Distortion begets Distortion: On the Arvind Kejriwal “Interim Bail” Order

Introduction

In a brief order passed yesterday, a two-judge bench of the Supreme Court granted “interim bail” to the Chief Minister of Delhi, Arvind Kejriwal, for the purposes of campaigning for the ongoing general elections. According to the terms of the “interim bail” order, Kejriwal – who was in custody (as an under-trial) in a money-laundering case, is required to surrender and return to custody on June 2, the day after the elections conclude.

The eight-page order is shorn of any detailed reasoning, and – as I shall argue – both reflects certain serious problems with our criminal justice system (many of them the creation of the Supreme Court itself), as well as adding to those problems. Editorials that have therefore offered qualified praise to the Court for its order (such as this one) are wide of the mark.

Before we begin, however, it is important to note that the criticism of the Court’s order is not a criticism of the fact that Arvind Kejriwal has regained his liberty (albeit temporarily). As this blog has consistently maintained, personal liberty is a good thing, and we should have a lot more of it than what our courts allow. The criticism is of the road that the Court has taken to get there, and the malaise that it both reflects and contributes to.

The Order

Let us now look at the order itself. As the Court itself notes, “interim bail” is not a concept that can be found under a statute, but rather, it is a judicial invention that flows from Article 21 of the Constitution. For this reason, there are no real standards that guide or channel the judicial discretion in granting “interim bail”, other than judicial wisdom, as applied to the case before it (it is somewhat striking that out of the four cases the Court cites to justify the power of granting interim bail, none of them are actually cases where interim bail was granted because of the facts – something that would have allowed us to glean some indication of what kinds of facts would be necessary). Historically, “interim bail” has been granted in situations where a situation (often, a situation of distress) necessitates the temporary release of an under-trial: say, for example, the death (and funeral) of a close relative.

In this case, the Court adds a seemingly new category – that of campaigning in a general election. The only reason that we are given is two words – the “prodigious importance” of the General Election (paragraph 8). When, however, you scrutinise this a little closely, a lot of problems arise.

First, the general elections began on 19 April. Arvind Kejriwal was arrested on 21 March. At the time the elections began, he had already spent nearly a month in prison. The proceedings before the Supreme Court (where he challenged his arrest and subsequent custody) had themselves been going on for substantial time before he was released on “interim bail” on 10 May. So, is the General Election prodigiously important enough for Arvind Kejriwal to have twenty days to campaign, but not prodigiously important enough to allow him to campaign for its entire duration?

Secondly, there are other significant Opposition leaders that have been arrested in the run-up to the elections, and continue to remain in custody (the most prominent among them being Hemant Soren, the former Chief Minister of Jharkhand), including leaders from Arvind Kejriwal’s own party. These leaders have also initiated various legal proceedings – many of which have ended up before the same bench that passed the “interim bail” order. Is the General Election prodigiously important enough for the release of one Opposition leader, but not other leaders?

Thirdly, it may then be argued that the distinction is that Arvind Kejriwal is the only sitting Chief Minister who was in custody (Hemant Soren resigned just before his arrest). But Arvind Kejriwal’s Chief Ministerial position is clearly not a relevant consideration, because the Court – as part of its orders – has prohibited him from visiting his office or the secretariat, or from signing any files, while he is at liberty (these are truly perverse directions, but we will not go into them here). The “interim bail” appears to have been granted to Arvind Kejriwal the political leader, and not Arvind Kejriwal the Chief Minister.

Fourthly, if the basis of “interim bail” is political campaigning, then to whom should it apply and to whom should it not apply? There is evidently no constitutional right to campaign, especially when it comes to under-trials. Indeed, something as basic as the right to vote is denied by law to under-trials – thus creating an ironic situation where the “interim bail” order means that the very fact that Arvind Kejriwal is at liberty now means he can vote in the Delhi phase of the elections, while under-trials still in custody cannot (it is important to stress, once again, that Arvind Kejriwal’s ability to vote is a good thing; only, it is something that all under-trials should have).

Now, if the basis is not the right to campaign, then what is it? In a valiant defence of the Order, Soutik Banerjee over at the SCC Observer argues that the Order carves out a “public interest defence” in personal liberty cases, and that underlying premise is that “an incarceration of a national political leader which prevents them from participating in the Lok Sabha election campaign could undermine the federal and democratic framework of the polity and Constitution.”

Let me say at the outset that I respect this attempt to retroactively reconstruct a normatively plausible rationale from eight pages of non-reasoning. Given the thin scraps of gruel that the Supreme Court habitually feeds us when it comes to legal reasoning, reconstruction is something that we are compelled to do a lot of the time. But consider for a moment what this reconstruction means: is the Supreme Court now going to be the judge of who is a “national political leader” and who isn’t? Is the Court going to dole out interim bail orders on the basis of its own judgment of which opposition leaders being in jail during an election might undermine federalism and democracy, and which ones being in jail would be entirely kosher for the sanctity of elections? Is that the kind of power that we want the Supreme Court to exercise in cases of this kind?

Reflecting and Entrenching the Problem

But this brings us to the question of why the Court is exercising this kind of power in the first place. Indira Jaising’s piece in the Indian Express – “Arvind Kejriwal has got bail, but his arrest indicates a broken criminal justice system” – is an excellent summary of the problems. In essence, the restrictive regime of “special laws” in India (PMLA, UAPA etc) – and their interpretation by the Supreme Court – had made it virtually impossible for individuals to get bail pending trial (see also Abhinav Sekhri, “Front-loading Criminal Justice“). In particular, when it comes to the PMLA, there is a direct line between the Supreme Court’s judgment in Vijaylal Madanlal Chaudhary (discussed here), which sanctified a regime of vast and unaccountable investigative agency power, and the situation that we presently find ourselves in. Add to this the habit of the trial courts (sanctified by the High Court and the Supreme Court) of upholding arrest and granting remand without considering whether custody is actually required, and you get a cocktail of incarceration. Indeed, it is worth remembering that before yesterday’s “interim bail” order, Arvind Kejriwal’s claims for relief before other courts had been rejected; the claims of other opposition leaders in custody have also been rejected, including by the Supreme Court (and including, in some cases, by the same bench – or a part of it – that granted “interim bail”).

The “interim bail” order, then, reflects the problems with the criminal justice system: because other avenues for securing personal liberty are blocked off, you get this ad-hoc eight-page order with two words of reasoning (“prodigious importance”), and rife with internal contradictions and problems.

But it also contributes and entrenches the same problem, because what the Supreme Court is doing is adding yet another distortion to an already distorted criminal justice system. On the one hand, when the Court is actually given the opportunity to curtail executive impunity, protect personal liberty, and safeguard the rule of law through its normal jurisdiction – such as in the challenge to the PMLA – it responds by not only upholding draconian laws, but increasing and expanding state power. And then – in orders like yesterday’s – it retains for itself the discretionary power to decide when, and for whom, it can make an exception. But this is not the rule of law: this is the Supreme Court using personal liberty as a form of patronage, deciding whom to dole it out to and whom to withhold it from, on the basis of opaque criteria (in that sense, Banerjee’s reconstruction of the order – “national political figure” – is more damning than a defence).

The other problem here – which comes out in Indira Jaising’s article – is, of course, that this is a power that only the Supreme Court will wield: as we have seen in the case of not only Arvind Kejriwal but those of others as well, orders such as yesterday will rarely – if ever – be forthcoming from the trial court or the High Court. Orders such as these thus tend to further centralise power in an already heavily over-centralised Supreme Court. Thus, instead of a legal system where courts at all levels are deploying legal standards that are solicitous of personal liberty when it comes to arrest and custody, you have the near-mechanical endorsement of executive power in the courts below, followed by the possibility of the Supreme Court choosing to invoke this extraordinary remedy of “interim bail for political campaigning” if it believes that you are a national political figure! This is not how a healthy legal system works.

And in the long run, it will only create more problems for the Court itself. As we have previously discussed on this blog – in the context of anti-defection law – Courts that are seen to be actively intervening in political contests not only open themselves up to criticism from powerful actors, but also present themselves as attractive sites of capture for those same actors. The more the Court discards legal principle for extraordinary remedies such as these, the more that risk grows.

Conclusion

It is important to reiterate that this post does not argue that Arvind Kejriwal should not have been released. There are serious problems with the manner in which laws such as the PMLA operate, their potential for weaponisation, and their impact on constitutional rights. And it is the responsibility of the courts to preserve and safeguard personal liberty and individual rights in the teeth of executive impunity.

But there is a way to do that. That way is to strike down unconstitutional laws, or – if not – to interpret them in a way that rights are protected across the board, for everyone, at all stages, and by all courts: from the first police application for remand before the magistrate, to the bail application following judicial custody. The way is not for the Supreme Court to lay down legal doctrine that defers to executive power at all stages, while exercising an ad-hoc and virtually Schmittian power to make exceptions at will. The eight-page “interim bail” order, with its non-reasoning, its inconsistencies, and even in its sympathetically reconstructed shape, reveals all the problems with the latter route that the Supreme Court has taken.

Sanjay Singh’s Bail: Judicial Evasion by Non-Order?

On 2nd April, the Supreme Court granted bail to Aam Aadmi Party [“AAP”] MP Sanjay Singh, in what has come to be known as the “liquor scam” case. At the time of writing, Singh had spent around six months in jail.

While the order is undoubtedly significant in that this is the first time that one of the accused in the “liquor scam” case has received bail, the manner in which it has been passed raises a number of crucial issues pertaining to the role and function of the Supreme Court as a court of law. Let us set out the order:

Mr. S.V. Raju, learned Additional Solicitor General appearing for the respondent – Directorate of Enforcement was asked in the morning session to obtain instructions. He states that the respondent – Directorate has no objection in case the appellant – Sanjay Singh is released on bail during the pendency of the proceedings arising out of ECIR no. HIU-II/14/2022 dated 22.08.2022 instituted in respect of offences under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002.

We must record that the concession has been made on behalf of the respondent – Directorate before commencement of arguments on their side. In view of the statement made, we allow the present appeal
and direct that the appellant – Sanjay Singh will be released on bail … []

We clarify that the concession given in the Court today would not be treated as a precedent. We also clarify that we have not made any comments on the merits of the case.

There are three issues with this Order – better called a “non-Order” in my view – that I discuss below.

First, a perusal of the oral arguments reveals that in the morning session (referred to in the Order), the Court made it clear in its remarks that it believed there was no case to be made out against Sanjay Singh. The Court itself encouraged the lawyers for Enforcement Directorate to take instructions from the Agency, and noted that if it came to the examining the case, it would have to pass certain observations about Section 45 of the PMLA (presumably to the detriment of the ED’s powers). As a result, in the afternoon session, the ED’s lawyers came back and told the Court that they had no objection to Sanjay Singh being released on bail. The Order, thus, was passed on the basis of a concession by the State.

However, if you pause to think about this for a moment, there is something bizarre about a Court actively seeking the State’s cooperation so as to avoid ruling against the State. This is no part of the functions of a Court of law. Nor is this the kind of inter-personal dispute where a Court sometimes acts as a mediator. This is a criminal case, where an individual has spent six months in jail, and where multiple courts below have rejected his bail application (needless to say, there was no question of the ED making any concessions as long as it was winning before the lower courts). In other words, it is exactly the kind of case where it is incumbent upon the Court to hold the State to legal and constitutional standards, and to make it abundantly clear – through written, enforceable judicial orders – if the State is failing in its obligations.

Secondly, the concession order has a downstream effect. Recall that the “liquor scam” has seen multiple political leaders behind bars, including the Chief Minister and Deputy Chief Minister of Delhi. While individual cases are, of course, different, there is a common substratum of facts that underlies those cases. While the Court’s reasoned order granting bail to Sanjay Singh need not necessarily have affected those other cases, it might well have done so. The point is, however, that we shall never know, as the Court evaded passing a reasoned order. The result of this is that the other accused in the “liquor scam” case are deprived of even the opportunity of using Sanjay Singh’s bail order in their own, respective future applications for bail. This – for no justifiable reason – tips the balance in favour of the State, and against the individual. And this has become an unfortunate habit of late: recall how, in 2021, the Supreme Court injuncted lower courts from treating the Delhi High Court’s Asif Iqbal Tanha bail order as precedent, for absolutely no reason. The asymmetry here is glaring: when bail applications are rejected, the Supreme Court writes detailed orders explaining why the accused are not entitled to bail (going so far as to observe that “bail is the exception, jail is the rule”), and you can bet that the prosecuting agencies take full advantage of those reasoned orders! But when the boot is on the other foot, we get concession orders or “not to be treated as precedent” remarks, where – at best – one individual might be released from jail, but there is no legal consequence of note that follows.

This brings us to the last point, which is the Supreme Court’s statement that it is not commenting on the merits of the case. This may be a fair comment in general bail cases, but – as we have discussed previously on this blog – when it comes to laws such as UAPA or the PMLA, which encode the “twin test” for bail, this is disingenuous. The reason for this is that the “twin test” statutorily brings in merits considerations into the stage of bail. When the “twin test” says that an accused shall not be released on bail unless “there are reasonable grounds for believing that he is not guilty of such offense,” this is, by definition, merits hearing bundled up into a bail hearing (see the previous discussion, in the context of the UAPA, here). Indeed, the very asymmetry and injustice of the “twin test” lies in the fact that it forces the defence into a merits hearing without the tools normally available to the defence in a criminal case (leading evidence, cross-examination etc). And it is because of that very reason that UAPA/PMLA bails are overwhelmingly rejected, and individuals have to spend months and years in jail without trial.

But this, in turn, means that if an accused individual runs the gauntlet and succeeds in getting bail even under the twin test, he or she should be entitled to benefit from that during the merits phase of the trial as well: what is sauce for the goose is sauce for the gander. Indeed, as I have noted above, it is actually impossible for a “twin test” bail to be granted without an examination of the merits. The concession order, therefore, additionally deprives Sanjay Singh of the very tangible and very real benefits of a reasoned bail order. Again, one would have thought that if you have spent six months in jail without trial, this would be the least you are entitled to from a court of law.

Over the years, it has become increasingly clear that “special laws” such as the UAPA and the PMLA, with their twin test for bail, overwhelmingly stack the deck in favour of the State, and against the individual. In such a context, with the scope of scrutiny of State action already so limited, “concession orders” like the one in Sanjay Singh are disappointing. Arguably, they constitute judicial evasion by another name: an evasion of holding the State to account for its actions that have far-reaching consequences for individual liberty.

Revising the Basics? – On the Supreme Court’s Proclamation of “Jail as the Rule” in UAPA Cases [Guest Post]

[This is a guest post by Kartik Kalra.]

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Last week, the Supreme Court delivered its judgment in Gurwinder Singh v. State of Punjab – an appeal from the Punjab & Haryana High Court’s rejection of bail for a terror-accused – holding as a principle of law that bail rejection is the norm u/s 43D(5) of the Unlawful Activities (Prevention) Act, 1967, and that a UAPA-accused cannot be released as long as elementary factual allegations of their involvement in the terrorism offence – even if divorced from the offence’s constituents – have been made by the state. The Court’s formal pronouncement of “jail as the rule” was a choice between two competing lines of jurisprudence that have emerged in interpreting the UAPA’s bail-restrictive provisions: one, where courts have been cognizant of the extreme state-citizen imbalance they create, and have accordingly required the state to present particularistic probative material in assessing the existence of a “prima facie case” (the standard to reject bail) against the accused (the “eyes wide open” approach); and the other, where courts uncritically accept the state’s version of the accused’s involvement, a line of cases prompted by the Supreme Court’s judgment in NIA v. Watali (the “eyes wide shut” approach). The instant case epitomizes and entrenches the latter as a principle of law, formally laying down a two-pronged test mandating lengthy pre-trial detention irrespective of the strength of the state’s case – at the bail stage –against the accused. More importantly, however, it constitutes a regression even from the eyes wide shut approach, for its assessment of a prima facie case is divorced from the offence’s constituents and definitions under the UAPA.

In this essay, I discuss the judgment in Gurwinder Singh, in the context of what has been referred to on this blog as the “basics”: a set of principles that a judge cognizant of the UAPA’s state-citizen imbalances must invoke in adjudicating bail. I also discuss the Court’s proud proclamation – “bail is the exception, and jail is the rule”.

Gurwinder Singh – Law-Fact Approximation, Revising the Basics

In this case, the accused was alleged to have committed an offence u/s 18 of the UAPA, which prohibits and penalizes, inter alia, “act[s] preparatory to the commission of a terrorist act”. He was alleged to have received funds from members of Sikhs for Justice, an organization deemed an “unlawful association” u/s 3 of the UAPA by the Central Government, which were to be used in India for fuelling separatism through the procurement of weapons, and for raising demands for a separate Khalistani state (¶3). He had been imprisoned for five years when filing for bail; consequently, he also argued for the applicability of the Supreme Court’s decision in Union of India v. K.A. Najeeb, which held that UAPA-accused persons may be released on bail solely on rights-related considerations arising from delays in trial (¶18).

The bail application was to be decided within the contours of Section 43D(5), which states that the accused would be released on bail only if, based on an assessment of the charge-sheet or case diary, “reasonable grounds for believing that the accusation…is prima facie true” do not exist. This term, as interpreted in Watali, meant that materials indicating the accused’s complicity must be shown by the state, and “must be good and sufficient” to demonstrate a possible commission of the alleged offence (¶23). The Court sticks to this interpretation, reproducing the state’s version of the accused’s involvement, without desiring the production of particularistic probative material, finding the general existence of the state’s case sufficient. In this sense, it does not constitute a regression from where the law, pursuant to Watali and the “eyes wide shut” approach, stood.

Simultaneously, however, it does make a grave omission: while the accused was alleged to have committed the offence of “knowingly facilitating the commission of…an act preparatory to the commission of a terrorist act”, the Court’s analysis of the prima facie case is wholly divorced from the offence’s constituents u/s 18. The “eyes wide open” approach, which prohibits a gap-filling exercise between allegations and evidence, does not account for this eventuality, perhaps assuming that any standard – howsoever deferential – would assess the state’s case in reference to the law the accused is alleged to have violated. This is also because in Watali itself, where the primary allegation against the accused was a membership-based offence, evidence collected was directed to prove such membership, corresponding to the legal composition of the offence as it is defined under the UAPA.

If, like in the instant case, the offence concerns the facilitation of an act preparatory to the commission of a terrorist act, a prima facie case that aligns with the offence’s constituents must necessarily show three things – first, what terrorist act, i.e., for what terrorist act was the preparatory act facilitated; second, the accused’s knowledge of the alignment of their actions with the facilitation of the terrorist acts; and third, a demonstration of how the terrorist act was furthered – howsoever marginally – by the accused’s participation. Even pursuant to Watali, therefore, “good and sufficient” materials showing these three elements – which are the offence’s constituents as it is defined in the UAPA – must be shown.

In the Court’s analysis, however, there exists no appreciable link between the facts alleged and reproduced, and the offence’s constituents. It reproduces the state’s case, which contains two primary allegations, neither satisfying the offence’s constituents – first, constant communication between the accused and members of the unlawful association; and second, a disclosure statement admitting to travel – with members of the association – for the purpose of procuring weapons illegally (¶29-30). While this may have been sufficient for showing a prima facie case for a membership-based offence, such as those u/ss 10 or 20 that prohibit membership of banned groups, the offence u/s 18 contains specific constitutive elements. The Court’s omission in assessing the offence in reference to the law, therefore, necessitates revising the composition of the “eyes wide open” approach, including within it the requirement to assess the offence’s constituents in deciding the existence of a prima facie case:

Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction.

Principle 2: The allegations in the chargesheet must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.

Principle 3: Bail cannot be denied when the Prosecution’s evidence is of “low quality or low probative value”, and a Court must engage in an analysis of the evidence to determine that.

Principle 4: In assessing the existence of a prima facie case, the state’s case – and the Court’s assessment – must correspond to the offence’s constituents, and a vague allegation of involvement, which does not correspond to the offence, cannot defeat bail.

Apart from regressing in this dimension, the Court also harshly interprets of Section 43D(5) in rejecting bail, noting the legislative anxiety underlying the words “shall not…release on bail.” I discuss this next.

Jail is the Rule! – On Legislative Intent, KA Najeeb

The most impactful component of the judgment, which is likely to become an oft-repeated phrase in UAPA bail hearings, is the Court’s proud proclamation that in matters involving UAPA offences, jail is the rule, and bail is the exception. The Court arrives at this conclusion through an assessment of the words “shall not be…released on bail” u/s 43D(5), which indicate legislative intent to make bail a rarity (¶18). The Court seeks to align itself with this legislative intent, seeking to concretize bail rejections into law.

While the constitutionality of Section 43D(5) has not yet been decided, performing a harsh reading of the section that codifies into law prolonged pre-trial incarceration – based on probative material of little value, which may even be divorced from the law the accused is alleged to have violated – is an unfortunate move. The derivation of the bail-rejection principle solely from the text of Section 43D(5) is a misattribution – the word “shall”, at least in Indian constitutional jurisprudence, has been diluted to nullity (especially in administrative law cases), with courts consistently departing from legislative mandates that appear seemingly mandatory. Awaiting the constitutional challenge, therefore, a fairer, appropriate reading must be offered to s 43D(5), enabling courts to fairly – without pre-existing tilts towards rejection – adjudicate bail under the UAPA.

Apart from reading s 43D(5) strictly, the Court also distinguishes this case from Najeeb, which enabled UAPA pre-trial detainees to obtain bail if have undergone imprisonment for a substantial period, based on fundamental rights considerations. Contrary to Najeeb, it holds that “mere delay in trial pertaining to grave offences… cannot be used as a ground to grant bail” (¶32). In Najeeb, it notes, the accused was imprisoned for a period exceeding five years, while in the instant case, they were imprisoned only for five (¶32). It also notes that while the trial in Najeeb was likely to take a long duration, many witnesses had been examined in the instant case, with the trial expected to complete shortly. The last justification for departing from Najeeb, however, concerns the existence of a prima facie case itself (¶32-3). This is problematic, for the enquiry in Najeeb – which asks whether the detainee’s constitutional rights have been violated owing to prolonged pre-trial detention – is distinct from the question of the existence of a prima facie case u/s 43D(5):

18. It is thus clear…that the presence of statutory restrictions like Section 43­D (5) of UAPA per­se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution…the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

It is clear, therefore, that the question of rights-violation is distinct from the existence of a prima facie case, and one can – pursuant to Najeeb – be released on bail despite its existence, given its immateriality to one’s release. The Court’s invocation of a prima facie case to reject bail on rights-related grounds, therefore, is erroneous. It would also be worthwhile to note that Najeeb itself invoked prior UAPA-related case-law, where accused persons underwent periods of imprisonment comparable to the instant case, to develop its test of rights-violations.

Conclusion

The judgment in Gurwinder Singh, therefore, is both symptomatic of the prevailing “eyes wide shut” approach, whereby courts seek to authorize detention based on general allegations of involvement in a terror-related offense, while also regressing from how this deferential determination of a prima facie case hitherto occurred. The Court’s assessment of the case against the accused in a manner divorced from the offence’s constituents necessitates a revision to the set of basic principles a judge adjudicating bail must consider. The proclamation of “jail as the rule” is a further, unfortunate move, with the Court giving the state new vocabulary to invoke for seeking prolonged pre-trial detention.

Guest Post: The UAPA Conundrum at Apogee – the Judgment of the Patna HC

[This is a guest post by Akhilesh Dureja and Kundan Kumar Ojha. By way of disclosure, one of the authors was counsel for appellant Nooruddin Jangi, at the HC.]

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Reams of pages have already been written on issues revolving around the process of adjudicating bail applications in UAPA cases. What is clearly established so far is that these cases have become one of the most intense sites of contestation between competing ideas of the jurisprudence of liberty and the jurisprudence of state impunity, or between the eyes wide open and eyes wide shut approach, or between courts choosing to fill gaps in the prosecution’s case and courts requiring corroboration when gaps are found. To make the discussions interesting, inter-disciplinary and illustrative analogies have been drawn, ranging from a swimming pool, a football field, dropping of a stone in still water, to a stenographer. Carrying forward the tradition of this blog, in this article, we would attempt to further simplify the issues involved so that the discussion is palatable to an even wider audience, including readers from non-legal backgrounds.

The first part of this article restates the need to choose an interpretation that leans in the favor of the accused and the second part delves into the particulars of the case before the Patna HC.

What’s the fuss about?

Before getting into the details of the case decided by the Patna HC, it would be useful to briefly restate what exactly the fuss is about the UAPA. First, as stated above, there are two strands of interpretive choices that the courts have demonstrated, i.e., one, protecting individual liberty and the other, preserving “public order” or promoting “public good.” To appreciate why it has been relentlessly argued on this blog and elsewhere, that the court is duty bound to lean towards an interpretation protecting rights of the accused, it is important to understand the ubiquitous power disparity between an individual and the State. To put it simply, what separates a civil suit from an ordinary criminal trial is the power imbalance between the two contesting parties in a criminal trial, where an individual is pitted against the might of the State which, unlike the accused, has all the resources and agencies at its disposal. The SC took cognizance of this structural power difference in Ritu Chhabaria vs. UOI to hold that “the process of remand and custody, in their practical manifestations, create a huge disparity of power between the investigating authority and the accused”. In this context, to bring both the parties on at least somewhat equal footing, the role of the judge becomes extremely crucial; what stands between liberty of an individual and the abuse of the State’s coercive powers to limit that liberty, is the insistence upon procedure, and the checks and balances upon an investigation agency placed by the court, in a criminal trial. This is the framework within which an ordinary criminal trial is set up.

However, the power imbalance is further skewed against the accused in a special statute such as UAPA, where broadly worded offences coupled with a low threshold for a prima facie case, enables the State to charge the tangibly harmless and victim-less actions of an individual under various sections of UAPA, an Act which was primarily supposed to deal with Terrorist Activities and matters connected therewith. The starkest manifestation of this inequity occurs in the context of bail hearings of UAPA cases, adjudicated within the four corners of Section 43D (5) of UAPA and the infamous Watali judgment.

Secondly, it is the conduct of investigating agencies that has been the cause of major concern in the entire criminal jurisprudence on UAPA. It is difficult for a layman to understand the reasons that could motivate an investigating agency to wrongfully confine an individual behind the bars. From this arises an unfounded assumption, that if a premier investigating agency has filed a chargesheet, it must have had sound evidence to prosecute the case. However, in case after case, it has become evident that the conduct of investigating agencies warrants a departure from such assumptions of fairness. While the reasons for wrongful confinement are best known to the investigating agencies, the fact that these take place is undeniable, and this has been highlighted both within and outside the contours of a courtroom. For e.g., in the bail plea of the Malegaon blast accused, the SC had categorically observed in its judgment that there are “material contradictions” (para 20) and “variations” (para 24) in the chargesheets filed by ATS Mumbai. In addition, it has also been seen that investigating agencies have resorted to slowing down investigations by filing multiple supplementary chargesheets, which keeps the accused in prison for as long as possible. This was also highlighted in the case of the discharge order of Sharjeel Imam, where the court came down heavily on the police when it filed a third chargesheet to improve the case, as the arguments on charge were almost over. And outside the courts, the report of the Massachusetts-based Arsenal Consulting, arguing that evidence was allegedly planted in the computer of Rona Jacob Wilson and of lawyers defending human rights activists arrested under the controversial Bhima Koregaon case, is common knowledge.

In the backdrop of this ubiquitous power disparity and the conduct of the investigating agencies with respect to the curtailment of individual liberty, it is reiterated that it becomes the duty of the court to choose an interpretation that leans in the favor of the accused, whenever two interpretations are possible.

The case decided by Patna HC

Now, in the case at hand, there were three accused, i.e., Md. Jalaluddin (hereinafter ‘A’), Athar Parvez (hereinafter ‘B’), and Nooruddin Jangi (hereinafter ‘C’), arrested in the middle of July 2022 and charged with the offences of waging war, collecting arms for waging war, promoting religious enmity etc., by the Bihar Police. The case was later transferred to NIA through an order of the MHA dt. 05.01.2023. By the same order, sanction was accorded to prosecute the accused persons under various sections of Chapter 3 & 4 of the UAPA. The 43-page chargesheet in the case was filed on 7^th January 2023, just a couple of days after sanction was granted. The bail applications of ‘A’ and ‘B’ were rejected by Special Judge, NIA through an order dt. 15.04.2023, while the bail application of ‘C’ was rejected by an order of Special Judge NIA on 01.05.2023. On appeal, the Division bench of the Patna HC disposed off three appeals through a common judgment delivered last week, whereby the order rejecting bail of ‘C’ was set aside and he was accordingly granted bail. However, with respect to the other two accused, the court did not find any folly with the conclusion of the Trial Court that had rejected their bail petition.

After briefly recapitulating the contents of the chargesheet and the contentions raised by the appellants, the HC began by analyzing the scope of 43D (5) and (6). Here, the court appeared to make an attempt at drawing a distinction between the satisfaction of the court required for granting bail in UAPA, vis-a-vis other special laws. However, it stopped short of making any comment on the relative burdens of satisfaction:

There is definitely a lot of difference between the satisfaction of the Court regarding the allegations being prima facie true and the Court coming to a finding that the accused is guilty of such offence, which requirement is there in other special criminal legislations. (Para 24)

The court then unsurprisingly quoted Watali which has often been interpreted to mean that no elaborate scrutiny or dissection of material is required for the prima facie satisfaction as required u/s 43D (5). However, the Patna HC carefully skirted around this interpretation to note that:

Giving reasons is different from discussing the merits or demerits of the case. At the stage of granting bail, a detailed examination of evidence and elaborate analysis of the merits of the case is not to be undertaken, but reasoning behind concluding why bail is not being granted, must be indicated. (Para 27)

Let’s first consider the application of the aforesaid approach of the HC to the case of ‘C’ who was granted relief. The allegations in chargesheet basically showed that ‘C’ was associated with the PFI, and the documents seized confirmed his involvement in criminal conspiracy as he participated in recruitment and training to achieve common object of PFI. Further, he was defending cases filed by ED against the PFI. As per the chargesheet, there was also an admission by ‘C’ that he had interviewed the candidates who were selected by PFI for the scholarship and were asked to join. After taking stock of the prosecution’s case, the court was rather quick to hold that ‘C’ had never attempted to wage war or conspire against the Govt. of India and that giving legal help to one who required such help was only his bounden duty as an Advocate. Here it is important to reproduce the reasoning that the court came up with, to set aside the order which rejected his bail.

No words or sign of the appellant/Nooruddin Jangi @ Advocate Nooruddin Jangi, either in written or oral forms, was brought on record to indicate that he promoted enmity between different groups which could have been prejudicial to national integration.

But for a few isolated materials, showing his participation in protest marches, organized under the P.F.I. banner, there is nothing on record which would prima facie, at least at this stage, establish that he had been or is indulging in activities which would constitute overwhelming public functionaries by means of criminal force.

Merely being a member of a banned organization, would not justify rejection of bail when the Trial is likely to continue for a longer time.

Readers will readily recall that this strand of interpretation by the court, although not in as many words, aligns itself with the eyes wide open approach : where gap between facts as alleged and the offences for which they are accused cannot be filled by inferences and speculation.

Now, let us examine the application of the same approach as was advocated by HC itself, to the case of ‘A’ and ‘B’, whose appeals were ultimately dismissed. Before delving any further, it would be most relevant here to state at the outset that the allegations against them were a bit different from that of ‘C’. In addition to what ‘C’ was charged with, the other accusation against ‘A’ and ‘B’ were that ‘A’ was the landlord and ‘B’ was the tenant of the premises where training of PFI was being imparted and from where incriminating documents were seized. Irrespective of the materials produced, one would imagine that the court would at the least apply the same standard of reasoning to case of ‘A’ and ‘B’ as well. Soon after recording at para 27, that reasons must be indicated for not granting bail, the reason that court actually gave for not granting bail at para 28 was that the Special Court while denying bail took into account all the necessary factors and hence the Patna HC did not find any folly with the conclusion of lower court. But this bland assertion disguised as reasoning neither amounts to sketchy discussion on the materials produced nor does it satisfy the burden of filling the gap between offences they were accused of, and the actual events alleged in the chargesheet.

Further, at para 13, the court noted that it was the claim of the appellants ‘A’ and ‘B’, that they were made to sign the seizure list under duress; however, at para 31, the court went on to hold this against the appellants themselves, apparently because from the police papers the court found that the appellants had refused to sign the seizure-list. One might wonder that simply because it is a UAPA case, would that justify privileging one set of words against the other. The court then stated that since ‘A’ tergiversated in the beginning about the activities of his tenant ‘B’, it provided a smoking gun to the police to carry out further investigation. Again, the question that the court should have answered here was whether such conflicting or evasive statements, taken on their own, justify slapping of UAPA charges to keep the accused behind bars till the completion of trial.

With respect to ‘B’, the court held that he had been making efforts at regrouping ex-cadre of SIMI and PFI and since this meeting was organized immediately before the visit of the Prime Minister, it “is definitely a very strong evidence to make out a prima facie case against him also.” It was also contended by the prosecution that there was a definite plan to disturb the visit of PM to Bihar. However, this plan of disturbing the visit was not substantiated at all, and the accusations were left hanging in the middle of nowhere. While the court refused to fill in the gaps in the case of ‘C’, it was, however, indifferent to the gaps between actual events that were alleged and the acts of terrorism, which ‘A’ and ‘B’ were prosecuted for.

Let us recall the reasoning of the Division bench while allowing the appeal of ‘C’, which it omitted to elaborate upon while deciding the appeal of ‘A’ and ‘B’.

One, that no words or sign of ‘C’ was brought on record which promoted enmity between different religious groups. The same is also true for accused ‘A’ and ‘B’. Even if it is assumed that every thread of allegation against them is true, what NIA has against them is a video on their phones that has a group of people shouting violent slogans. Taken at their highest, the evidence of such videos merely proves their presence at the scene and not their provocation or incitement. The allegations levelled against ‘A’ and ‘B’ of provocative slogans and possessing literature advocating the establishment of Muslim Rule comes closest to the actions of establishing Khalistan or Hindu Rashtra. While there is no authoritative ruling on the sloganeering of establishing Hindu Rashtra as on date, we do have a SC ruling on the sloganeering for establishing Khalistan on the very day of assassination of former Prime Minister, Indira Gandhi. The court in that case held the following.

In situations like that, oversensitivity sometimes is counter-productive and can result is inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.

Furthermore, in S. Rangarajan (1989), it was held that incitement would be considered as incitement to violence only when it is of such nature as a spark in a powder keg. However, in the case at hand before the Patna HC, there was no such material establishing any sort of imminent causal link between the meetings and trainings with public disorder or security/sovereignty/integrity/unity of the State, as was also necessitated by Shreya Singhal (2015).

Two, the court had held in favor of ‘C’ by stating that except for a few isolated materials, there was nothing on record that would make a prima facie case against him. Had the court discussed the materials produced “sketchily” as it had proclaimed at para 26, it would have found that even for the appellants ‘A’ and ‘B’, there is hardly any material to charge them with terrorist activities punishable under Ch. 4 of UAPA. The said Chapter begins with the definition of Terrorist Act and describes it as involving using of bombs, causing death, damaging property, detains/kidnaps/abducts a person, etc. There are 24 entries in the List of Material Evidence in the chargesheet, and none had disclosed any recovery of any arms or weapons to charge the accused with terrorist activities.

Three, the court had allowed the appeal of ‘C’ for the reason that merely being a member of a banned organization would not justify rejection of bail when the Trial is likely to continue for a longer time. Now there are two banned organizations involved in the case, SIMI and PFI. The Patna HC at para 19 observed that accused ‘A’ and ‘B’ were members of SIMI earlier (emphasis mine). So, the court was aware that, as on date, the accused were not members of SIMI. Further, the court was also cognizant of the fact that PFI became a banned organization only after the accused were arrested. What we are left with is that accused were members of an organization which was not banned at the time of their arrest and the pre-requisite for penalizing for Unlawful Associations under Chapter 3 is a person who is or continues to a member of such association after it had been declared unlawful. Since, at the time of declaration of PFI as Unlawful Association, the accused were already under arrest, there is no possibility of continuing to be a member of an unlawful association; hence charges u/s 13 of UAPA should have fallen flat on their face.

What we have demonstrated through this piece is that after a reasonable interpretation of 43D (5) and Watali, the court rightfully allowed the appeal of ‘C’. However, there is a swift departure from its own interpretation when it comes to the application of principles, that it had itself laid, to the case of ‘A’ and ‘B’. It is pertinent to state that this article is not a comment on the guilt/innocence of the accused; rather the narrow point that we have tried to make is that the material that NIA currently has was inadequate to make out a prima facie case against the accused ‘A’ and ‘B’ also, and accordingly they should have been entitled to grant of bail.

Conclusion

The initial problem with respect to bail jurisprudence in UAPA cases arose because of two distinct interpretations, resulting in bail petitions under UAPA cases being heavily dependent on the idiosyncrasies of individual judges. This meant that individual liberty would be subjected to the outcome of a judicial lottery. This inconsistency was further aggravated when the same judge in two separate cases with broadly same set of facts, one decided in June 2021 and the other in October 2022, had taken irreconcilable positions, granting bail in one and denying it in another. However, this UAPA conundrum reaches its peak in the decision of Patna HC, which sees inconsistent application of the standards of the judicial scrutiny with respect to different accused persons in a case with almost identical set of facts.

The Supreme Court’s Bail Order in the Vernon Gonsalves Case – II: What Next? [Guest Post]

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

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A Division Bench of the Supreme Court has allowed appeals filed by Vernon Gonsalves and Arun Ferreira [Reported as Vernon v. State of Maharashtra, Crl. Appeal No. 639 / 2023 (Decided on 28.07.2023) (“Vernon”)] which challenged the dismissal of their bail applications by the Bombay High Court, and has directed that they must be released on bail. The judgment comes almost five years after their arrests, and has been welcomed as a ray of light in what is possibly one of the darkest corners of present Indian jurisprudence — grant of bail in cases under the Unlawful Activities (Prevention) Act 1967 (“UAPA”). I need not elaborate the reasons for this praise for Vernon here, all of which is merited, as these have been comprehensively discussed on the ICLP Blog. Instead, I wish to flag the challenges ahead that must be resolved to make sure that the judgment in Vernon is not reduced to a forgotten relic by the sands of time.

Urgent Need for Clarifying Divergent Opinions

Vernon comes more than four years after a different Division Bench of the Supreme Court had delivered its verdict in NIA v. Zahoor Ahmad Shah Watali in April 2019 [(2019) 5 SCC 1 (“Watali“)] and interpreted Section 43D(5) of the UAPA which requires that courts evaluate whether the case against an accused is ‘prima facie true’ to decide grant of bail. 

In Watali, the prosecution had challenged an order of the Delhi High Court granting bail to the accused, arguing that the High Court had erred by evaluating the substantive merits of the material gathered by the prosecution to decide whether the case against the accused was ‘prima facie true’ as required by the UAPA. The Supreme Court agreed, and held that determining whether a case is ‘prima facie true’ did not entitle a court to speculate on how reliable or believable the material gathered by the prosecution is. 

In the years since Watali its dictum came to sponsor a dizzying variety of judicial approaches. On one end of the spectrum was the ‘eyes wide shut’ approach which saw courts loathe to ask any questions of the prosecution material to decide bail — if there was material, and it supported the allegation, the court was not going to entertain questions about it being absurd. A good example, perhaps, is the decision of the Delhi High Court denying bail to Umar Khalid. On the other end of the spectrum was an ‘eyes wide open’ approach which saw courts continue to demand some believability in the prosecution case to decide bail and test its soundness by skirting the edges of Watali. The Bombay High Court order granting bail to Anand Teltumbde was a recent example of this approach.

At one level, Watali was unremarkable in advocating an approach cautioning courts from wading too deep into a consideration of the merits of a case at the stage of bail. It borrowed this approach from general bail jurisprudence. What was remarkable about Watali was its blindness to the fact that it was not dealing with the ordinary bail law, where deciding bail should not turn on the merits of a case, but a statute which made bail entirely contingent on the merits of the case. In other words, Watali ended up fitting a square peg in a round hole. The judgment in Vernon does not expressly call out Watali as being problematic on this count. However, it unequivocally condemns that most extreme variant of the Watali approach when it concludes that “at least surface-level analysis of probative value of the evidence” is required to decide whether a case is ‘prima facie true’ for purposes of bail under the UAPA (Paragraph 36). This, arguably, is the best reading of Watali itself, but it is not how the Vernon court puts it. 

The subtlety of the analysis by the Supreme Court in Vernon may yet be lost on future courts or may be deliberately avoided by prosecutors, who will probably cling to the fact that both Watali and Vernon are decisions by benches of the same strength and thus continue to evoke the ghosts of the ‘eyes wide shut’ approach in spite of the condemnation in Vernon. To put the matter beyond doubt, it is imperative that the Supreme Court endorse the observations in Vernon wholeheartedly and shines light on its interplay with Watali. The pending appeal against rejection of bail to Umar Khalid may be a good place to start.

The Wider Problem of Twin Conditions Law

There is an interesting passage in Paragraph 40 of Vernon. Echoing observations made in Najeeb [(2021) 2 SCC 202], the Court notes that the restrictions on bail under UAPA are less stringent than those under statutes such as the Narcotic Drugs and Psychotropic Substances Act 1985 (“NDPS”). 

Section 43D(5) of the UAPA reads:

Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: 

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Section 37 of the NDPS Act reads:

No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless — 

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Take a look at both clauses again. The Supreme Court in Vernon says that the UAPA bail requirement is less stringent because it asks a court to see whether the allegations “cannot be held to be prima facie true” as opposed to the NDPS clause which requires the court “to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and he is not likely to commit any offence while on bail.” 

Insofar as the UAPA clause does not have any speculative determination of future conduct required to decide bail, it is definitely less stringent. But is the requirement of testing whether a case is ‘prima facie true’ less stringent than the NDPS formulation of ‘not guilty’ which is repeated across other laws? I think that it is not as straightforward a query as the Court has made it seem in Vernon. If anything, because it will be easier to cross the threshold of establishing a case is ‘prima facie true’ than establishing reasonable grounds for believing a person is ‘not guilty’, the UAPA clause is arguably a more stringent restriction on granting bail. 

Accepting that the UAPA is stricter than the NDPS would perhaps allow courts to come to terms with the seminal question that requires addressing here — can such a clause ever be constitutional? Unlike NDPS and other statutes restricting bail which do not exhaustively mention the materials which a court considers to decide whether reasonable grounds to deny bail exist, the UAPA clause specifically lists out the material on which this determination is made: case diaries, and the police report. Two questions arise. First, can judicial discretion be rendered subservient to the views of a police officer who conducts the investigation?  Second, since it is accepted by the Supreme Court itself that police reports often withhold exculpatory material from courts in a bid to secure convictions which has prompted the Court to broaden rules of disclosure, is such a procedure meeting the ‘just, fair, and reasonable’ test under Article 21? 

Answering this question of stringency requires dealing with a linked question which neither Vernon nor Watali dealt with — upon whom does the burden lie to meet this threshold? In the NDPS framing, it has been common for courts to assume that the accused must show that there are reasonable grounds to believe that she is not guilty of the offence. The text itself may yet support casting the burden on the prosecution, but that is a separate matter. In the UAPA context, the Supreme Court in its framing at Paragraph 40 itself suggests a similar approach of placing the burden on an accused — the test is framed as a negative, the case “cannot be held to be prima facie true“, which is a proposition only the accused will try and show. This is how most courts have so far been reading Section 43D(5), but somehow it has not prompted courts from considering the impact this view has on how bail hearings under UAPA are to be conducted. Since it is only once an investigation concludes that the accused gets copies of the material forming the basis of accusations against him — the very material which is the basis for a court to decide whether the case is ‘prima facie true’ — does this mean that every accused is practically consigned to spend three to six months in custody in such cases before being able to agitate bail? Again, we must ask, is this a procedure that can ever meet the venerable ‘just, fair, and reasonable’ test prescribed by Article 21 to deprive persons of their personal liberty?  

Conclusion: The Little Done, the Vast Undone

Judgments like Vernon, where judicial reasoning does not crumble under the sheer weight of how serious certain accusations can be made to sound from the lips of prosecutors and the pens of policemen, breathe life into the idea that there exists a rule of law governing the affairs of the Indian republic. However, one judgment alone cannot alter the deep-seated views which prompt courts to adopt positions and procedures that are antithetical to personal liberty. Vernon reflects the little done. This post hints at the vast undone that must now be addressed by courts and the legislature if we want make bail hearings a fairer enterprise.

Recovering the Basics: The Supreme Court’s Bail Order in Vernon Gonsalves’ Case

Over the last decade, the bail provisions of the Unlawful Activities Prevention Act [“UAPA”] have been one of the most significant sites of constitutional struggles for personal liberty and State impunity (see here and here). A number of convergent factors (as discussed by Abhinav Sekhri in this piece) are responsible for this: the UAPA’s broadly-worded provisions (e.g. “membership” of terrorist gangs) lowers the threshold for initial arrest and custody, and the pace of the trial process means that years will pass before a final determination of guilt or innocence. In that context, bail is the only remedy that stands between an individual and a decade in jail without trial.

The Supreme Court’s notorious judgment in NIA vs Zahoor Ahmad Shah Watali (see here), by limiting the extent of scrutiny that courts could cast upon the Prosecution’s case during a bail hearing, created further challenges for individual liberty. Since it was handed down four years ago, Watali has cast a long shadow over the evolution of bail jurisprudence under the UAPA. Liberty and due process-minded judges have incrementally chipped away at Watali’s intellectual foundations, while maintaining formal consistency with precedent; on the other hand, philosophically pro-executive judges have found a ready shelter within Watali, where they can stay insulated from the task of challenging the State. The result has been a Janus-faced jurisprudence that is impossible to reconcile. On the one hand, a set of cases judgments from the Supreme Court and the High Courts that read the substantive provisions of the UAPA narrowly, and insist on the Prosecution bringing forward facts and not inferences (see “Back to the Basics“; “Staying with the Basics“; “Entrenching the Basics“; “Once again the Basics“); and on the other hand, another set of judgments that enlarge State power, and endorse incarceration on the basis of isolated facts bound together by (inferential) claims of conspiracy (see “Forgetting the Basics“, “Imprisonment by Metaphor“; “The Arup Bhuyan Review“). Indeed, so bewildering has this jurisprudence become, that the same judge has taken both these irreconcilable positions, in cases arising out of the same broad sets of facts, granting bail in one and denying it in another (see the section “The Contradictions of Justice Siddharth Mridul” in “Forgetting the Basics“).

This lengthy context is necessary to understand the significance of Vernon vs State of Maharashtra, delivered by a two-judge bench of the Supreme Court yesterday. In Vernon, the Justices Aniruddha Bose and Sudhanshu Dhulia granted bail to Vernon Gonsalves and Arun Ferreira, two of the accused in the “Elgar Parishad/Bhima Koregaon case.” While previously, a few of the Elgar Parishad detainees have secured bail from the Bombay High Court (see “Once again the Basics”) while others have had their bail applications rejected (see “Forgetting the Basics”), Vernon vs State of Maharashtra is the first instance of the Supreme Court granting bail on merits in the Bhima Koregaon set of cases. However, it is more than that: a close reading of Vernon reveals that it is a crucial contribution to the first line of cases mentioned above: it challenges State impunity, creates a modicum of breathing space for individual liberty and due process, and – perhaps for the first time – directly confronts some of the underlying premises of Watali.

The prosecution’s case against Vernon Gonsalves and Arun Ferreira followed a now-familiar pattern. Following their arrest, the National Investigation Agency [“NIA”] recovered various documents and pamphlets that – it was alleged – called for a Revolution; in addition, the Prosecution relied on statements from “protected witnesses” and third-party communication to link the accused with the banned Communist Party of India (Maoist), both with respect to membership and with respect to raising funds. In the absence of direct proof of association with the CPI-Maoist, the Prosecution narrative was completed with the allegation that the group that the accused were a part of – the Indian Association for People’s Lawyers (IAPL) was a “front” for the CPI-Maoist. Based upon this combination of facts and inferences, the Prosecution wove a narrative of a conspiracy to destabilise and overthrow the nation.

The Court’s response to the Prosecution’s version is instructive. In paragraph 15, the Court begins by noting that in an ordinary bail petition, it would not be required to scrutinise the quality of evidence; however, “in view of the restrictive provisions of Section 43D of the 1967 Act, some element of evidence-analysis becomes inevitable.” This is important, because ever since the Watali judgment, the State – and the second line of judgments discussed above – have attempted to shut the door on judicial scrutiny of evidence in a UAPA bail proceeding. As I have pointed out previously, this is akin to making the defence swim with both arms behind their back (see “Swimming with your arms tied behind your back.“) The text of 43(D)(5) already ties one arm behind the back when it statutorily bars the Court from granting bail if a prima facie case is made out on the basis of prosecution materials (recall that at this stage, the defence can neither submit exculpatory evidence of its own, nor cross-examine the prosecution). These judgments – which limit the extent to which the defence and the Court can examine even the prosecution’s (uncontradicted) materials then amount to tying the second arm behind the back, attaching dumbbells to the legs, and then shouting “swim, swim!” In that context, paragraph 15 is therefore important in that it categorically opens the door to substantive evidentiary scrutiny. This becomes important in the specifics, as we shall soon see.

Having set out the Prosecution’s evidence, the Court then proceeds to examine it. In paragraph 24, it notes: “as it would be evident from the analysis of the evidence cited by the NIA, the acts allegedly committed by the appellants can be categorised under three heads.” I want to pause here for a moment. Taxonomy – or classification – is never a neutral act. How the Court approaches the facts will determine the nature of the questions that it asks, and – thereby – the answers that it arrives at. In choosing to classify the Prosecution’s material into three distinct heads – and then proceeding to analyse each set on its own terms – the Court here rejects an approach to the case that would draw connections between these heads on the basis of inferences. As we have seen many times by now (most vividly in the Umar Khalid bail hearings), the Prosecution comes to court with a set of facts that do not individually make out a case under the UAPA; it then invites the Court to draw connections and fill in gaps using the glue of “conspiracy”: and suddenly, the whole has become more than the sum of its parts, an innocuous exchange of WhatsApp messages has become part of a sinister design to cause riots, and a speech calling for peace has become a conspiratorial dog-whistle to violence.

Paragraph 24, however, signals a decisive rejection by the Supreme Court to such a theory of the case. In the first category, the Court deals with the allegation of “association” with a terrorist gang through the alleged recovery of incriminating documents and witness statements. The Court reiterates the basic point (that a few recent judgments appear to have forgotten) that possession of literature – no matter how incendiary – is not a terrorist act (paragraph 26). With respect to funding, the Court notes that there is no evidence of money actually being transmitted, and that to by the accused, especially as many of the statements relied on have been recovered from laptops and are unsigned (paragraphs 27-28). The Court applies the same logic to the third-party communications and documents which – it notes – have at no point been recovered from the accused themselves (paragraph 29): in other words, the existing evidence against the accused is of “weak probative quality”, and therefore not enough to sustain a prima facie case under the UAPA. As the Court repeatedly points out – and this is important – even taken at the highest, none of the materials reveal any commission – or intent to commit – an actual terrorist act. (paragraph 29)

But what of the accusation of “membership” through association? Here, the Court was faced with something of a challenge, as the recent Arup Bhuyan review judgment had seemingly overturned the position that “membership” under the UAPA requires “active membership”, i.e. “incitement to violence.” The Court deals with this by holding, in paragraph 34, that the UAPA nonetheless the Prosecution to:

… facie establish their association with intention to further the said organisation’s terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. But there must be intention to further the activities of such organisation on the part of the person implicated under such provision.

This is important, as the Court here brings back “a measure of fairness” (in Sekhri’s words) into the provisions of the UAPA, which the Arup Bhuyan review judgment had abandoned. Indeed, in his analysis of Arup Bhuyan (Review), Sekhri ended on a note of (bleak) hope, observing that the Court “limits its observations to membership of the ‘unlawful’ organisation under Section 10 of the UAPA and not those clauses that pertain to membership of terrorist organisations, where the arguments of mens rea would still be available.” Sekhri warned that this was a “mightily optimistic reading”, but in Vernon, this optimism appears to have been justified, as the Court has indeed read back in the mens rea requirement – and a requirement of specificity – in the context of terrorist offences and membership of terrorist organisations under the UAPA. Indeed, as the Court reminds us – another salutary warning that has been ignored too often of late – “when the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act.” (paragraph 35)

This approach informs that Court’s understanding of Watali itself. In paragraph 36, after noting Watali, the Court goes back to a review of the evidence against the accused, and holds that not only is there no allegation of any overt act or offence, on an analysis of the “quality and probative value” of the evidence, what emerges is that the “letters” on the basis of which the applicants are sought to be implicated are in the nature of hearsay. This seemingly innocuous observation is, however, crucial, because after Watali, courts have frequently taken otherwise inadmissible hearsay evidence as the basis for endorsing the Prosecution’s prima facie case and denying bail. Indeed, denial of bail to Umar Khalid (for example) was based in significant part on hearsay evidence (see “Stenographer for the Prosecution“). This is something that I have never quite understood: while it may be one thing to say that the Court can’t look too deeply into the quality of evidence, how can it be that evidence that is statutorily barred from being considered against an accused during the trial (such as hearsay) could nonetheless be relied upon to deny the accused liberty at the stage of bail? When I put this question to my criminal lawyer friends on reading the Umar Khalid trial court bail judgment, they smiled ruefully and said “Watali.” One can only hope that after today’s judgment, in future bail cases, trial courts will not need to ruefully say “Watali” and deny bail (at least on the basis of hearsay evidence!).

As a final point, the Court relies upon the judgment in K.A. Najeeb to note that, at the time of the judgment, the accused have spent almost five years in jail, something that raises serious Article 21 concerns. The Court clarifies that one need not have spent more than half the total sentence in jail before Article 21 concerns kick in (an absurd proposition that too many judgments have given credence to); but rather, the lapse of time is an objective factor to be considered under Article 21 (paras 42 – 43). On a combination of these factors, then, the Supreme Court grants bail to Vernon Gonsalves and Arun Ferreira.

In my previous analysis of the “liberty-oriented” line of UAPA judgments, I have noted that these judgments set out two important principles to be followed in considering bail under UAPA:

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

Principle 2: The allegations in the chargesheet must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.

The judgment in Vernon Gonsalves affirms both principles, and adds a third:

Principle 3: Bail cannot be denied when the Prosecution’s evidence is of “low quality or low probative value”, and a Court must engage in an analysis of the evidence to determine that.

If applied properly in the future, this is a vital third safeguard that will help to undo a significant amount of the damage done to constitutional principles and due process by Watali. As always, the proof of the pudding will be in the eating.

A final point: while the Supreme Court’s judgment is welcome, it must be remembered that it took us five years to get here, during which time two separate courts rejected the bail applications of the accused, looking at the same evidence that the Supreme Court found to be completely unconvincing. This is become something of an unfortunate trend: as we have seen recently in Teesta Setalvad’s case, trial courts and High Courts all too frequently and reflexively deny bail and keep people in jail without trial, with the Supreme Court ultimately having to intervene and put things right. This is unsustainable: not only does it mean that people spend years in jail without trial until the case finally winds its way to the highest Court, but it also puts an unfair degree of pressure upon the Supreme Court to “get it right.” One can only hope that at least after today’s judgment, trial courts and High Courts will feel less constrained in granting bail under the UAPA. After all, as Sekhri wrote after the Arup Bhuyan review, “what is left if even hope is lost?”

Guest Post: The Doctrinal Discomforts of Default Bail

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proportionality in Remand: Lessons from Kenya

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Post: The Arup Bhuyan Review

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

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

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

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

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

What has the Court done in Arup Bhuyan (Review)

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

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

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

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

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

The Many Missteps of Arup Bhuyan (Review) 

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

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

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

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

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

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

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

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

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

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

Is the Glass Still Half Full?

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

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

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