasad and Haripal JJ’s effort has set the tone for 2021 in that respect, and will probably take some beating. But last year was full of surprises, and no doubt, soon enough, we will have a judgment where a judge will preside over a hearing but whose name will mysteriously vanish from the record, so that people actually can’t take his name.

Oh, wait. That already happened.

Guest Post: Silence and ‘Pragmatism:’ Skirting bail conditions in the UAPA

[This is a guest post by Nitika Khaitan.]

The denial of bail to Safoora Zargar last week drew fresh attention to harsh conditions in the Unlawful Activities Prevention Act 1967, which make it exceedingly difficult to secure bail. Under S. 43D(5) of the Act, no person accused of certain UAPA offences can be released on bail if the court finds reasonable grounds to believe that the accusations against her are prima facie true. Amidst overly broad definitions of these offences, and a low prima facie threshold, how then have courts granted bail? Sometimes, by narrowly interpreting offences or holding that the evidence against the accused is contradictory. At other times, as is the focus of this post, by simply leaving out any mention of the Act or its mandate altogether.

In 2016, for instance, the Supreme Court granted bail to the Dalit activist Angela Sontakke, accused of being a member of the Communist Party of India (Maoist), which is banned as a terrorist organisation. The Bombay High Court had earlier held that her bail was barred by S. 43D(5), since she appeared to be an active member unlike some of her co-accused (who had thus been granted bail by a different High Court bench). While allowing Sontakke bail, the Supreme Court order records that she is charged with offences under Chapters IV and VI of the UAPA, which attract S. 43D(5). But the order doesn’t mention the section. It doesn’t even briefly refer to the evidence against her, let alone record a different prima facie finding from the High Court’s. It speaks merely of balancing the serious charges against her with the facts that she is a woman, has spent years in custody and has yet to see her trial begin.

This is far from the only order that reads as if S. 43D(5) doesn’t exist. In 2017, while granting bail to three Kabir Kala Manch activists accused in the same case as Sontakke, the SC doesn’t even mention the UAPA. Other orders mention just the section number. In the 2017 bail plea of Malegaon blast accused Lt. Col. Prasad Shrikant Purohit, his counsel contended that S. 43D(5) wouldn’t apply since the blast occurred before the amendment that enacted the section. The SC order holds that this plea must be considered at the time of trial and not now. Without excluding the application of S. 43D(5) though, the SC proceeds to effectively ignore it. (The judgment also, oddly, refers to the state as having “rights” to investigate, instead of calling it what it is, a power.)

The SC’s reasoning for granting him bail reads like an order under ordinary law. The SC refers to prima facie satisfaction in support of the charge as one of the factors to consider (true for regular bail), not as the factor that S. 43D(5) elevates above all else. The only other time the Court uses the phrase is in holding that there is a “prima facie case for release on bail,” decidedly not the finding it is mandated to return. Attempts to hunt for the missing reasoning elsewhere in the order fail. The SC does say that there are “variations” and “material contradictions” in chargesheets filed by different investigating agencies (this was also discussed in the Bombay HC order granting bail to another Malegaon blast accused, Pragya Singh Thakur). But before one can infer that this is what led the SC to believe a prima facie case wasn’t made out, the order promptly states that these contradictions too need “to be tested at the time of trial and this Court cannot pick or choose one version over the other.” Almost as if to overcompensate for its missing finding on the evidence, the order repeats thrice on the same page that “at the stage of granting bail, a detailed examination of the evidence” need not be undertaken. (The general proposition is correct, but as held by the SC in the context of another law imposing similar restrictions on bail, “The duty of the court at this stage [of bail] is not to weigh the evidence meticulously… However, while dealing with a special statute… the court may have to probe into the matter deeper”). The order ends by going beyond the usual caveats and emphasises that the grant of bail here “shall be no consideration for grant of bail to other accused persons in the case.”

In none of the cases above did the Court say it was using its extraordinary powers to grant bail where other courts, in light of S. 43D(5), would have been unable to. How do we read the Court’s silences in these orders? Explicitly engaging with S. 43D(5) of course has its pitfalls. As the Andhra Pradesh HC recognised, at the stage of bail, taking the view that the accusations against an accused are not true could dent the prosecution; while taking the opposite view may be akin to “pre-judging the charges.” But even if we allow for the possibility that the Court wanted to refrain from making any observations that would influence lower courts, to not even mention S. 43D(5) in an appeal from a HC that has rejected bail on these grounds goes too far. That this violates the Supreme Court’s own pronouncements is trite. See, for instance, its 2019 decision making clear that courts must apply their mind to the prima facie truth of the accusations. More importantly, while the SC’s orders above indicate an obvious unease with the years in custody that harsh bail conditions inflict on people, they also reflect an unwillingness to fix this unease with anything besides ad-hoc measures, falling far short of the jurisprudence a constitutional court could choose to build.

In the cases above, long years of incarceration played a key role in the Court’s reasoning in favour of bail—over five years for Sontakke, close to four for the Kabir Kala Manch activists and eight years and eight months for Purohit. (This same concern, and elision of the S. 43D(5) mandate, is evident in some High Court orders as well. A 2019 Bombay HC decision, for instance, partly engages with the lack of grounds to prima facie believe the allegations made for certain offences. But for other alleged UAPA offences, the HC simply states that they are punishable with merely two, seven and ten-year imprisonment terms, and the accused had already served nearly four years in jail.) In implicitly acknowledging the injustice of such pre-trial incarceration, while refraining from any systemic change, these SC orders mirror its earlier decisions in the context of other laws with onerous bail conditions.

In 1994, in the context of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the SC noted that “to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable” and “if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.” But noting also that the constitutionality of similarly restrictive bail provisions in the Terrorist and Disruptive Activities (Prevention) Acts, 1985 and 1987 (TADA) had been upheld earlier that year, the Court asked itself, “What then is the remedy?” The Court passed a “one-time” order. It directed all undertrials charged with certain offences to be released on bail, if they’ve spent a certain number of years in custody. The Court said that given the percentage of acquittals under the Act, “we cannot be oblivious to the fact that many innocent persons may also be languishing in jails.” But nothing in the order of course was “intended to interfere” with the future grant of bail by lower courts, which would continue as restrictively as before and presumably also lead to many innocent persons languishing in jails till another one-time SC order.

In a similar order two years later in the context of TADA (Shaheen Welfare Association v. Union), the Court even more explicitly recognised that “when the release of undertrials is severely restricted as in the case of TADA” and a speedy trial is “not practical, release on bail… may, in some cases, be necessary to meet the requirements of Article 21.” Acknowledging that “many of the under-trials may be found to have completed the maximum punishment provided by law by being in jail without a trial,” the Court again offered a “pragmatic approach” / “one-time measure.” The Court divided TADA undertrials into different categories based on whether they were roped in for possession offences or overt acts directly attracting TADA sections, or by virtue of vicarious liability and conspiracy provisions; and directed release on bail on different conditions for each category. The Court recognised that it was overriding the ordinary operation of TADA by creating these classes but held that “while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick.”

What of pragmatism and justice after the one-time measure then? In Shaheen Welfare Assn., the Court recognised that stringent bail conditions “can be justified… on the presumption that the trial of the accused will take place without undue delay.” The Court had then focused on the inadequacy of Designated Courts set up to try TADA cases as the cause for this undue delay. But gross delay is of course pervasive, not exceptional. While upholding TADA’s constitutionality, the Court had also recognised that TADA was often unscrupulously invoked merely to deny bail. It stopped, however, at terming this sheer “misuse and abuse” and merely exhorting prosecutors and courts to do their job better. But what of the extensive material to show that misuse and abuse are woven into the provisions of extraordinary laws? Particularly in the context of the current repository of most of TADA’s provisions, the UAPA, under which the ‘independent’ authority set up to sanction prosecution is appointed by the executive itself.

Despite repeatedly being confronted with the reality that onerous bail conditions equal years of incarceration without guilt, courts have more often than not resorted to elision and ad-hocism. In a series of decisions from November 2019, the Punjab and Haryana High Court called this out. These decisions were delivered in the context of harsh bail provisions for some offences in the Companies Act, 2013, which prohibit release on bail unless the court is satisfied of reasonable grounds to believe that the accused is “not guilty” of the alleged offence amidst other conditions. The High Court orders state that there is an “inconvenient question, which has not been shown… to have been answered by any court so far, including the Hon’ble Supreme Court. The question is – for how long an accused can be kept in custody on the basis of non-fulfillment” of restrictive bail conditions? The HC order decries “unfortunate situations where a court may not even find the moral courage or the legal sanctity to tell to the accused that he shall have to wait in custody till conclusion of the trial, despite and in face of the legislative policy contained in provisions of Section 436A of the Cr.P.C.” S. 436A of the CrPC mandates the release of under-trial prisoners if they have been incarcerated for half the maximum term of imprisonment for their alleged offence. S. 436A itself carves out an exception for offences punishable with death, but non-obstante clauses in special laws like the UAPA exclude the benefit of S. 436A even for offences punishable with imprisonment for three years. Despite such non-obstante clauses, the HC emphasises that years of custody without trial “cannot be used to curtail the liberty of an accused in violation of Article 21” and poses more inconvenient questions—“In such a situation the court would do substantial justice; or would stick to the [bail] conditions…Even if the courts are to stick to such condition; then how much injustice to the accused would be sufficient to off-set or to balance” the conditions? The HC goes on to hold that unless these questions are “categorically answered to say that till the conclusion of the trial such a person cannot be released on bail,” the onerous conditions cannot be held to be mandatory. (Also see the same bench’s 2018 decision with respect to NDPS cases).

In the context of the UAPA as well, certain High Courts reflect a more sustained engagement with these questions. In a 2014 decision, the Andhra Pradesh HC lays out, colourfully, the cautious and delicate approach needed with provisions like S. 43D(5), comparing it to “the care which a cat is expected [to take] while carrying the kitten in its mouth from one place to another.” The order dilates for several paragraphs on motivated prosecutions; emphasises that “an accused cannot be equated to a convict, even before the trial is conducted;” and goes on to lay out guidelines for courts to appropriately form the prima facie opinion required by S. 43D(5), while taking concerns of liberty seriously.

Such guidelines ultimately may not make too much of a difference—the inherently low threshold of S. 43D(5) no doubt ties the hands of lower courts. Till more authoritative pronouncements on these bail conditions, thus, the road ahead looks bleak. But as I’ve argued in the context of a different set of provisions under the UAPA, judicial logics often defer to state ones with anti-terror laws, accepting the need for extraordinary measures to combat ‘extraordinary’ threats, and making any such authoritative pronouncements unlikely. The history of personal liberty, as a judge from another time had said, is largely the history of insistence upon procedure. Not so with S. 43D(5), where liberty has oft been secured by ignoring it.

[The author thanks Jawahar Raja and Chinmay Kanojia for their help as always with locating UAPA orders; and Sanya Kumar and Megha Bahl for their incisive comments.]