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

[This is a guest post by Kieran Correia.]


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


[This is a guest post by Bharat Harne.]


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

UAPA – A Tool of Oppression

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

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

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

A Few Concerns

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

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

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

Conclusion

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

The Unwholesome Servility of the Kerala High Court

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

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

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

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

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

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

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

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

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

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

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

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

Ein volk, ein reich. Indeed.

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

Oh, wait. That already happened.

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

[This is a guest post by Nitika Khaitan.]


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

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

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

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

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

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

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

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

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

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

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

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


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

Imprisonment by Metaphor: The Safoora Zargar Bail Order

“… when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire.”

 

When a Court needs to rely upon metaphor instead of law to justify keeping an individual in prison, it is perhaps time for the justice system to take a long, hard look at itself. The Order passed today by a District and Sessions Judge at Patiala House, New Delhi, denying bail to Safoora Zargar, an accused in what has colloquially come to be known as the “Delhi riots case”, is a deeply disturbing one. It is disturbing because it takes the Unlawful Activities Prevention Act [“the UAPA”], a law so stringent that it precludes judges from granting bail if even a “prima facie” case is made out, and then stretches its provisions from one side, and the facts from the other, to ensure that the prima facie case is made out. In the process, what it effectively does – as we shall see – is criminalise the exercise of one set of constitutional rights (the freedom of speech and expression), and deny the exercise of another (personal liberty).

A close reading of the bail order reveals the following:

  1. Taking only the Prosecution’s case (as this was a bail hearing), there is evidence that there existed a “conspiracy” to block a road, which the accused was involved in (the role of the accused in this “conspiracy” – even prima facie – is not spelt out, only some WhatsApp messages and disclosure statements are referred to).
  2. That “one cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and such a magnitude that it would lead to disorderliness and disturbance of law and order at an unprecedented scale.” The Order does not clarify what “unprecedented scale” means. It does not clarify whether the “unprecedented scale” refers to the same “conspiracy” referred to in (1), or whether it refers to something else; if the latter, the Order does not clarify how the participation of the accused was deduced in that separate “conspiracy”; if the former, the Order does not clarify the link between the “conspiracy” to block the road and its “unprecedented scale”, in a country where blocking roads happens every second day.
  3. That although there was no evidence of the accused committing any act or making any speech that instigated violence, nonetheless, as there existed a “conspiracy”, nonetheless “when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire”, and that consequently, the “acts and inflammatory speeches of the co-conspirators are … admissible against the accused.” Now, it is unclear what the “acts” are, as the Order never mentions them; it is also unclear what the “inflammatory speeches” are, as the Order does not mention them either.

The lynchpin of the Order, therefore, is a prima facie finding of a “conspiracy”, in specific terms, to “block a road.” This conspiracy rose to an “unprecedented level” – we are not told how. But the fact that the accused is also – prima facie – one of the conspirators (regardless of specifics, because this remains a prima facie appraisal), meant that ipso facto the “acts and inflammatory speeches” (we are not told which) were attributable to her. It should be immediately clear that such an approach casts the net of criminality so wide, that just about anyone can be brought within its ambit. At the threshold level, it dispenses with the gravity requirement needed to trigger the UAPA, by failing conspicuously to specify how “blocking a road” reaches that threshold; at the more substantive level, upon a prima facie finding of a “conspiracy”, it dispenses with the need to show any causal connection between the accused and the events in question.

This would be problematic for acts (which the accused didn’t commit) as well, but when it comes to “inflammatory speeches” (which the accused didn’t give), it becomes even more problematic. This is because, recognising the problematic character of laws such as the UAPA which make the grant of bail effectively impossible, both the Supreme Court (in Arup Bhuyan, while examining the similarly-worded TADA) and the Bombay High Court (in the Kabir Kala Manch cases) have narrowly interpreted the substantive offence, limiting it to cases involving the incitement of violence. This is, indeed, nothing new: going back to the field of metaphors, as the Supreme Court held in S. Rangarajan, the proximity between speech and consequence needs to be like that of a “spark in a powder keg” for criminality to be imposed.

Now, the image of a “spark in a powder keg” suggests a relationship of immediacy and inevitability. The metaphor chosen by the Sessions Court on the other hand – that of playing with “embers” that the wind then “carries” is the exact opposite of a “spark in a powder keg”. The wind can carry embers as far, and in any direction, that the State or the judge might please; what this effectively does is do away with any causal requirement between speech-act and consequence. Such a doctrine, therefore, buries the fundamental right to free speech: if there is no need for a causal requirement between speech-act and consequence, anything can be criminalised, taking us directly into the territory of thought-crimes.

A reading of the Order, therefore, makes it clear that insofar as both the law and the facts stood in favour of bail, the Court got around the first barrier by replacing legal doctrine with a metaphor of its own invention, and vaulted the second barrier by replacing an accounting of the facts with a set of adjectives (“unprecedented scale” and “inflammatory speeches”) that spared it the necessity of an explanation. In this way, the law was stretched from one side, and the facts from the other, and they met in the middle to make out a prima facie UAPA case.

This prima facie case was then used to justify keeping a pregnant woman in an overcrowded prison in the middle of a nationwide pandemic. What that says about the state of the justice system is best left to the readers’ judgment.

Coronavirus and the Constitution – IX: Three Curious Bail Orders

On the 3rd of April, a Supreme Court bench of L. Nageswara Rao and Deepak Gupta JJ, passed a brief order directing “interim stay of the directions in paragraph 15 and 16 of the order dated 31.03.2020 in S.B.Criminal Miscellaneous Second Bail Application No.17767 of 2019.” The case arose out of the High Court of Rajasthan – and extraordinarily – involved the High Court (through its Registry) appealing to the Supreme Court against an order passed by its own judge

What warranted this bizarre situation? On 31st March, a single judge of the Rajasthan High Court passed an order effectively holding that bail applications and applications of suspension of sentence could not be heard during the lockdown period, as they did not constitute “extremely urgent matters.” The Single Judge noted that (a) sending notice via police personnel (in cases of bail applications under the SC/ST Act) would increase the risk of Covid-19 spreading; (b) as public transport had been shut down, police personnel could not be expected to use their private vehicles to serve notice; (c) the complainants would find it difficult to engage lawyers if they wanted to oppose bail; (d) bail orders would have to be sent to the courts below, and sureties would have to appear; consequently, according to the Court, “the release of one accused or convict shall risk the life of many and would adversely affect the measures taken by the State for complete lockdown.” Noting further that on a report from the Director-General it was clear that there was no “overcrowding” in prisons and that there were regular medical check-ups, the Court directed that no bail or suspension of sentence matters be listed until the withdrawal of the lockdown.

Now, it is important to note that by directing that no bail or suspension of sentence matters could be listed for hearing before the lockdown ends, what the Single Judge effectively did was to judicially suspend Article 21 of the Constitution for the class of under-trials and convicts within the State of Rajasthan. Note that, after the passage of the 44th Amendment, this is something that not even the government is allowed to do, even if it formally declares an Emergency (which, in this case, it hasn’t). Interestingly, there are some very direct parallels between the Single Judge’s order and the judgment in ADM Jabalpur: in ADM Jabalpur a specific argument had been made that the suspension of the remedy of habeas corpus during the Emergency amounted to the effective erasure of Article 21, since without a remedy, there was no question of the right being in existence. Justice Beg dismissed the argument on the sophistic basis that the right remained in existence, and it was only the ability to enforce it that had been kept in abeyance. ADM Jabalpur stands overruled, but – as we have seen too often in the recent past – its underlying logic has not gone anywhere.

While the Supreme Court – as noted above – (mercifully) stayed this grossly illegal order, on the very same day, a Single Judge of the Bombay High Court passed a similar order, citing similar reasons in order to refuse to entertain a bail application until the end of the lockdown period. Indeed, he went even further, noting that the “mere fact that the accused is undergoing either pre-trial or post-trial detention, does not warrant entertainment of the regular bail application on the occasion of Lockdown declared by the State.” The Court went on to hold that an individual released on bail might infect other people in his or her attempts to get back home, and thereby defeat the purpose of the lockdown and of social distancing.

Both the Rajasthan and the Bombay High Courts, in essence, cited administrative difficulties in enforcing bail orders to justify refusing to hear bail applications altogether, during the lockdown period. As I have indicated above, these orders are wholly illegal, as they amount to a judicial suspension of Article 21 rights. They also reflect a deeply distorted judicial approach to fundamental rights: the Bombay High Court openly declared that the “mere fact” that an individual was in detention (and thereby deprived of liberty) was not a serious enough reason for “urgency”; thus, for all the sermonising that the Higher Courts engage in when it comes to Articles 14, 19, and 21 being the “golden triangle” of the Constitution, when it comes to the crunch, it is bail applications that are the first to be consigned to the scrap heap as collateral damage during the lock-down, on grounds of administrative difficulties (indeed, if transport for “essential services” is permitted during the lockdown, does not the enforcement of constitutional rights count as an “essential service”?) . The Higher Courts have also, over the years, expanded the scope of “life and personal liberty” to include all manner of things; but when it comes to the heart of that constitutional article – actual physical bodily liberty, the stark, literal difference between being in jail and being free – the courts now turn around and tell us, effectively: “no big deal.”

As I had mentioned in a previous post, during the course of South Africa’s 21-day lockdown, Chief Justice Mogoeng issued a Directive specifying that subordinate courts would remain open for urgent matters including “bail applications and appeals or matters relating to violations of liberty, domestic violence, maintenance and matters involving children.” It is interesting to note that in CJ Mogoeng’s Directive, bail applications come first in an inclusive definition of what might constitute an “urgent matter”. I would respectfully suggest that a clarification from the Supreme Court on similar lines would go a long way towards ensuring that issues of personal liberty are not tossed aside during the lock-down period.

Such a clarification would also – it is hoped – prevent orders of the kind issued by the Bombay High Court today, where bail granted by a lower Court was stayed (one wonders, if bail matters themselves are not “extremely urgent”, how an application to stay a bail order is, but be that as it may). The Sessions Court had granted bail to two IL&FS directors on the basis of their advanced age, and the threat of Covid-19. One of the arguments made by the State before the High Court, it appears, was that the State High-Powered Committee had only recommended the release of offenders who were facing sentences of below seven years (which these two directors were not). However, surely the fact that offenders of a certain category should be granted automatic bail does not preclude a Court from applying its own mind and allowing a bail application in other cases! In other words, it appears that the fact that the Supreme Court and the High Powered Committee have recommended the release of a certain category of offenders because of Covid-19, that is now being made the basis of arguments that the Courts should automatically refuse bail to offenders who fall outside that category. This, it hardly needs to be said, is a very dangerous path for the law to take.

Worldwide, the outbreak of Covid-19 has triggered serious thinking and reflection about many of the social practices that we take for granted, including modern society’s obsession with incarceration, and our overflowing prison populations. It would be a pity indeed if the response of our courts was, instead, an even lesser regard for personal liberty, and an even more cavalier attitude towards the intersection of pandemics and mass incarceration.

NDPS and the Rise of Punitive Constitutionalism

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


Among the many colonial holdovers that continue to persist in our post-colonial legal framework, there is one that stands out as particularly egregious. In a series of “special criminal laws”, there is a provision that – in effect – prohibits a judge from granting bail to an accused unless that judge has “reasonable grounds to believe” that the accused is not guilty. This provision is found, for example, in the Unlawful Activities Prevention Act, in the Narcotic Drugs and Psychotropic Substances Act, and – until it was struck down by the Supreme Court – in the Prevention of Money Laundering Act.

This provision is repugnant to all notions of personal liberty, and it should be easy to see why: it effectively makes the grant of bail next to impossible. An adverserial legal system is premised on the assumption that in a case of competing narratives (i.e., every legal case), the “truth” can be known only when both sides have had a chance to contest each other’s version. The law of evidence – with its focus on cross-examination – is geared towards achieving this: through a detailed set of rules, it affords to both prosecution and defence an opportunity to test each others’ cases, bring out contradictions and conflicts, test the credibility of witnesses, and so on.

An application for bail is not, in principle, about truth or falsehood. In very simple terms, the basic logic of bail is that because the criminal justice system is premised upon the idea of “innocent until proven guilty”, it is presumptively wrong to keep a person in jail until the outcome of their trial – i.e., until a definitive finding has been returned on their guilt or innocence. This is why – traditionally – the considerations that are supposed to weigh with a Court in deciding to grant bail are the potential harms that might accrue from letting an accused out pending trial (he might, for example, flee the jurisdiction, or – if he is a powerful person – intimidate witnesses), measured against the core value of personal liberty (admittedly, this has been watered down substantially over the years, with the “nature of the offence” often playing a dispositive role in courts’ decisions whether or not to grant bail).

Consequently, prohibiting a judge from granting bail unless she is reasonably convinced that the accused did not commit the crime, takes a sledgehammer to the criminal justice process. It requires a judge to take a call on guilt or innocence at the beginning of, or in the middle of, the trial process, without all the information that she needs to do that. In practice, it invariably benefits the prosecution: first, in its very terms – it requires the judge to reach a finding that there is a reasonable likelihood that the accused did not commit the crime, as opposed to a finding that he did. Proving a negative is always substantially more difficult than its opposite. And secondly, it is slanted towards the prosecution because at the time of bail applications, the judge – in the normal course of things – effectively has before her only the Prosecution’s version (the FIR and the chargesheet). The defence may controvert it, but without the opportunity to attack the Prosecution’s case in the course of trial, at the best of times, it will simply be a clash of two rival versions. In such circumstances, a judge can hardly come to a finding against the Prosecution, unless the Prosecution’s own case is so riddled with inconsistencies, that it collapses under its own weight (it has been known to happen).

While such provisions might potentially be defensible in a legal system where trials are completed quickly, in the Indian justice system, where trials take years, they simply cannot be defended. They enable incarceration for years on end (recent UAPA cases have involved people being jailed for over a decade before being found innocent), without any judicial finding of guilt.

What do the Courts do in such a situation? One solution, of course, is to hold that such provisions are unconstitutional (which Nariman J. did, in a judgment on the PMLA). If Courts cannot – or are not willing – to do that, then the other option is to interpret the law narrowly, and in favour of the accused. The logic of this is simple: the more draconian the law, the more it impacts personal liberty, the more cautious a Court must be in interpreting it. A good example of this is the Bombay High Court’s bail judgments in the Kabir Kala Manch cases: Justice Thipsay interpreted the substantive provisions of the UAPA narrowly, in order to hold that on its own materials the Prosecution had failed to make out even a prima facie case for guilt. Consequently, he granted bail even within the constraints of the section.

On a different note, in a series of detailed and brilliant judgments, Justice Rajbir Sehrawat of the Punjab & Haryana High Court – after noting many of the basic arguments highlighted above – held that in certain statutes condition in question would not be “mandatory” for a Court to follow, while in an NDPS case, held the arresting officer to strict compliance of the procedural requirements under the statute – and granted bail as they were not followed.*

The judgments of Thipsay and Sehrawat JJ from the High Courts of Bombay and Punjab & Haryana show that even under draconian statutes, Courts have interpretive wiggle room to ensure that the individual rights are not entirely effaced by the logic of “reasons of State.” It is in that context that the judgment of the Supreme Court in State of Kerala v Rajesh, delivered yesterday, is disconcerting and disappointing. Handed down by a bench of Ajay Rastogi and Indu Malhotra JJ., this judgment swings the pendulum the other way, holding that in NDPS cases, there cannot be a “liberal” approach to bail (it is unclear what is meant by the word “liberal” here). Moreover, the judgment then holds, in paragraph 21:

The expression “reasonable grounds” means something more than prima facie grounds.  It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.  The   reasonable   belief   contemplated   in   the   provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.

 

In other words, the Court holds that before the Defence has even had a chance to fully controvert the evidence against the accused, there must be a finding of “substantial probably cause” that the accused is innocence. In other words, this finding must – to all effects and purposes – be made on primarily on the basis of materials adduced by the Prosecution. But how is this ever going to happen? If the Prosecution, for example, has listed three witnesses who saw me commit a crime, until the time I can cross-examine them to bring out the inconsistencies in their testimonies – something that happens at an advanced stage in the trial – how can I ever establish “a substantial probable cause” to believe that I am innocent? If the judgment is followed in letter, therefore, it effectively means that granting bail is almost impossible wherever there exists such a section – or at least, requires substantial ingenuity from High Court judges hearing such cases.

I call this form of reasoning “punitive Constitutionalism”, and it has been on the rise at the Supreme Court of late. Punitive constitutionalism operates on the assumption that the Constitution is not a charter of freedom or emancipation, but a document meant to discipline a recalcitrant or troublesome society. “Punitive constitutionalism” makes rights contingent on what the Court considers “good behaviour” (witness the Chief Justice refusing to hear cases until “violent protests” stop), invents new ways to whittle down rights against the State (witness what was done with habeas corpus in Kashmir), views every accused as a potential criminal rather than innocent until proven guilty, and sees procedural safeguards as impediments to an efficient criminal justice system rather than as essential safeguards of liberty. It is, ultimately, a school of thought that is closely allied with the idea of “executive Courts” – i.e., a Court that sees itself as part of a joint project with the Executive (however defined), rather than the institution that stands between the citizen and the Executive.

It remains to be seen whether this drift will continue in the near future.


(Thanks to Gautam Khazanchi for bringing these judgments to my attention.)

The Kanojia Bail Order: Two Constitutional Issues

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

[First published here. Reposted with permission.]


In this blog post, Abhinav Sekhri has lucidly highlighted some of the systemic issues around the journalist Prashant Kanojia’s arrest and subsequent release on bail: in particular, the heavily politicized character of the police forces, and the structural reasons why Magistrates – the first line of defence in the fight for civil rights – too often act like postage stamps when it comes to confirming remand orders. In this post, I want to approach the issue from another angle, focusing on the Supreme Court. I will argue that the Court’s bail order is an extraordinary one, departing from ordinary procedure, and can only be justified if its underlying jurisprudential basis is an extraordinary emphasis being placed upon freedom of speech and personal liberty. While the Court does not spell this out in the order, it is – as I will argue – necessarily implied; but at the same time, it will have value only if it is now applied across the board and uniformly, in cases of this kind.

Recall that Kanojia was arrested by the UP police for some tweets “defaming” the Chief Minister of UP, and others that allegedly “insulted Hindu gods and goddesses” (the latter allegation was added subsequently, presumably after the UP police discovered that out of the two criminal provisions in the FIR, criminal defamation was non-cognisable – making the arrest illegal – and that not only had they erroneously invoked Section 66 of the IT Act instead of 66A, but 66A itself had been struck down as unconstitutional four years ago). In response, Kanojia’s wife moved the Supreme Court through a habeas corpus petition under Article 32 of the Constitution. Crucially, however, by the time that the case was heard by the Supreme Court, Kanojia had been produced before a Magistrate, who had remanded him to custody until 22 June. This meant that effectively the petition was no longer challenging Kanojia’s arrest but a judicial order of remand.

In this context, there were two important procedural questions that arose. The first was whether a habeas corpus petition was maintainable against a judicial order (as opposed to the more standard set of cases where habeas corpus challenges an illegal arrest); and the second was whether, as a matter of judicial propriety, the Supreme Court should have heard the matter under Article 32, when the High Court of Allahabad had not been approached by way of Article 226 proceedings.

 Maintainability

It is important to (very briefly) recapitulate the basics. The writ of habeas corpus – as everyone knows – was evolved to protect individuals against illegal detention, by forcing State authorities (in whose custody they were) to produce them in court. The State would then have to prove that the detention was legal; if it could not do so, the individual would be set free.

This makes it immediately clear that by definition, the habeas corpus remedy is directed against the Executive. However, where constitutional procedures under Article 22 have been fulfilled – i.e., the arrested individual has been produced before a Magistrate within 24 hours, unless the arrest has been made under a preventive detention law – at that point, a judicial authority has been seized of the matter. If the judicial authority then directs the accused to be remanded, the deprivation of his liberty is no longer courtesy of the Executive, but has received judicial imprimatur. Ordinarily, then, a habeas corpus remedy – through which the writ courts can be approached directly – will not lie; the accused must take their chances through ordinary proceedings, presumably under Section 439 of the CrPC. .

Over the years, however, the Supreme Court has carved out a very narrow set of exceptions to this rule. The position of law was summed up most recently in March 2019, in CFIO v Rahul Modi (thanks to Abhinav Sekhri for directing me to this case), where – on a survey of precedent – the Supreme Court reiterated that a habeas corpus petition against a remand order would not lie unless the Magistrate had acted without jurisdiction or if the remand order was “without jurisdiction or passed in an absolutely mechanical manner or wholly illegal” (this formulation comes from Manubhai Ratilal Patel v State of Gujarat). The basic idea appears to be that if the Magistrate acts in a way that cannot be described in any sense as “judicial”, their order is no better than arbitrary executive detention, and can therefore be challenged through habeas corpus.

It should now be obvious that, in the context of this high threshold, the Supreme Court’s finding that the habeas corpus was maintainable necessarily depended upon its finding that the Magistrate’s order of remand was “wholly illegal” or had been passed “absolutely mechanically” (jurisdiction was not an issue here). The Court, however, made no mention of whether the remand order had been passed “mechanically” or not; what it did say was that it was granting bail because of the “glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media”, and in view of the “excessiveness of the action taken.”

Although Justices Banerjee and Rastogi did not elaborate further, our discussion above should make it clear that the Court’s order rests upon the necessary inference that freedom of speech and personal liberty are such critical constitutional values, that the “deprivation of liberty” for a pure speech offence (“… putting up posts/tweets on the social media” (sic)) would ipso facto be presumptively illegal. Notice that the Court did not qualify its order in any way, or dilute it, by making observations about the character or the nature of the speech in question. Instead, the Court noted that “the fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.”

In other words, therefore, it necessarily follows from the Court’s order that granting custody for pure speech offences is illegal and unconstitutional (of course, this does not include cases involving an ongoing incitement to violence or public disorder, because in those cases it is no longer a pure speech offence – but it does involve cases of defamation, “hurting religious sentiments”, obscenity and the like). It is perhaps a measure of how far we have drifted from the promise of the Constitution that this eminently sensible and reasonable proposition today sounds almost odd to the ears. Readers will recall how, in a similar case, another bench of the Supreme Court told an individual that “jail would be the safest place” for him, for offending religious sentiments.

Article 226

The second issue was not one of formal maintainability, but of propriety. Even under writ proceedings, there is no doubt that it would have been more appropriate for habeas corpus proceedings to have been filed before the Allahabad High Court, instead of leapfrogging it to come straight to the Supreme Court. Here again, the Court noted that:

As a matter of self imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media.

Here again, what seems to have particularly weighed with the Court was that Kanojia had been unduly deprived of his personal liberty – and by the time the High Court could be approached and pass orders, this violation would remain an ongoing one. Once again, this is an approach that places an extremely high premium on personal liberty – where even an hour spent in custody is a grave infringement of rights that must be taken with utmost seriousness – and is keeping in with the finest ideals of the Constitution. If followed consistently, it would transform the existing situation – especially, for example, with regard to under-trials who spend years languishing in jail by virtue of provisions such as Section 43(D)(5) of the UAPA.

Conclusion

An American legislator once famously said: “If I let you write the substance and you let me write the procedure, I’ll screw you every time.” Some of the most significant legal developments take place not through sweeping substantive changes to law, but through subtle, almost unnoticed procedural evolution. The Supreme Court’s brief bail order in Kanojia’s Case is an order that, in the manner in which it engages with procedure, has the potential to transform substantive constitutional law and jurisprudence, towards a more rights-protective direction. However, so far it remains only potential: this is because although the substantive issues necessarily flow from the procedural findings, they have not been specifically spelt out in the judgment (and understandably so). Thus, while Justices Banerjee and Rastogi ought to be applauded for the verdict – and for what it entails – it is now the task of the Supreme Court, the High Courts, and the lower courts to take this forward and make it truly meaningful.

Guest Post: Acquitted but not yet Free – the Constitutionality of Section 437-A Cr.P.C.

(This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt blog with permission.)

The Criminal Procedure Code 1973 [Cr.P.C.] was subjected to significant amendments in 2009. The law on arrest was drastically altered following Supreme Court admonition, and victims were given a real foothold in the criminal process for the first time. Amidst all this, a provision was added to the section on Bail in the Cr.P.C.: Section 437-A. What does it say?

Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months [Section 437-A(1)]

Through this post, I will try and convince the reader that Section 437-A Cr.P.C. is unconstitutional. The post first cursorily explains the concept of bail and engages with the problematic consequences flowing from the text of Section 437-A. It then discusses the origins of the provision, before moving on to argue that it is contrary to Articles 14, 19, and 21. The last section considers that there are two options, reading down Section 437-A or striking it down completely, and I support the latter course.

Understanding Bail and the Text of 437-A
One often comes across “bail” in context of criminal trials and investigations. What does this mean? In such scenarios (and others), where a person is in the crosshairs of the legal system, the law wants to ensure that legal proceedings are not frustrated by persons fleeing the jurisdiction. An obvious way to address this is to arrest everyone. But that is hardly proportionate to the needs of law enforcement and is far too heavy a strain on State resources.

Bail is the answer to this problem. The person is notionally still in the custody of the court and not at liberty, but is not actually in fetters. Note, that as the law would always need a guarantee of personal appearance, all defendants once in the crosshairs of the system are either on bail or in custody. How does it ensure appearance when required? By imposing certain conditions while releasing the person, chief among which is a requirement to appear in court or before the police. Non-compliance with the conditions is met by the threat of arrest, often along with a threat of imposing financial consequences such as forfeiture of property to the State. The financial threat often extends to other persons called “sureties”, who are thus incentivised to ensure the defendant does not flee.

Now, consider the text of Section 437-A Cr.P.C. It is very broad: the court shall require bail bonds, with sureties, before conclusion of trial and disposal of appeal. This throws up a bunch of questions. First, does it mean that the court will not proceed with the trial or appeal before getting such bail bonds? Second, if the court does proceed with the trial / appeal and finds the defendant innocent, would she then remain in custody if she cannot find sureties or comply with the other conditions imposed for bail?

Section 437-A Cr.P.C. allows for both of these eventualities. And it is for this reason that the High Courts of BombayAllahabad, and Himachal Pradesh have clarified that courts within their jurisdiction must not apply the provision in a way that causes either of these results to follow. There will be some states that I have missed, but I am certain that there are many others where no such clarification exists today. Nor has any guidance been issued by the Supreme Court, and so, it is very possible that both of these problematic outcomes are being seen across the country. From here on, this post will focus on the second of the two outcomes: the continued detention of persons acquitted of all charges for their failure to post adequate bail bonds.

The Genesis and Object of Section 437-A
I mentioned that the guidelines issued by certain High Courts curbed certain uses of Section 437-A Cr.P.C. but have not yet explained how they wanted the provision to be applied. The Courts suggested that the provision is a means to ensure that an acquitted person is available to contest any eventual appeal by the State, and so the bail bonds should only be required at the end of a trial before judgment. They also suggest that bail might be given without sureties if an acquitted person cannot find sureties.

The history of Section 437-A supports this reading. Before it was added to the Cr.P.C. in 2009, the only other provision dealing with a need to detain persons pending an appeal against acquittal was Section 390 Cr.P.C. This empowers the appellate court to detain persons pending an appeal against acquittal, if it is convinced that of the threat of them evading the legal process. But in this scheme there still exists a period between the acquittal and appeal when a scheming defendant could still flee and frustrate the State’s appeal. Taking note of this (and abortive attempts by the Gujarat High Court to fill the gap) the Law Commission in Report No. 154 of 1996 recommended insertion of a Section 437-A Cr.P.C. Why? It said that the Cr.P.C. was “silent on the point of securing attendance” during an appeal, and there had been instances where appeals against acquittals were delayed or dismissed due to this failure in securing attendance.

Two problems are immediately apparent here. First, the Law Commission said that the Cr.P.C. was “silent” on securing attendance for appeals but did not even look at Section 390 Cr.P.C. which did cater to this need, albeit differently. Second, the bogey of appeals against acquittals being dismissed was raised without any empirical data about how many such dismissals happened and why. For instance, if the prosecution filed an appeal years after acquittal (as it often does) and then failed to find the original defendant, then it is rather unreasonable to claim that a person fled or frustrated the appeal and piggyback on the dismissal of the appeal to create a perceived need for Section 437-A

Importantly, the Law Commission acknowledged that this measure might be challenged under Article 21 of the Constitution. Its basis for concluding that the proposal was constitutional was simple: the Cr.P.C. allowed appeals against acquittals, and so seeking bail bonds till the limitation period for filing an appeal subsisted was not a “restraint” on personal freedom. Further, proposed Section 437-A was eminently reasonable where it involved no “restriction of liberty or his freedom of movement”.

When Section 437-A Cr.P.C. was ultimately passed by Parliament, there were two big changes from the suggested draft in Report No. 154. The final version of Section 437-A said that a court shall require bonds while the draft version did not make it a mandatory requirement. At the same time, the final version only needed the bail bonds for six months, down from the one year period that the Law Commission had suggested.

Unconstitutional Fetters on Personal Liberty
Practically, Section 437-A Cr.P.C. does not make much of a difference to defendants already out on bail during trial. In such situations, it is easy to extend the period of that bail bond for six months after acquittal by changing the form of the bail bond. But Section 437-A works very differently for those defendants who are in actual custody, unable to post bail by finding sureties or complying with any financial conditions that a court might impose. It is only for these persons that the two scenarios highlighted earlier – delayed trial and delayed effect of acquittal – are possibly realised.

On the face of it, Section 437-A Cr.P.C. though seemingly neutral, is very selective in its impact and discriminates against one class of persons. The classification that it effects is purely built on levers of wealth, influence, and privilege, rather than pursuit of the object behind Section 437-A (perhaps they indirectly affect that object, at best). The effect of this discrimination is to deprive such persons of their right to life under Article 21 of the Constitution, by not only possibly denying a trial itself, but more importantly, by not allowing them to enjoy the liberty that is the natural concomitant of an acquittal. Thus, Section 437-A in its present form offends the equality guarantee of Article 14.

Actual confinement of a citizen after acquittal obviously curtails the freedom of movement that she is guaranteed under Article 19(1)(d). But both the legal and actual fetters on personal liberty curtail the fundamental right that Article 21 protects. Which means we must consider whether Section 437-A Cr.P.C. is protected by the tests governing restrictions of these fundamental rights.

Section 437-A Cr.P.C. contains no sense of proportionality. It does not require the State to satisfy a court that an acquitted persons might possibly flee to avoid the appeal. Nor does it require the State to show that a person, if immediately released, will pose a threat to public safety. Instead, the provision demands every acquitted person to remain in custody of the court despite till the State can make up its mind about pursuing an appeal. Thus, the rights under Articles 19(1)(d) and 21 are rendered subservient to administrative convenience, pure and simple. And this after a person is declared “not guilty”, after a full-length trial or appeal.

Reading Down vs. Striking Down
No wonder those High Courts which have recommended that personal bonds be taken are effectively reading down the text of the provision (supported in this paper too, which discusses other issues with the provision). The constitutional problems in giving Section 437-A Cr.P.C. its fullest expression are obvious, and even the Law Commission in 2017 also suggested a relook is now necessary. But here, I argue that reading down cannot save the provision and it must be struck down altogether.

First, a question of means. Saving Section 437-A Cr.P.C. does not involve merely filling in gaps or creatively interpreting the text. It involves actively re-writing it, and that is something courts cannot do. The requirement that a court “shall” take bonds with sureties will be re-written as something it “may” do. Further, the scope of discretion is altered not to allow a court to forego the demand for bail bonds altogether, but to insert the words “personal bond” in Section 437-A to change the kind of bail bonds that are required.

But far more important is the question of principles. Section 437-A Cr.P.C. must be struck down for it automatically breaks the link between a judgment of acquittal and its legal effects, in the absence of any appeal preferred by the State. This is perhaps the most problematic part of the provision At one level, it creates a conflict within the Cr.P.C. Today, Section 354(1)(d) Cr.P.C. still states that a judgment of acquittal requires that a court direct the person be set at liberty. Without amending what it means to be acquitted directly, the legislature has indirectly rendered all acquittals subject to a condition of complying with Section 437-A. Can the legislature indirectly alter the very meaning of an acquittal at all stages within our criminal justice system in this indirect fashion? No, it cannot. Because this link between a judgment of acquittal and being set at liberty is protected through Article 21 itself. It cannot be severed, and certainly not to cater to administrative convenience.

Conclusions
Perhaps I am “fetishising” what an acquittal means – after all, it is not final till confirmed in appeal. But that finality is in respect of an acquittal being legally unassailable. It does not make the effects of an acquittal automatically contingent upon the possibility of appeal proceedings. Rather, not treating an acquittal as final allows an appellate court to delay giving it effect. This delay can only occur after giving a full hearing to both sides. Any other position would deprive the verdict of a lower court of all sanctity lest it be confirmed in appeal. Moreover, it would mean that persons are condemned from the date of arrest till their case is resolved by the highestappellate court, and continue to suffer all the collateral consequences of criminal convictions for this unconscionably long period of time as well.

This is why the remedy provided by Section 390 Cr.P.C. makes sense. The state can seek detention of the acquitted person pending appeal if it can show that it is necessary, but the default is still that a person remains at liberty. Moreover, an appeal having been filed gave the court proper jurisdiction to hold someone in custody. What if, after some empirical study, it is found that something like Section 437-A is necessary to prevent persons from fleeing and frustrating appeals? Then, a hearing similar to that under Section 390 is the answer, not a position that changes the default position. If the trial court / appellate court is satisfied of a need to detain after having heard both sides it could pass appropriate orders, with the denial of liberty narrowly tailored to account for how long the State might take to file an appeal rather than simply hold persons in custody for fixed periods.

Under no situation is Section 437-A Cr.P.C. the answer. Parliament cannot pass statutes that deem an entire population to be a suspect class for administrative convenience, even after a court of proper jurisdiction has pronounced them innocent. If this is so, then the guarantee under Article 21 might soon be no better than a fig leaf.