Guest Post: The Doctrinal Discomforts of Default Bail

[This is a guest post by Abhinav Sekhri, and first appeared on the Proof of Guilt blog.]

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As the Indian Constitutional Law and Philosophy Blog discussed what seems like an eternity ago (it was only twelve days), a peculiar set of events had unfolded in the Supreme Court where a judgment passed by a Division Bench on 26.04.2023 was challenged by adopting a hitherto unknown process of a ‘recall’ application. The application had not yet cleared the registry to make it to the list of matters was therefore ‘mentioned’ orally on 01.05.2023 before a Division Bench comprising the Chief Justice, who directed that it shall be reconsidered and in the meantime not given effect to. 

There are rumours about the alleged procedural irregularities associated with the progress of the original case till its ultimate judgment. One does not know enough and therefore cannot comment on whether it was these set of circumstances which prompted the Supreme Court to adopt this unprecedented route thus far. But two wrongs never do make a right. Here, I take a different approach, and engage with the legal issues instead.

The judgment in question was Ritu Chhabaria v. Union of India [W.P. (Crl.) 60 of 2023 (“Ritu Chhabaria“)]. The issue that it dealt with was that of bail under Section 167(2) of the Criminal Procedure Code 1973 [Cr.P.C.], or what is popularly called ‘Default Bail’. It is a species of bail which accrues as a right to a person detained in custody during an investigation, and where the investigating agency fails to complete its investigating by filing the police report within the stipulated time-period of 60 or 90 days (depending upon the seriousness of the alleged crime). 

More specifically, the issue in Ritu Chhabaria was determining what amounts to completing investigation for purposes of extinguishing the right under Section 167(2). If triggering this right can be circumvented by police simply filing any collection of papers in court before expiry of the 60 / 90 day period, it renders default bail completely anodyne and illusory. It also undercuts the very intent behind incorporating this set of provisions in the first place: As Ritu Chhabaria and several decisions in the past have pointed out, the point was to try and curb the then-rampant habits of police to file ‘preliminary chargesheets’ at the end of 15 days (the earlier time limit) only to keep undertrials behind bars. The 1973 Code raised the limits by a wide margin, but this was done while incorporating default bail to ensure that undertrial incarceration is not oppressively long.

Herein lies the problem in this oft-retold tale of Section 167 being a means to rein in bad police practices. The tale is incomplete, giving us only half the picture, because by a sleight of hand it wants us to forget that the process of keeping a person behind bars is not a one-man show but a tag-team event. It needs both the police and the courts. The police will ask for custody, but it is the magistrate who must sanction it, and the tragedy of incessantly and oppressively long undertrial incarceration was as much a product of judicial apathy to personal liberty and treating bail as linked to the merits of a case. To sum up, the introduction of Section 167 was not only to deal with bad police practices, it was also to curb bad judicial practices by taking away fuzzy discretion and introducing a concrete rule for bail.      

You cannot change the stripes on a tiger as they say, and in a way that is the story of what has followed. The time limits were seen as insufficient by many and prompted the Supreme Court to label Section 167 as a ‘paradise’ for criminals in its first foray into the statutory provision. The sense of panic at the thought of countless ‘criminals’ being let loose led to amendments in 1978 increasing 60 days to 90 days for a subset of offences carrying higher sentences. In parallel came litigation before high courts where accused persons challenged rejections to their bail applications on grounds that what the police had done was nothing other than file a ‘preliminary chargesheet’ even at the end of 60 / 90 days. Since the late 1970s till today, we have had courts — both High Courts and the Supreme Court — adopting myriad approaches to deal with this perceived problem of letting the criminals go on a ‘technicality’. 

What connected all of these approaches was that all of them concurred in rejecting a bright-line approach that required an investigation to be complete in all respects at the end of the 60 / 90 days period. The stakes were simply seen as too high for the result to be decided on a rule, and so courts did what they do best and brought in wriggle room to make individualised decisions. Instead of demanding complete investigations, the judiciary substituted that rule with one that retained a measure of discretion for itself. Determine for yourself, magistrates were told, as to whether the document before you suggests the investigation is more or less complete. If so, reject the default bail. The result was to open a new arena of litigation within the matrix offering both the accused and police an opportunity to challenge unfavourable orders, and ensure that there can never be a settled law on the point.  

Ritu Chhabaria was the latest chapter in this history and, in that regard, offered an entirely unremarkable conclusion when it observed that any chargesheet or complaint filed without completing the investigation would not extinguish the right to default bail. Rather, the problem I would argue is what the judgment can be seen to stand for — a harkening back to a stricter rule of default bail requiring the agencies do more within the stipulated time period and restore some measure of importance to default bail. This is clearer if we look at the facts, which do not involve an alleged incompleteness because of some forensic reports not being filed, but question the very nature of the investigative exercise conducted which, to the court, was hopelessly short of the standard it considered to be required by Section 167.  

A stricter, more bright-line, rule of default bail in respect of completeness of investigations is a past which is certainly not appreciated by the police and other agencies which continue to decry the shortness of time to complete investigations, never fully answering the more pointed question — why does this require the continued incarceration of the individual as well? But as I suggest, a bright-line approach to default bail is not one that the courts are too fond of either, because they never came around to fully accepting the radical premise behind a concept of bail completely de-linked from the merits of the case (as argued elsewhere on the blog). These are serious allegations, and continued incarceration of undertrials is presumably a small price to pay to make sure that courts can apply their mind to these facts to get it right. 

History would suggest that the Supreme Court in reconsidering Ritu Chhabaria will nudge the pendulum back to the perceived centre on this issue. Old habits die hard, after all.

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

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

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

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

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

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

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

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

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

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

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

Proportionality in Remand: Lessons from Kenya

The Constitution says that an arrested person must be produced before a judicial authority within a stipulated time period (say, 24 hours). The police adhered to this timeline, and before the twenty-four hours are up, they bring the arrested person to the judge, and seek permission for continued custody. They cite various reasons: that the investigation is continuing, that the individual’s custody is required so that he may be ‘confronted’ with other witnesses, that the individual might interfere with the evidence or intimidate witnesses if he is left free, and so on. Overhanging this is the unarticulated premise: that a judge should not interfere with the work of the police. If the price to be paid is the temporary deprivation of liberty (for a few days, a few weeks, or a few months), then that’s just how it is. The judge, therefore, should apply a light touch in remand proceedings, essentially acting as a slightly sentient rubber stamp, or a stenographer who sometimes asks a few clarificatory questions. Judicial scrutiny should be like breath on glass, as transient and as ineffectual.

That is a familiar story, one that has become so normalised that the grant of remand when the individual is first brought before a judicial authority by the police is taken as a matter of course. But sometimes, we are reminded that it is not the only way that Constitutionalism and criminal justice can work.

In Directorate of Criminal Investigations vs Calvince Okoth Otieno (order copy on file with the author), three individuals were arrested on the 24th and 25th of March, 2023. On 27th March, the police applied to the court for ten-day custody, so that the police could complete investigations with respect to offences of unlawful assembly, damage to property, robbery with violence, and so on. The police claimed that the arrested individuals belonged to an “informal group” called the “Bunge la Mwananchi”, which was funded to cause damage to property and the breach of peace in Nairobi, with a view to destabilising the country (one may even say, a “larger conspiracy”, with due apologies to certain police forces!). The police further claimed that they had received credible information that the Bunge was planning further disorderly conduct, that there was a forensic report on the way, that not all witness statements had been recorded so far, and that the arrested individuals might interfere with the investigation and intimidate witnesses if they were set at liberty.

Hon. M.A. Opondo – the Senior Principle Magistrate – refused the police’s request. She relied upon the judgment of the High Court of Kenya in Sudi Oscar Kipchumba vs Republic. In that case, Joel Ngugi J had held, in effect, that, at the first instance, the doctrine of proportionality must be applied to decide a police request for custody. Recall that the third prong of proportionality requires the State to demonstrate that a rights-infringing measure is the least restrictive alternative that is open to the State. Ngugi J had therefore laid down the following double test (paragraph 24):

a. First, the State must persuade the Court that it is acting in absolute good faith and that the continued detention of the individual without a charge being preferred whether provisional or otherwise is inevitable due to existing exceptional circumstances;

b. Second, the State must demonstrate that the continued detention of the individual without charge is the least restrictive action it can take in balancing the quadruple interests present in a potential criminal trial: the rights of the arrested individual; the public interest, order and security; the needs to preserve the integrity of the administration of justice; and the interests of victims of crime where appropriate. By virtue of Articles 21(1) and 259 of the Constitution, the Court must act to aggrandize not diminish the personal liberties of arrested individuals in line with the other three interests. Differently put, the State must demonstrate that there are compelling reasons to deny pre-charge bail while balancing all factors within the complex permutation presented by these quadruple interests and without reifying or essentializing any.

In essence, therefore, three things follow from the double-test. First, that the granting of custody is meant to be the exceptional case, and not the norm. Secondly, that the State bears the burden of showing that custody is the least restrictive option that is open to it; and thirdly, in the analysis, all other things being equal, the judiciary’s task is to expand liberty and not to diminish it.

Indeed, in the application of the standards to the case before him (which was a criminal revision application), Ngugi J went on to note that “the acontextual and simplistic pitting of “public order, peace and security” against the personal liberty interests and autonomy of the Applicant … is a dangerous anti-liberty ethos which was rejected by the Constitution of Kenya.” (paragraph 31) It was dangerous because, at the stage of remand, where nothing yet had been proven against an individual, this logic essentially exempted the State from its duty of maintaining law and order, and instead, placed it upon the shoulders of the accused individuals (by keeping them in further custody) (for a detailed analysis of the judgment, see this article by Joshua Malidzo Nyawa).

Of course, it is one thing for constitutional courts to lay down doctrine, and quite another for courts of the first instance to apply them to concrete cases. It is for this reason that the Hon. M.A. Opondo’s order becomes significant. Applying Ngugi J.’s doctrine to the letter, she observed that:

1. The State had only asserted – and provided no evidence – to substantiate its claim that the Bunge was being funded to spread disorder through Nairobi. Who were these funders? What were the Bunge’s activities? In other words, the moment that the State was asked for specifics – and not generalised, bare assertions – it failed to provide any.
2. The State had claimed that it had “credible information” about the Bunge’s future activities, but had failed to provide the source of the same. While the Evidence Act immunised a police officer from revealing whence information came, it provided no such immunity when it came to the source.
3. As far as the arguments on the forensic report and witness examination went, the State had failed to show why it had not already completed this in the 48 hours that it held the individuals in custody so far.
4. And as far as intimidation of witnesses went, once again, the State had failed to provide specific claims to justify its fears or apprehensions.
5. It was doubtful whether, under the Constitution, it was the Police that had the power to judge an assembly unlawful.

For these reasons, the Hon. M.A. Opondo held that the State was essentially trying to turn the criminal process “on its head”, and that there was no warrant for the “extreme measure” of a further ten-day detention (to those of us in jurisdictions where ten-day remands are granted for the asking, this probably sounds like manna from heaven!).

As we have discussed before on this blog, when applied rigorously, the doctrine of proportionality achieves two things. First, it ensures that if less restrictive measures are available, the State is bound to use them first; and secondly, the form of analysis is such that it requires the State to justify its stand, in specific terms. Through this remand judgment, we can see the power of the doctrine, in the context of core personal liberty: not only was the State unable to demonstrate that continued detention was the “least restrictive alternative”, the moment it was asked to substantiate its justifications for custody with a degree of specificity, the claims fell apart.

The doctrine of Ngugi J, and the approach of Hon. M.A. Opondo – when one thinks about it – should be the norm. The production of an accused individual before a judicial authority is the first occasion that a court has to adjudicate the claims of the State and the citizen; and what is at stake is the most basic of all rights – that of personal liberty. In such a situation, it makes eminent sense for the Court to apply the doctrine of proportionality, and require the State to justify the need for continued custody; it is, after all, only such an approach that gives any meaning to the phrase “one day of the deprivation of personal liberty is one day too many.” No doubt, the text of Article 49 of the Kenyan Constitution – which requires release on bail unless there are “compelling reasons” otherwise – makes such an approach easier to ground within the constitutional text; but ultimately, this is not so much about constitutional text as it is about judicial philosophy, and the approach of judges towards confronting State power and truly protecting the rights of individuals. The order of the Senior Principal Magistrate is an example par excellent of how courts can do just that.

Guest Post: The Arup Bhuyan Review

[This is a guest post by Abhinav Sekhri. It first appeared on the Proof of Guilt blog.]

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Twelve years. That’s about how long the judgments in Raneef [(2011) 1 SCC 784], Arup Bhuyan [(2011) 3 SCC 377] and Indra Das [(2011) 3 SCC 380]—all decided by the same bench—remained good currency. For eleven of those, they remained under a cloud on account of review petitions filed in 2011 by the Union of India and the State of Assam, in which the Supreme Court found some merit in 2014 and decided for the matters to kept before a larger bench. That larger bench has now rendered its judgment, partly overruling the decisions [Arup Bhuyan (Review) – decided on 24.03.2023 (lead opinion by Shah, J. and a concurrence by Karol, J.]. 

For convenience, I’ve extracted the holding from the lead opinion below:

18. In view of the above and for the reasons stated above we hold that the view taken by this Court in the cases of [Raneef, Arup Bhuyan, and Indra Das] taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incited people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organisation there must be an overt act and / or further criminal activities and adding the element of mens rea are held to be not a good law. It is observed and held that when an association is declared unlawful by notification issued under Section 3, which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967. [Emphasis in original]

This post deals with Arup Bhuyan (Review) at three levels. The first level is engagement with the opinions to discern what exactly has been held outside of the concluding paragraph, and how. The second level is a look at judgments which were being reviewed—Raneef, Arup Bhuyan,and Indra Das—to understand the foundational missteps committed in Arup Bhuyan (Review). Finally, the third level zooms out from this particular case to look at the broader landscape of personal liberty and the law. 

What has the Court done in Arup Bhuyan (Review)

The ultimate conclusion in Arup Bhuyan (Review) has been extracted above. Simply put, it means that for purposes of the relevant clauses — Section 3(5) of TADA and Section 10(a)(i) of the UAPA — there is no need for the state to show an accused was an ‘active’ member of an unlawful organisation (the UAPA language) for purposes of the offence. Note that the UAPA today deals with ‘terrorist acts’ differently and far more seriously than it does ‘unlawful acts’ and in question here was the scheme pertaining to the latter. The Court has held that it is sufficient if, after an organisation is declared as unlawful under the statute, that a person continued with her membership of the same. I will come back to just ‘how’ the Court arrived at this outcome. Before that, we need to flag some of the other conclusions arrived at in the opinions. 

First, the leading opinion endorses the Union of India’s submission that a statutory provision cannot be ‘read down’ without giving an opportunity of hearing to the Union as it’s interests stand to be prejudiced by such a verdict. The judgments under review were all ordinary appeals / bail hearings, not constitutional challenges to the provisions, and an exercise of ‘reading down’ of clauses could not have taken place in such proceedings.  

Second, both opinions endorse the view that comparative law can only be used with great care on account of the perceived uniqueness of India’s constitutional regime. It has been held that one of the main problems in Raneef, Arup Bhuyan, and Indra Das was their overzealous reliance upon U.S. cases without adequately appreciating the difference between the two jurisdictions; specifically, the limits crafted upon Article 19(1) by Article 19(2) and 19(4), which seemingly were absent within the U.S. framework. 

This second point about the uniqueness of Article 19 was at the heart of why Arup Bhuyan (Review) read the legal provisions in question differently from the earlier judgments. According to both opinions, and the Union of India, these earlier judgments had completely ignored the import of Article 19(4) which had been amended in 1963 to allow restrictions on the freedom to form associations where it may prejudice interests of the sovereignty or integrity of India. A declaration that an organisation is ‘unlawful’ under the UAPA means that these interests are at stake, making it a reasonable restriction. This perspective was not appreciated in the earlier 2011 judgments.

The process by which a declaration of an organisation as ‘unlawful’ under the UAPA takes place was given great emphasis by the Union, and the Court. It was not an overnight proclamation, but the result of an ‘adversarial’ process  overseen by a sitting High Court judge, where members had the right to appear and object, and in which the ultimate declaration was widely publicised. The offence only punished persons who had been, and continued to be, members.Surely, there could be no imagined prejudice for ‘passive’ members who continued with membership after all these steps were taken under law.

The Many Missteps of Arup Bhuyan (Review) 

Understanding the correctness of the conclusions arrived at in Arup Bhuyan (Review) is impossible unless we go back to the source of the problem — the judgments under review. Proceedings chronologically (not from date of filing but date of judgment) we start with Raneef which was a bail case, where no offence of Section 10 UAPA was involved as per details available in the High Court verdict which was challenged in the Supreme Court in Raneef. 

Why did the argument of membership come up at all? Because the state made it an issue, even as it did not specifically invoke the membership offence instead choosing to go for conspiracy ones under UAPA. An incriminating circumstances raised was that all accused were either members or office bearers of PFI or SDPI which could be confirmed with recoveries made during investigation. Neither PFI nor SDPI were organisations that had been banned at the time, but to set the record completely straight on the issue, both the High Court and Supreme Court observed that merely being a member of some organisation could not lead to the conclusion that the accused was part of a conspiracy to murder hatched by specific people also alleged to be members of the same organisation. 

Next, we have Arup Bhuyan and Indra Das, both being TADA cases with similar facts. The accused was alleged to be the member of a banned terrorist organisation, on the strength of a confessional statement and no other material, and thus convicted under the TADA membership offences [Section 3(5)]. Notably, the TADA offence was not phrased like the UAPA one, and punished any person who was a member of a terrorist organisation — clauses that have been retained for terrorist, not unlawful, organisations under the UAPA as well. 

The Supreme Court in both judgments first concluded that proceeding only on a confession was not good enough to convict a person. But then it turned its attention to the unfairness of the provision in question which seemed to punish mere membership. In Arup Bhuyan the Court observed that even if the state had proven that a person was a member, it had not established that he was an ‘active’ member of the terrorist organisation, and nothing less would satisfy a conviction. It applied this conclusion to the facts in Indra Das as well. It was in this regard that it cited various U.S. decisions and Indian decisions in both Arup Bhuyan and Indra Das, to finally hold in only the latter case that its conclusions would apply to other similar offences which punished mere membership of organisations such as Section 10 of the UAPA.

Having read these three judgments, the fault-lines running through Arup Bhuyan (Review) become starkly apparent. At the outset, it is clear that the offences under Section 3(5), TADA and 10(a) of the UAPA were not identically worded, so a big chunk of the Court’s reasoning regarding the fairness of Section 10 of the UAPA as being a reason to review the 2011 judgments would not apply to Section 3(5), TADA.  

Next, it is plain as day that the judgments did not blindly follow American precedent as they were now being accused of doing, but considered them in light of the Indian landscape. Also, to suggest that the U.S. landscape has no limits to free speech is worse than disingenuous, yet this is the broad generalisation that Arup Bhuyan (Review) subscribes to. 

To show the distance between the U.S. and India, the Court invokes Babulal Parate on the urging of the Union, and conclude that public order could justify pre-emptive strikes against speech. However, looking at a case allowing for preemptive restrictions on certain rights on account of public order such as Babulal Parate in a context of punishing persons for being members without showing anything more, is like using a chainsaw to fix your fridge. 

The reason behind invoking Babulal Parate, and raising a furore around the three judgments not having considered Article 19(4), was because the Court completely misunderstood the question at times in Arup Bhuyan (Review). Nobody claimed, or held, that the legislature is out of bounds creating laws that punish membership of banned organisations on grounds of a perceived danger to the sovereignty and integrity of India. That battle was lost in 1963 and then in 1967. The issues here were of a different order — could I be punished for merely having been a member of an organisation that was banned because it had been found as posing such a threat? Would all members go to jail, because the organisation was banned? 

Key here is another feature which the Court pays surprisingly little attention to — membership is not a defined concept within the UAPA or TADA. We are not dealing with neat lists of shareholders, but a hazy group of people where membership would depend upon perceptions and beliefs. The facts in Raneef, Arup Bhuyan and Indra Das had shown us that proving membership did not need much more than a confession and recoveries of inconvenient literature (even the Communist Manifesto might do). The entire burden of proof at trial would, in effect, stand reversed upon the accused if mere membership became the crime as the state would claim that the fact of continued membership was only within the knowledge of an accused (Section 106, Indian Evidence Act). Which would bring us to a situation where nothing short of a loud denouement of one’s beliefs and memberships would be sufficient to erase any doubts about the matter. Or, as it used to be called during the inquisition, oaths of loyalty.  

By concluding that the offence needed something more than merely being a member, the 2011 judgments had inserted a measure of fairness in line with what the Supreme Court had done in a variety of contexts in the past; none of those judgments being constitutional litigations with the Union of India in attendance, but regular criminal appeals where the liberty of persons was at stake. Foremost among these being the offences punishing possession of contraband, where courts simply read the clause to require that conscious possession must be proven. Even the judgments regarding exclusion of showing any intent or knowledge, such as in Mayer Hans George, required the court to determine whether this was the only justified way to read the statute, on its own terms and its consequences. No effort was made to undertake this exercise in Arup Bhuyan (Review) and the Court simply accepted this contention at face value. 

Is the Glass Still Half Full?

Arup Bhuyan (Review) is sparsely reasoned, sure. But zoom out, and what you see is that this decision is a microcosm of the various contests that the Indian Constitution failed to resolve even as it safeguarded various civil liberties. It never confronted state power head-on, instead adopting an approach where small zones of freedom were carved out from the overarching might of the state to at least allow for the Davids to try and battle Goliath. To call this a balancing approach is farcical, yet this notion of balancing is what has become best associated for the courts themselves when they deal with issues of fundamental rights. In Arup Bhuyan (Review) we get another reminder of just how skewed this balance always was in favour of the state’s interests—many of the judgments relied upon by the Court are from the 1960s—and how much farther it can tilt in times when the popular discourse is rife with ideas of threats to security and sovereignty. This privileging of public interest even under Article 21 is as ominous for the present times as is the alacrity with which the Supreme Court in Arup Bhuyan (Review) has accepted the submission that the Union of India must be heard before a court reads down a statute.  

So why do I say that the glass can still be seen as half full? Because there is still enough life left in Raneef, Arup Bhuyan, and Indra Das and many other judgments to allow the Davids to keep fighting. Since Raneef was not dealing with the membership offence, its observations that mere membership of a banned organisation is not an incriminatory circumstance to establish that I had conspired with other members of that specific organisation to commit crimes, would still stand. And since the injustices are far greater in relation to terrorism offences than those pertaining to ‘unlawful activities’ (both being separate concepts under UAPA), these findings (coupled with those in the more recent judgment of Thwaha Fasal) remain invaluable. Similarly, the observations in Arup Bhuyan and Indra Das that convictions for membership offences will not follow solely on the basis of purported confessions would remain valid and useful to combat eventual prosecutions. Lastly, the Court in Arup Bhuyan (Review) limits its observations to membership of the ‘unlawful’ organisation under Section 10 of the UAPA and not those clauses that pertain to membership of terrorist organisations, where the arguments of mens rea would still be available.   

This is a mightily optimistic reading of the lay of the land. But what is left if even hope is lost? 

Guest Post: Association-Based Offences and the Right to Fair Trial under the UAPA – II

[This is the second in a two-part series by Radhika Chitkara, focusing on association-based offences under the UAPA, on which the Supreme Court has presently reserved judgment.]

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In the previous post, I outlined the scope of association-based offences under UAPA, as set out in the Arup Bhuyan line of precedent, and juxtaposed against state practice at the investigation and pre-trial stages. In a review petition whose decision is presently awaited, the Supreme Court is to determine the correctness of Arup Bhuyan: i.e., whether the scope of criminalization under the UAPA extends to any form of association with a banned organization, or if it is limited to activeassociation with the intent to further their illegal violent activities.

In this post, I look at the implications of an expanded scope of criminalization on the special bail provision in Section 43D(5) of UAPA and the right to fair trial. I argue that criminalizing mere membership or support to banned organizations not only impacts convictions under the law, but equally significantly, denies liberty prior to conviction through the effective bar on bail. This undermines the presumption of innocence, equality of arms, and other fair trial rights. To grasp the true implications of the Arup Bhuyan review, it is important to not read it in isolation, but in the context of the overall scheme of the law and bail jurisprudence under it.

This post proceeds in three parts. The first compares the UAPA bail provision against the CrPC and its effect on the presumption of innocence. The second narrates the manner in which the bail provision has been interpreted to further constrain fair trial rights of the accused, particularly the principle of equality of arms. The final part clarifies the relationship between the definition of association-based offences and fair trial rights under UAPA, such that an expanded reading of such offences effectively forecloses a major avenue for accused to secure liberty through bail. Effectively, this would ensure incarceration until acquittal, whereas the presumption of innocence warrants liberty until conviction.

Bail under UAPA and the presumption of innocence

Under the Code of Criminal Procedure (CrPC), “bail is the rule, jail is the exception”. In light of the fundamental right to liberty, the presumption of innocence as a due process right, and high rates of undertrial incarceration, Supreme Court jurisprudence has increasingly held that judicial discretion should usually be exercised in favour of the grant of bail.

Discretion here is to be guided by the so-called “triple-test”, where bail may be refused only if the accused is (i) at flight risk; (ii) likely to tamper with evidence; or (iii) likely to influence witnesses. This matrix prioritizes the liberty right of the accused, to be burdened only by the needs of investigation and judicial processes. Judges may account for offence-based grounds, such as the gravity or nature of allegations, as only one among other factors.

Contrarily, UAPA encodes an effective prohibition on the grant of bail for offences under Chapter IV and VI (relating to terrorist activities and organizations). Section 43D(5) states:

No person… shall, if in custody, be released on bail…if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (emphasis mine)

As opposed to the needs of investigation and judicial processes, here, offence-based grounds constitute the overriding factor. If this is satisfied, Section 43D(5) again differs from CrPC by removing judicial discretion, and statutorily prohibiting the grant of bail. To trigger this bar on bail, the prosecution need not establish the guilt of the accused, but only satisfy prima facie that the allegations are true.

Consequently, UAPA enables the State to secure indefinite incarceration of accused not upon a conviction based on a beyond reasonable doubt standard following a fair trial, but simply by prohibiting bail on a far lower prima facie standard. It is possible for an accused to be eventually acquitted, but not without spending prolonged periods in custody pending trial, even extending, as in Mohammed Aamir Khan’s case, to a period of fourteen years. It is in this form that anti-terror and other special laws pose a grave challenge to the presumption of innocence, although their constitutionality has previously been upheld by the Supreme Court.

The prima facie standard and the equality of arms

If the State can secure indefinite incarceration of accused not through trial but simply through the prohibition on bail, what does this prima facie satisfaction of truth of accusations entail?

The prima facie standard is not a final determination of guilt. At this stage of bail, the court does not have to adjudicate beyond reasonable doubt the truth of the allegations. The prosecution is also not expected to meet the standard of satisfaction required for a discharge application or the framing of charges under Section 227 and 228 of the CrPC. It must only establish, on “broad probabilities,” that the accused has committed the offence. Here, the truth of the accusation need not be the only reasonable conclusion, but it is sufficient if it is one of the possible conclusions borne out by prosecutorial materials. In this form, the standard falls even lower than that of balance of probabilities expected under civil law.

Section 43D(5) states that this finding of prima facie truth of accusations must be based on the allegations in the FIR, case diary, chargesheet and other materials produced by the prosecution. If there are adequate materials supporting the factual allegations against the accused, such facts must be presumed to be true, and they must be sufficient on their own to disclose the commission of the offence.

In the landmark NIA v. Watali decision, the Supreme Court clarified that the court cannot enter into a detailed and scrupulous examination of these prosecutorial materials, which would be tantamount to a verdict of acquittal or conviction. The court cannot question the admissibility or relevance of these materials, as that is the subject of trial. Principally, therefore, the prosecution can produce inadmissible and irrelevant materials to trigger the bar on bail, even though such materials might be barred from consideration by the Evidence Act at trial. Watali further holds that it is also not open to the accused to present their own materials to rebut or contradict the facts and allegations of the prosecution, and that the court must rely only on the materials produced by the investigative agencies alone.

To summarise, thus, the prosecution need only satisfy the truth of accusations on a prima facie basis to trigger the prohibition on bail. To meet this standard, the court can only rely on investigative materials, in the form of the FIR, chargesheet, case diary etc. It cannot rely on materials produced by the defence to rebut or contradict the allegations of the prosecution. The court must presume the prosecution’s factual allegations to be true, and cannot question the admissibility or reliability of prosecutorial materials. Watali’s interpretation of Section 43D(5) thus heavily stacks the odds in favour of the prosecution, while disabling the accused from effectively defending themselves.

Such an interpretation violates the fair trial principle of equality of arms inherent in an adversarial criminal justice process. This principle requires that parties have a reasonable opportunity of representing themselves “under conditions that do not disadvantage them as against other parties to the proceedings”. In criminal proceedings, given the inherent inequality between the State as the prosecutor and the individual as the accused, equality of arms includes reasonable opportunities for the accused to access and comment on the evidence against them, and to produce witnesses and evidence in their favour under the same conditions as those against them. Watali disables the accused from sufficiently commenting on evidence against them, and from producing evidence in their own favour.

The State is able to justify imposing these disabilities on the accused during bail proceedings as they pertain to the pre-trial stage of the criminal process, and not the trial leading to a final determination of guilt. This is a specious basis, since the prohibition of bail effectively leads to the same disadvantage of mandatory and indefinite incarceration that would otherwise be concomitant to a conviction.

Arup Bhuyan and the right to effectively defend oneself

Given the disadvantages imposed on the accused by Watali, what are the “reasonable opportunities” available to them to effectively refute the prima facie standard under Section 43D(5)? It is here that the definition of offences, falling to be determined under the Arup Bhuyan review, becomes significant.

A review of bail jurisprudence under the UAPA indicates two possibilities of refuting the prima facie standard to secure liberty. The prohibition on bail is triggered under the following conditions: (i) by the prosecution presenting adequate materials to support its factual allegations against the accused, and (ii) these facts, if taken at their face value, disclose the commission of a UAPA offence.

Under the first prong, the accused can challenge the logical adequacy of prosecutorial materials to even prima facie establish the factual allegations.  As the Supreme Court held in Vikram Vinay Bhave, it is still incumbent upon the prosecution to demonstrate the truthfulness of allegations based on the materials cited in Section 43D(5).

[I]f the Court found on such analysis that the accusations were inherently improbable or wholly unbelievable, it would be difficult to hold that a prima facie true case was made out against the accused.

In Bhave, the court did not find reasonable grounds to believe that the accusations against the accused were prima facie true, since the materials disclosed by the prosecution revealed obvious discrepancies. Similarly, in Anand Teltumbde v. NIA, the Bombay High Court individually scrutinised the materials placed on record by the prosecution to determine whether they were sufficient to justify the factual allegations against the accused. In both cases, bail was granted as the prosecutorial failed to discharge even this low burden.

Under the second prong, the accused may accept the adequacy of materials to prima facie establish the factual allegations. However, the accused can challenge whether these factual allegations are sufficient to constitute an offence under the UAPA. To do this, the accused must challenge the scope of criminalization under UAPA. Here, the definition of offences is of utmost significance. So, for instance, in Asif Iqbal Tanha, the Delhi High Court found that the factual allegations may make out an ordinary law and order offence under the IPC, but organizing protests does not fall within the ambit of an unlawful or terrorist activity under the UAPA. On appeal, the Supreme Court upheld bail to Tanha and two others, while also declaring that the High Court judgment was “not to be treated as precedent” by other courts.

That notwithstanding, it is here that the Arup Bhuyan standard of active membership and support has been most impactful. Both Raneef and Thwaha Fasal were decided not in the context of final adjudication of guilt, but upon an application for bail. In the 2012 decision in Jyoti Chorge, the prosecution recovered “publicity and propaganda” literature of a banned organization from the accused. The Bombay High Court found that while these prosecutorial materials disclose some form of association with a banned organization, they do not disclose any participation in terrorist activities. Similarly in Dhawala Rama Dhengale and others, the Bombay High Court granted bail to the accused under the Arup Bhuyan standard as the prosecutorial materials prima facie disclosed membership of banned organization, but not active participation in any terrorist activities. In Sudesh Kedia, the Supreme Court found that payment of extortion money to a banned organization is not tantamount to support through terror funding.

This limited sample of cases reveals the significance of the Arup Bhuyan active membership standard as an avenue to secure bail under UAPA. If the Supreme Court rejects this standard in the review petition, it would substantially foreclose one of the only two prongs offering a reasonable opportunity to the accused to secure their liberty under the law. Combined with Watali, an expanded reading of association-based offences would offer the prosecution an effective walk-over against the accused, until the stage of acquittal by the trial court. If the accused is convicted, they continue in custody to serve their sentence.

It is only by contextualizing the issues in the Arup Bhuyan review against the framework of the UAPA and existing jurisprudence under Watali, that its implications are clarified. Reversing the active association standard is effectively tantamount to foreclosing avenues for bail under the substantive provision in Section 43D(5), although accused may still procure default bail under Section 43D(2) UAPA read with Section 167 CrPC, or under independent grounds of speedy trial as under KA Najeeb. This may well be the final nail in the coffin of the presumption of innocence, right to effective representation and equality of arms under the UAPA.

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* I am grateful to Sahana Manjesh and Akanksha Sharma for their valuable editorial feedback on this two-part series.

Guest Post: On the Bombay High Court granting bail to the Kochhars

[This is a guest post by Abhinav Sekhri, cross-posted from the Proof of Guilt blog, with permission.]

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The Bombay High Court has re-affirmed the most elementary legal position — the mere power to do something does not act as a justification for doing it. That its order of 09.01.2023 directing the release of Deepak Kochhar and Chanda Kochhar by granting them interim bail on this very premise has generated such a buzz is not indicative of any pathbreaking findings made, but on how distant even these elementary legal principles appear when it comes to our criminal process that every such order warrants celebrations within the community of defence lawyers akin to India winning a cricket match. 

Chanda and Deepak Kochhar were named as accused persons by the Central Bureau of Investigation (CBI) in an FIR lodged in 2018. They were not arrested then, and appeared numerous times before the agency (as well as other agencies investigating them) [a useful list of dates begins at page 8 of the order]. On 23.12.2022, they were again present at the office of the CBI for questioning, only this time they were both arrested. The grounds disclosed for their arrest in the Arrest Memo were that (i) they were named as accused persons, and (ii) they were not cooperating with the ongoing probe. 

Without seeming to engage with the sufficiency of these reasons for arrest, the trial court first remanded them to police custody and then to judicial custody. On 27.12.2022, it appears that the FIR, the arrests, remand orders were all challenged before the Bombay High Court. As we already know, going by the premise that the mere power to do something—arrest—does not act as a justification for it, the High Court held that the justifications for the Kochhars’ arrests required scrutiny, and when scrutinised these came up horribly short of passing muster under the law as present under Section 41 of the Criminal Procedure Code 1973 and as had been clarified by the Supreme Court most recently in Arnesh Kumar (2014) and Satender Antil (2022). 

It is likely that the High Court’s specific findings on the insufficiency of justifications behind the arrests will garner most attention. Being named in a case in and of itself was never grounds for arrest, even more so where four years had lapsed between the lodging of a case and the arrest. And in respect of the ‘non-cooperation’ — an idea incidentally also critical to the Satendar Antil judgment — the High Court agreed with the view that cooperation could not be a substitute for ‘confession’, such that when an accused did not sing the tune of an agency she would be labelled as being non-cooperative. On closer scrutiny, arguably more important conclusions become visible that are not headlined in the same manner, as well as some cracks in the reasoning and the obvious limits to this order. 

First, to the conclusions that hopefully other courts can build upon to restore a wall to protect personal liberty. The High Court order does not only advance the basic premise that there must be sufficient justifications for an arrest, but it also indirectly indicates that these justifications must be captured in a public facing document in the form of the arrest memo, and not hidden away in the case diaries where an accused will not have access to them. This is critical, because it is only the arrest memo that is shared with the family upon arrest and, as extracted in the order, the reasons for arrest that are disclosed therein are often unintelligible or party excuses. The High Court’s order stands for the position that given the gravity of the measure in question, full and adequate reasons ought to be recorded and disclosed for the process to be in consonance with the letter and spirit of the law. 

Besides the casting of clearer duties on police, the order also restates a requirement for trial courts to engage with the sufficiency of an arrest when a remand to custody beyond 24 hours is sought. In this case, the High Court could not discern from the remand orders whether the trial court had even considered the issue of the legality of arrest, and it severely reprimanded the trial court for failing to do so. It is not the first order to do so, and the High Court invokes earlier cases to support its view, but the importance of our trial courts discharging their role as the first bastions for protecting our personal liberty — as the late K.G. Kannabiran had said — cannot be overstated. Not only from a broader, socio-political standpoint, but also from a legal remedies standpoint. Where an illegal arrest is sanctified by a remand to custody, the writ of habeas corpus against such an arrest is practically extinguished. 

It is possibly why the Kochhars also did not file a writ only challenging their arrests, but filed an omnibus writ petition challenging the very registration of the case and all executive / judicial action emanating therefrom (a strategy that had also been taken when Arnab Goswami was arrested in an old case, where incidentally the senior counsel for Ms Chanda Kochhar was on the opposite side). Moving an interim relief in such a petition, as opposed to a regular habeas or even seeking regular bail before the trial court, was a strategic call that clearly paid great dividend.   

Then there are the tiny cracks. While the High Court comes down heavily on agencies treating cooperation synonymous with confessions, that happens by the High Court accepting the argument that this was the only possible cooperation left. The High Court did not engage with the idea of cooperation on its own terms. If it had done so, it would have had to square up to the language of Section 41 of the Cr.P.C. which justifies an arrest in cases where it is necessary for ‘proper investigation of the offence’. What is the scope and ambit of this ‘proper investigation’ thus remains unclear, even as it remains clear that it certainly is not the practice of taking custody in the hope of extracting confessions. One imagines that this order will not be the slaying of the non-cooperation dragon after all 

Lastly, the limitations. The offences alleged against the Kochhars were not of the very serious variety — a maximum seven years punishment was prescribed. Within the statutory universe of Section 41, and cases that have interpreted the power to arrest such as Arnesh Kumar, there is a different treatment for these offences. The enumerated list of justifications provided for arrest in such cases does not cover the more serious class of offences punishable with more than seven years imprisonment. One can only hope that the findings on sufficiency of recorded justifications and engagement with them by the trial courts at time of remand is not sought to be limited by future courts using this classification. 

To sum up, The Kochhars were arrested four years after a case was filed against them without any real basis recorded in writing. They could afford to move the High Court during vacations, get an urgent listing and hearing, and get the High Court to remind everyone that personal liberty ought not to be trifled with. What they did is not a route that many similarly placed accused persons can hope to follow, but hopefully the fruits of their labour can be enjoyed and built upon to narrow the gap between the promise of Article 21 and the practices of our law enforcement agencies.    

Once Again, the Basics: The Bombay High Court’s Bail Order in Anand Teltumbde’s Case

On 18th November 2022, a Division Bench of the Bombay High Court passed an order granting bail to Anand Teltumbde, one of the accused in the “Bhima Koregaon Case.” The order is significant, because it is the first time that bail has been granted on merits to one of the “BK-16”, all of whom have been arrested and imprisoned under the Unlawful Activities Prevention Act [“UAPA”]. There have been cases of default bail (Sudha Bharadwaj) and medical bail (Varavara Rao), but so far, all bail applications on merits have been rejected (for example, Hany Babu and Jyoti Jagtap).

The Bombay High Court’s grant of bail to Anand Teltumbde continues the battles around personal liberty on the terrain of the UAPA. This blog has covered these battles in some detail. To recap, section 43(D)(5) of the UAPA statutorily bars a judge from granting bail if there are “reasonable grounds” to believe that the allegations against the accused are prima facie true. As, at the time of bail, the judge will only be considering the prosecution’s version, section 43(D)(5) effectively makes the defence fight with one arm tied behind its back. Furthermore, in the Watali case, the Supreme Court held that courts were not expected to scrutinise the prosecution’s material in great detail, and only make their assessment on the basis of “broad probabilities.” This was akin to tying both of the defence’s arms behind its back, throwing it into the sea, and ordering it to swim for the shore.

Notwithstanding the text of Section 43(D)(5) and the judgment in Watali, some judges have nonetheless been working through the interstices of the law to craft what I have called a “jurisprudence of liberty” in the shadow of the UAPA (see the discussion on this blog in “Back to the Basics” [Delhi High Court], “Staying With the Basics” [Bombay High Court] and “Entrenching the Basics” [Supreme Court]). To recap, this jurisprudence of liberty has two core features:

Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction. This was what the Delhi High Court did with respect to the meaning of “terrorism” in Asif Iqbal Tanha, what the Bombay High Court did with respect to Section 20 of the UAPA in Iqbal Ahmed Kabir Ahmed, and what the Supreme Court did in Thwaha Faisal.

Principle 2: The allegations in the chargesheet 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.

The jurisprudence of liberty, however, is an idea under siege. Other courts and other judges have refused to follow it, preferring instead a jurisprudence of State impunity, where the terms of the UAPA are interpreted extremely broadly, the Court itself plays the role of filling in the gaps in the Prosecution’s cases through inferences against the accused, and cites Watali as an overarching “stay in jail” card (see “Forgetting the Basics“). Indeed, not only is this conflicting jurisprudence present within the same Court and the same case, but at times the same judge has signed on to judgments that reflect both the jurisprudence of liberty, and (one year later) the jurisprudence of State impunity.

Anand Teltumbde’s bail order is important not just for its outcome, but also because, in this ongoing battle, it strikes an important blow for the jurisprudence of liberty. In the High Court’s judgment, one can find the deployment of both Principles 1 and 2, in painstaking detail.

As the judgment records, the NIA’s case against Anand Teltumbde was not that he participated in acts of terrorism, but that he was a high-level intellectual authority within the banned Communist Party of India (Maoist) [“CPI-Maoist”]. The Prosecution argued that Teltumbde was funded by the CPI-Maoist to give speeches abroad and that he brought back incendiary material that he then passed on to the CPI-Maoist through his brother, the (now deceased) Milind Teltumbdge; that he was one of the organising minds behind the Bhima Koregaon event, and therefore complicit in the “larger conspiracy”; and that he regularly provided intellectual succour and support to the activities of the CPI-Maoist. The Prosecution’s evidence for this consisted of (a) a set of documents (recovered from a co-accused, Rona Wilson), many of which were evidently addressed to one “Anand”; (b) a receipt showing transfer of funds from the CPI-Maoist to one “Anand T”; and (c) the testimony of certain witnesses regarding meetings between Milind Teltumbde and Anand Teltumbde.

The Division Bench began its analysis by noting the judgment of the Andhra Pradesh High Court Devendra Gupta, where a set of parameters had been laid down for determining what constituted a “prima facie” case under the UAPA: these included evidence of association with banned organisations, prior convictions for terrorist acts, recovery of explosive material, presence at the event, and a swift arrest after the event (readers will note that most of these are highly specific and particularistic) (paragraph 14). With this analytical framework in mind, the Court turned its scrutiny to the Prosecution’s evidence. It noted that (a) none of the letters allegedly addressed to “dear Comrade Anand” or “Comrade Anand” had been recovered from the possession of Anand Teltumbde himself, and (b) that even if one was to assume that the letters were addressed to Anand Teltumbde, there was nothing in them that showed active membership of the CPI-Maoist, or active complicity in terrorist acts (paragraphs 18.1, 18.2, 18.4.3). For example, at one point, the Court observed:

This letter has not been recovered and seized from Appellant. Assuming at the highest that reference in this letter i.e. ‘brother Anand’ is to the Appellant himself, prosecution needs to show the nexus and link of Appellant with the present crime or any specific overt act. There is no material save and except calling upon us to presume that the word ‘brother Anand’ named in the present letter is a reference to Appellant and as such he is directly involved with the activities of CPI(M). It is to be noted here that, this letter refers to names of 17 persons in all, including “brother Anand”. Some names are also with their phone numbers. Not all of these 17 persons have been indicted in the present crime. (para 18.4.3)

This paragraph is important, as it demonstrates the application of both prongs of the jurisprudence of liberty. What was presented to the High Court was a set of letters – not recovered from Anand Teltumbde – which were addressed to “Anand”, and which – in certain vague and general terms – spoke about his involvement with the CPI-Maoists. At the first level, the High Court refused to fill in the gaps in the Prosecution’s case by simply assuming that “Anand” referred to Anand Teltumbde (indeed, later the High Court would point out that there was more than one “Anand” who was part of the CPI-Maoists (para 18.6). At the second level, the High Court noted that even if – at the highest – the letters were referring to Anand Teltumbdge, the UAPA would kick in only if there was complicity with a specific crime or a specified overt act. Thus, it was not good enough for the Prosecution to engage in a roving exercise seeking to condemn individuals on the basis of their ideology, or generalised suspicion. In that sense, the UAPA’s provisions would have to be construed in a limited fashion, so that they would not end up sanctioning prosecution for thought-crimes.

The High Court similarly found that the evidence for the transfer of funds was lacking. Significantly, wherever there was a gap in the Prosecution’s case, instead of filling it under the umbrella of “conspiracy”, the High Court stressed repeatedly that for it to make the presumptions that the Prosecution wanted it to make, “would require further corroboration and evidence.” In other words, bail could not be denied simply on the basis of suspicion and conjecture (paragraph 18.7.1).

Finally, both aspects of the jurisprudence of liberty were evident in the High Court’s consideration of the witness testimonies: the witness statements contained generic allegations of Anand Teltumbde being an ideological fellow traveler of the CPI-Maoists, but – as the Court noted – they did not establish that he had been with a CPI-Maoist member or specifically met Milind Teltumbde (paragraphs 19 and 20). However, even if the NIA’s allegations were to be accepted, the Court noted that at the highest, this showed that Anand Teltumbde was a member of the CPI-Maoist. Under the UAPA, the maximum term of imprisonment for membership was ten years; the more stringent provisions of the UAPA (for example, Section 18) required the involvement of the accused in a terrorist act (crucially, the High Court held that under section 18, one would have to show conspiracy or abetment to a specific terrorist act). Thus, the Court noted in paragraph 22.2:

Section 20 cannot be interpreted to mean that merely been a member of a terrorist gang would entail such a member for the above punishment [i.e. life imprisonment]. What is important is the terrorist act and what is required for the Court to see is the material before the Court to show that such a person has been involved in or has indulged in a terrorist act. Terrorist act is very widely defined under Section 15. In the present case, seizure of the incriminating material as alluded to hereinabove does not in any manner prima facie leads to draw an inference that, Appellant has committed or indulged in a ‘terrorist act’ as contemplated under Section 15 of the UAP Act.

Significantly, therefore, the Court indicated that there existed a gradation of seriousness even within the UAPA, and that even on the basis of the prima facie case against him, there was no evidence that Anand Teltumbde had committed, or conspired to commit, a terrorist act. The NIA’s allegations of conspiracy, therefore, stood rejected.

Teltumbde, therefore, was granted bail.

Other than the issues around the jurisprudence of liberty that I have pointed out above, there are three further points that I want to make.

First, an important aspect of the High Court’s approach was set out in paragraph 11. While considering Section 43(D)(5) of the UAPA, the Court observed that “this is an extraordinary phenomenon and a deviation from the ordinary Criminal Law. Naturally, therefore the approach to such a case is required to be cautious and careful. By its very nature, the exercise to be undertaken by a Court in relation to this provision is therefore somewhat typical and delicate.” It is this approach that informed the Court’s careful and forensic consideration of the adequacy of the evidence in record, which followed. In this context, it is important to note that there exists another normative tension within UAPA jurisprudence: for one set of courts and judges, the fact that the UAPA exists to deal with serious crimes like terrorism implies that the judiciary should have a reflexive pro-State attitude in such cases, overlook the violation of procedural safeguards (recall the recent Sai Baba order of the Supreme Court) and essentially keep people in jail. For another set of courts and judges, however, the very stringency of the UAPA’s provisions requires courts to be even more vigilant, and consider the facts even more carefully before condemning individuals to years and decades in jail without trial. The Bombay High Court’s judgment belongs to the latter, pro-liberty category.

Secondly, while the High Court’s order is welcome and praiseworthy, it is impossible to ignore – as the Court itself notes – that at the time of the judgment, Anand Teltumbde had spent two and a half years in jail. This is a function of the increasing length of UAPA bail hearings, and indeed the reflexive instinct of trial courts (and in many cases, the High Court and Supreme Court) to refuse bail until a few years of incarceration have passed. Indeed, there is no reason why today’s High Court order could not have been passed by the trial court, at the first time of asking.

And finally, what of the other BK-16 cases? In paragraph 23, the Court attempted to distinguish this case from its denial of bail to Hany Babu and Jyoti Jagtap. While the Court made something of an effort for the former (pointing to various recoveries from Hany Babu), in Jyoti Jagtap’s case, it did not even do that: the Court simply said that “our judgment [in Jyoti Jagtap’s case] speaks for itself”, and that “we do not agree” that the two cases are identical. With the greatest of respect, this is something of a cop-out. The Jyoti Jagtap bench was the same bench as the present one (Gadkari and Jadhav JJ), and as I have written before, the Court’s entire consideration of the evidence in that kind evinced an approach that is the polar opposite from the one in this case: in denying bail to Jyoti Jagtap, the Court did fill in gaps in the Prosecution’s case with presumptions of conspiracy, and did interpret the UAPA’s provisions very broadly (see, for example, the Court’s analysis of criticisms of demonetisation and of the Prime Minister). I respectfully submit that these two judgments cannot stand together: while the Anand Teltumbdge’s judgment deserves appreciation and praise, Jyoti Jagtap’s judgment remains problematic, and it is to be hoped that it will be corrected on appeal.

At the time of writing, the Bombay High Court has stayed its judgment by one week to enable the NIA to appeal to the Supreme Court. We shall, therefore, soon know if Anand Teltumbde will walk free, or whether the Supreme Court will elect to stay this detailed and well-reasoned judgment, and keep him in jail.

Forgetting the Basics: The Bail Orders in Jyoti Jagtap and Umar Khalid’s Cases

In June and October 2021, the Delhi and Bombay High Courts had passed two important judgments on bail under the Unlawful Activities Prevention Act [“UAPA”]. The Delhi High Court’s judgment(s) granted bail to Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal, who were accused of various UAPA offences arising out of the February 2020 Delhi riots. The Bombay High Court granted bail to Iqbal Ahmed Kabir Ahmed, who was accused of criminal conspiracy involving members of the banned ISIS group. The significance of these judgments – I had written at the time – lay in how they articulated a “jurisprudence of liberty” within the stringent confines of the UAPA (see “Back to the Basics” and “Staying with the Basics“). The High Court justices addressed themselves to the fact that section 43(D)(5) of the UAPA – as interpreted in the Supreme Court judgment of Watali – effectively makes the grant of bail impossible, and ensures that people are jailed without trial for years. In response, the Courts formulated two principles that would guide judicial determinations of bail under the UAPA. In a post about the Supreme Court’s (similar) judgment in Thawha Faisal’s case (see “Entrenching the Basics“), I summarised these principles thus:

Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction. This was what the Delhi High Court did with respect to the meaning of “terrorism” in Asif Iqbal Tanha, what the Bombay High Court did with respect to Section 20 of the UAPA in Iqbal Ahmed Kabir Ahmed, and what the Supreme Court has now done in Thwaha Faisal.

Principle 2: The allegations in the chargesheet 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, again, is exhibited excellently in the analysis in the Thwaha Faisal judgment.

At the time, one hoped that these judgments – especially supported by the Supreme Court ruling in Thwaha Faisal – marked the beginnings of a consistent judicial pushback against State and prosecutorial impunity under the UAPA. This was not to be. This week, two other bail judgments – again, from the Bombay and Delhi High Courts – reveal that UAPA adjudication continues to be inconsistent and judge-centric, and that individual liberty is, essentially, subject to the outcome of a judicial lottery. Not only is there inconsistency within the same Court, but – as we shall see – inconsistency in the pronouncements of the same judge within the same Court. Unfortunately, the costs of this inconsistency are measured in weeks, months, and years in jail.

Jyoti Jagtap and the Bombay High Court

In Jyoti Jagtap vs NIA, a division bench of the Bombay High Court denied bail to Jyoti Jagtap, a member of the Kabir Kala Manch troupe. The case arose out of the violent events around the Elgar Parishad march on 31 December 2017. The Prosecution’s case was that Jyoti Jagtap – and the Kabir Kala Manch – had made various provocative speeches and performed provocative plays in the days leading up to the Elgar Parishad, and on the day of the event. The Prosecution argued that the KKM’s actions were tied to a larger conspiracy under the aegis of the banned CPI (Maoist), with the goal of overthrowing the State. The Prosecution also relied upon certain witness statements from 2011 (which, of course, had not been subjected to cross-examination at this stage of the proceedings) to the effect that Jyoti Jagtap had been seen in the forest, and in meetings with Naxalites.

In its analysis, the Bombay High Court held, first, that the witness statements showed Jyoti Jagtap’s “active member” of the banned CPI (Maoist), by virtue of her presence in meetings with Naxalites (paragraphs 9.1 and 9.2), and alleged involvement in arms training; receipts and documents that showed her organisational role in the Elgar Parishad event (paragraphs 9.3 to 9.7); and “incitement of hatred and passion” on the day of the event, which showed that KKM was seeking to “overthrow” and “ridicule” the government (paragraph 9.8). Evidence for this “incitement of hatred and passion” – according to the High Court – included ridiculing the phrase “acche din”, referring to the Prime Minister as an “infant”, and “atrocities on Dalits in modern India.” The High Court then referred to the National Investigative Agency’s account of the internal structure and functioning of the CPI (Maoist), as was recorded in the previous bail order in Hany Babu’s case, and noted that, for these reasons, Jyoti Jagtap’s acts would have to be assessed in the context of the “larger conspiracy” carried out by the CPI (Maoist). The Court held (paragraph 10):

The documents referred to herein above clearly highlights the active role of Appellant in so far as organizing the Elgar Parishad event but more importantly it is the association of Appellant with the prominent members of CPI(M) which is a designated terrorist organization which cannot be lost sight of. (Emphasis supplied)

Bail was accordingly denied.

Let us briefly recall the second of the two principles that I had set out above: “The allegations in the chargesheet 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.” The importance of this principle has already been discussed, and we are now in a position to see how the Bombay High Court’s bail order evidently violates it. The actual “events” in question involve the violence that occurred in the aftermath of the Elgar Parishad event. Admittedly, Jyoti Jagtap was not accused of any violent act. What she had done – allegedly – was to play a role in the organisation of the event, and to perform on the day. But to link her to the violence – and deny her bail – the following inferences (none of which were demonstrably proven) had to be made:

1. That the Elgar Parishad event was a CPI (Maoist) conspiracy, and that the violence was the design of the CPI (Maoist).
2. That Jyoti Jagtap’s prior association with “prominent members” of the CPI (M) – dating back seven years and more – demonstrated her participation in the specific conspiracy set out in point (1). Note that “association” is a very broad term, and indeed, it was for this reason that the Supreme Court in Arup Bhuyan’s case had clarified that, for the purposes of the UAPA, membership meant “active membership”, i.e., incitement to violence; mere attendance at meetings, for example, wouldn’t do. The High Court did not engage with Arup Bhuyan’s judgment.
3. That the speeches and performances on the day were in furtherance of this “conspiracy”, and caused the violent events that followed.

Indeed, in order to fill in the gaps in the Prosecution’s case through inferences, the Bombay High Court resorted to increasingly strained logic, as paragraph 9.8 demonstrates: ridiculing the Prime Minister, his catchphrases, and his policies, statements on Shivaji and Tipu Sultan, and on atrocities against Dalits, were all construed as “inciting passion”, and in furtherance of the “larger conspiracy.” The High Court was forced to do this, because the actual evidence against Jyoti Jagtap, as we have seen, was negligible; thus, the only way to establish the “prima facie” case against her and deny her bail under the UAPA was for the Prosecution and the Court to create a set of inferences that would connect her (innocuous) acts, such as playing an organisational role in the event and speaking at it, to the (actual) events – the violence – through the (unproven) vehicle of a “larger conspiracy.”

But it is in the very nature of an accusation of “conspiracy” that silences are damning: absences in the Prosecution’s case can be explained away on the assumption that the accused is simply a good conspirator who covered their tracks. This is why judicial scrutiny – and the resistance to filling in the gaps through inferences – becomes particularly important. What is happening here can be illustratively compared to dropping a stone into still water. The stone causes a splash, and ripples emanate from the point of contact. The ripples grow in size but lessen in intensity, until the point at which the calmness of the water is restored. If we think of the splash as the event in question, the legal standard articulated in the previous High Court judgments was that you must at least have visible ripple that you’re linking back to the splash (i.e., the link between the event and the accused actor cannot be tenuous beyond a certain degree). What we have in Jyoti Jagtap’s case is someone coming along an hour after the splash, and saying – without demonstrating – that a particular movement on the surface of the water is somehow traceable back to the stone. This is not a sustainable judicial standard.

Umar Khalid and the Delhi High Court

In March 2022, the Sessions Court had denied bail to Umar Khalid, in a case arising out of the 2020 Delhi riots. I had written at the time that the Court’s order was like being a “stenographer for the Prosecution”: the Prosecution’s statements were not checked even for internal consistency, gaps were explained away through inferences (this was especially stark, as Khalid was not even in Delhi when the riots took place), vague witness statements were interpreted to the detriment of Khalid, and any aspect of the case that benefited the defence was not considered on the basis that it was a “matter for trial” (the problems with this last approach have been discussed in some detail earlier).

The Delhi High Court’s judgment upholding the order of the Sessions Judge, is – by and large – a replica of that order; interested readers, therefore, can look at the “Stenographer for the Prosecution” piece for more detailed analysis. Indeed, in paragraph 49, the Court notes that it is in “full agreement with the findings of the Ld Sessions Judge” on the question of appreciation of evidence, and “does not wish to burden this judgment” through reiteration – thus exempting itself from the burden of independent analysis as well. Be that as it may, there are a few parts of the judgment that deserve to be flagged, as they demonstrate something quite similar to the Bombay High Court’s judgment in Jyoti Jagtap: that as the gap between the event and the accused grows larger, the Court needs to resort to an increasingly stretched set of inferences in order to fill it.

These inferences begin in paragraph 52. The High Court notes that, after the passage of the Citizenship Amendment Bill, (a) a WhatsApp group called the “Muslim Students of JNU” is formed, of which Umar Khalid is a member (emphasis mine); (b) the day after, the United Against Hate group conducts an agitation against the CAA, which Umar Khalid attends (emphasis mine), and – allegedly – supports a call for “chakka jam”; (c) another WhatsApp group called “CAB Team” is formed, of which – again – Umar Khalid is a member (emphasis mine). The High Court concludes that therefore, “a collective reading of the events that unfolded on each day after 04.12.2019 cannot be shrugged aside and it cannot be said that nothing incriminating has been.” (emphasis mine) Thus, we can once again see the gap between fact (membership of WA groups and participation in an agitation) and event (riots), a gap that is large enough to drive a coach-and-four through, and this gap is effectively filled by stipulation: the High Court says that all of this is incriminating, without explanation for why it is so. In fact, not only does this gap not seem to bother the High Court, but the Court appears to positively revel in it. In paragraph 55, it notes:

It may be reminded that under the UAPA, it is not just the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity; not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act, within the meaning of section 15 of UAPA. Moreover, under section 18 of UAPA, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act that is also punishable. In fact, even acts preparatory to commission of terrorist acts are punishable under section 18 of UAPA. Thus, the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its existence but the extent of its applicability; but such objection of the appellant is outside the scope and ambit of section 43D(5) of the UAPA. (emphasis supplied)

Quite apart from the fact that the final sentence is borderline incoherent, the entire reason why the Courts exist – and why judicial review exists – is precisely to introduce an element of the rule of law oversight over State action, so that words with boundless scope – such as “likelihood”, “likely to cause”, “of whatsoever nature”, “attempt”, “advocating”, and “preparatory” – are given a clear and precise meaning, and – most importantly – a limit (think of the stone-in-the-water image again). In its reproduction of these words, however, the High Court does the opposite: it uses their fuzzy nature and unclear boundaries as a justification for the inferences that it fills the gap with: in other words, imprecision begets imprecision: in the mind of the Court, the vagueness of the legal language justifies the vagueness of the allegations.

Indeed, the entire judgment is shot through with similar vagueness. In paragraph 57, the High Court says that the fact that Umar Khalid’s speech about Donald Trump was delivered despite permission for it being rejected gives “credibility” to the prosecution’s accusation that this same speech “heralded” the Delhi riots. This is a sine qua non to end all sine qua nons: there is no reference to the contents of the speech (for good reason), but the mere fact that the speech was given in defiance of the administration is used by the Court as a basis for buttressing the prosecution’s accusation that it was meant to “herald” the riots. In the same paragraph, the Court refers to a “flurry of phone calls” between the accused after the riots began; but the only circumstance in which a “flurry of phone calls” after a riot begins becomes suspicious is if you have already decided that the accused were conspirators, and their “flurry of phone calls” was in furtherance of their conspiracy. In all other circumstances, a “flurry of phone calls” between activists in the immediate aftermath of a riot is one of the most natural things imaginable; in fact, it would be silence that would be infinitely more suspicious.

We then come to paragraph 58, which is uncannily similar to paragraph 9.8 in Jyoti Jagtap: having probably realised that its inferential chain stretches credulity in the extreme, the High Court is now forced to look at the actual evidence on record, and make something out of where nothing exists. Thus, the High Court seizes upon Umar Khalid’s words – “inquilabi salam” (revolutionary greetings) and “krantikari istiqbal” (revolutionary welcome) – and finds incriminating material there. In a highly confusing passage that cites Robespierre and Nehru, the Court says that “Revolution by itself isn’t always bloodless, which is why it is contradistinctly used with the prefix – a ‘bloodless’ revolution. So, when we use the expression “revolution‟, it is not necessarily bloodless.”

What? Is the Court trying to say that henceforth, whenever anyone uses the word “revolution”, they have to preface it with the word “bloodless”, otherwise they will be caught and thrown in jail under the UAPA, and denied bail? The very absurdity of this paragraph should make clear that the High Court is clutching at straws here: what it has before it are a set of facts (Umar Khalid’s conduct) that has no conceivable relationship with what actually happened (the Delhi riots); and to establish the relationship, not only does the High Court have to construct an elaborate labyrinth of assumptions and inferences, but also put some of our most common political turns of phrase into a torture rack, until they crack and confess to any meaning the Court wishes them to confess to.

The Court concludes its analysis in paragraphs 62 and 63, where it notes the existence of a “pre-meditated conspiracy” to do a chakka jam and incitement to violence, a “pre-planned” attack, Umar Khalid’s membership of WhatsApp groups and speeches, the “flurry of calls”, and Umar Khalid’s active involvement in the protests against the CAA. As with the Jyoti Jagtap bail order, let us identify the assumptions at work, that the Court needs to fill in the gaping holes in the Prosecution’s case:

1. That calling for a chakka jam logically entails incitement to violence and riots.
2. That membership of WhatsApp groups is indicative of participation in a conspiracy.
3. That a “flurry of calls” after a riot has started – between activists who have been engaged with the issue in question – is indicative of a conspiracy.
4. That Umar Khalid’s involvement in protests agains the CAA is indicative of his participation in a conspiracy to cause riots.

The High Court needs to do all this because – as the evidence showed very clearly – at no point did Umar Khalid call for violence, publicly incite violence, commit violence, or participate in riots. Thus, all we have is membership of WhatsApp groups indicating a vague “association”, a “flurry of calls” that also indicates an “association”, and involvement in protests; the High Court weaves this together into a boundlessly flexible mesh called “larger conspiracy”, and tops it off with a dash of Robespierre and Nehru. Thus, an individual who has now been in jail for two years without a trial is condemned to a further – uncertain – spell in prison, while we still wait for the trial to begin.

Post-script: The Contradictions of Justice Siddharth Mridul

Before concluding, it is important to flag a final point. The two-judge bench of the Delhi High Court that denied bail to Umar Khalid had, as its members, Justices Bhatnagar and Siddharth Mridul. The June 2021 bail judgment in Asif Aqbal Tanha’s case had, as its members, Justices Bhambani and Siddharth Mridul.

Under even the loosest standards of intellectual consistency, it is simply inexplicable how the same Learned Justice can – without further explanation – be party to two bail judgments that not only arose out of the same set of facts, but took polar opposite approaches to the issue. Let us begin with the most glaring and blatant contradiction: in paragraphs 49 – 58 in Asif Iqbal Tanha’s judgment, the bench – of which Justice Siddharth Mridul was a member – gives a narrow interpretation to the word “terrorism” under the UAPA, and notes that the Prosecution’s argument that the anti-CAA protest was designed to threaten the foundations of the nation is based on “inferences”, and that therefore, there is prima facie no case made out of terrorism, or conspiracy, or the commission of acts “preparatory” to terrorism. In paragraphs 62 – 67 of Umar Khalid’s judgment, the bench – of which Justice Siddharth Mridul is also a member – explicitly notes that the anti-CAA protest was not an “ordinary protest”, and then goes on to argue how the protests and the riots were linked, and how it all constitutes a terrorist act. How can the same judge simultaneously appear to believe both X and not-X? And if the same judge has changed his mind, and now believes not-X where at one point he so firmly believed X that he signed a judgment to that effect, are we not owed the courtesy of an explanation? Walt Whitman might claim the luxury of contradicting himself because he contains multitudes, but it is not open for a High Court judge to contain contradictory multitudes, at least not while he sits in his official capacity.

Similarly, in paragraph 35 of the Natasha Narwal order (which accompanied the Asif Iqbal Tanha order), the High Court bench – of which Justice Siddharth Mridul was a member – noted that “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.” In the Umar Khalid judgment, as we have seen, the bench – of which Justice Siddharth Mridul is also a member – dispenses with the need for any “specific or particularised” allegation at all, going – instead – by membership of WhatsApp groups and “inquilabi istikbal” to justify the denial of bail. Once again, the two approaches to the issue are simply irreconcilable.

It is one thing to have a polyvocal Court that speaks different tongues (although that is problematic enough). But it is quite unheard of to have a polyvocal judge. We can, perhaps, only shake our heads at this marvel, and agree with Hamlet when he wisely said, “there are more things in heaven and earth than our dreamt of in your philosophy.”

Conclusion

The judgments in Jyoti Jagtap and Umar Khalid show that the Courts continue to be sites of contestation when it comes to the UAPA, State and prosecutorial impunity, and under-trial incarceration. These two judgments belong to the “executive Court” tradition, where the language of the Court resembles – and often goes beyond – the language of the executive. In UAPA bail cases, the executive Court’s judgments are marked by how judicial reasoning fills in the gaps in the Prosecution’s case with inferences and assumptions, and innocuous and political legitimate forms of dissent are rendered illegal by transplanting them into a “larger conspiracy”, and how the issue of the conspiracy itself remains an assumption. As we have seen, however, this is not the only way under the UAPA: the 2021 and 2022 bail judgments – that also come from the Bombay and Delhi High Courts – show how a judiciary that is sensitive to the claims of individual liberty can act under the confines of the UAPA. Much, therefore, will depend upon which of these two approaches, over time, finally transforms into “settled law”: in the meantime, each individual case represents an important site of the legal and constitutional struggle against the UAPA’s entrenchment of State impunity.

The ConCast: Episode 3, Part 2 (31 July 2022)

In Part 2 of Episode 3 of The ConCast, Abhinav Sekhri and I continue our discussion: we talk about Mohammed Zubair’s arrest, and what the events between his incarceration and his release tell us about how the Constitution protects – or fails to protect – the individual from the State.

The Podcast is available to listen below, and also on Podbean Google Podcasts, Apple Podcasts, and Spotify.

Selected References:

State vs Anil Sharma.

P. Chidambaram vs Directorate of Enforcement.

State of UP vs Mohammed Zubair (Sitapur bail order).

Coverage of remand hearing before the Mgaistrate’s Court, Patiala House.

Coverage of the bail hearing before the Magistrate’s Court, Patiala House.

Mohammed Zubair vs State of UP (interim bail order).

Mohammed Zubair vs State of UP (extension of interim bail).

Mohammed Zubair vs State of UP (no precipitate action order).

Mohammed Zubair vs State of UP (Supreme Court bail order).

The ConCast: Episode 3, Part I (30 July 2022)

The ConCast is back! In this Episode, Abhinav Sekhri and I look at the Supreme Court’s PMLA judgment, the interface between criminal law and the Constitution, and we talk about why criminal lawyers are a bit like Leonard Cohen.

The Podcast is available to listen below, and also on Podbean, Google Podcasts, Apple Podcasts, and Spotify.

Select References:

Prevention of Money Laundering Act, 2002 [“PMLA”].

Vijay Madanlal Chaudhary vs Union of India [“PMLA Judgment”].

Abhinav Sekhri, “Of Old Wines in New Bottles: The Judgment in Vijay Madanlal Choudhary – Part One.”

Abhinav Sekhri, “Old Wines in New Bottles?: The Judgment in Vijay Madanlal Choudhary – Part Two.”

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Peter Alldridge, What Went Wrong With Money Laundering Law? (Palgrave 2015).

Peter Alldridge, Money Laundering Law (Hart 2003).

United Nations Convention Against Corruption.

United Nations Convention Against Transnational Organised Crime.

Financial Action Task Force (FATF) Report on India, 2010.

FATF Follow-Up Report on India, 2013.

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Forfeiture Act of 1859.

Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS”].

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Tofan Singh vs State of Tamil Nadu.

Nikesh Tarachand Shah vs Union of India.

Ramanlal Bhogilal Shah vs D.K. Guha.

State of Bombay vs Kathi Kalu Oghad.

Satender Kumar Antil vs CBI

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Abhinav Sekhri, “Confessions, Police Officers, and S. 25 of the Indian Evidence Act, 1872.”

Abhinav Sekhri, “Not so Civil: The Money Laundering Act and Article 20.”