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.

The High Court of Kenya Strikes Down Life Imprisonment

In July of last year, the Kenyan Court of Appeal had struck down mandatory life imprisonment as unconstitutional. As the analysis on this blog noted, the judgment was delivered in a context in which the death penalty in Kenya has not definitively been held unconstitutional (just last week, in fact, a Kenyan Court controversially handed down a death sentence). However, even as the debate around the death penalty continues, the High Court – in a judgment delivered on 19th March 2024 – held life imprisonment itself to be unconstitutional.

The judgment – Justus Ndung’u Ndung’u vs Republic, authored by Justice Nixon Sifuna, is remarkably short, coming in at six pages. It was an appeal from both a conviction and a sentence (for incest), and indeed, much of the judgment is concerned with re-appraising evidence. The Court finds that the conviction was justified, and upholds it. This then brings it to the question of sentence: the magistrate had imposed a life sentence. The Court finds it unjustified not specifically on the facts of this case, but rather, on the basis that the sentence of life imprisonment itself is unconstitutional. The heart of the analysis is in paragraph 10, where the Court notes:

A life sentence is a sentence sui generis. In that, whereas it is philosophically supposedly imprisonment for a duration of time only, it is in actual sense imprisonment that is indeterminable, indefinite, uncompletable, mathematically incalculable, and therefore quantifiable only for the convict’s entire remainder of his lifetime.

Variants of this analysis are repeated in the succeeding paragraphs, before Sifuna J concludes that the sentence is, therefore, archaic, unreasonable and absurd, and violates the right to human dignity under Article 28 of the Kenyan Constitution (paragraph 17). Reconstructing the reasoning, at its heart, the issue appears to be that unlike all other sentences, life imprisonment is not definite, but pegged to a contingent event (the end of the convict’s life), which could happen at any given time. Sifuna J. therefore compares it to the death penalty (paragraph 16), and also highlights the potential absurdity of a person who dies in prison soon after being sentenced for a heinous crime, as opposed to another person who spends years behind bars for a less serious crime (paragraph 12).

Neither of these two arguments are, however, entirely convincing. The analogy with the death penalty is striking and powerful, but it is unclear if it supports the argument for unconstitutionality, given that the death penalty itself has not been struck down yet (in fact, a situation where life imprisonment is unconstitutional but the death penalty is constitutional feels somewhat anomalous!) And the potential absurdity of someone dying an early death behind bars is not quite an absurdity if we consider that the primary penological goal of life imprisonment is prevention – i.e., to prevent a convict from committing a crime again. From that perspective, there is nothing particularly absurd about a convict dying soon after being sentenced, as there is no question of recidivism after death. It is, of course, another matter whether punishment based solely on prevention, and completely ignoring reformation or rehabilitation, can pass constitutional muster; that, however, is not considered in the judgment.

We therefore come back to the question of indefiniteness, and the violation of the right to dignity. I think that the argument – although it is not spelt out in the judgment itself – is essentially one of dehumanisation, or considering the convict purely in instrumental terms. In assuming that an individual can never be re-integrated into society, the life sentence entirely strips them of agency, or the ability to make different choices in the future. The locus of the violation of human dignity, I would suggest, lies in this assumption.

Two points then arise with respect to the judgment itself. The first – as noted above – is that the judgment does not, in its consideration of the dignity question, engage with penology, or the goals of criminal punishment. In my view, striking down a sentence provision as unconstitutional is difficult without at least considering what the stated goal of the punishment is, and how the punishment itself relates to that goal. Indeed, that is a vital element of the proportionality test, which is the overarching basis of constitutional challenges, especially of this nature. Indeed, the paragraph above – that attempts to excavate the normative basis for the indefiniteness argument – finds itself going back to the penological goals of the life sentence (as it must).

The second point is a point of procedure: notably, it does not appear that the constitutionality of the life sentence was challenged in this case (if it was, then the entirety of this paragraph can be ignored). I do not have access to the pleadings, but let us go by the Court’s own framing of the question of sentence: “Whether the imprisonment sentence imposed by the trial court was unreasonable, excessive, or too harsh.” This is not the language of a constitutional challenge, but a plea for sentence mitigation on the facts of the case. The question then arises: can the High Court strike down the life sentence without it being under challenge? Would not, for example, the State have to be put to specific notice, so that it can defend the constitutionality of the sentence in those specific terms?

While, therefore, I agree with the High Court’s decision to strike down the life sentence, and I find locating the analysis in how indefiniteness violates the right to dignity, the Court’s reluctance to engage in a full-blown analysis of the dignity question (including applying the proportionality test), as well as the possibility that there was no constitutional challenge made, might leave the judgment vulnerable upon appeal. It will be interesting to see what happens at the Court of Appeal!

Guest Post: The PMLA’s “Adjudicating” Authority as an “Administrative” Body: Appraising the Madras High Court’s Decision

[This is a guest post by Saranya Ravindran.]

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Introduction

The Prevention of Money Laundering Act, 2002 (“PMLA“) allows the confiscation of property allegedly involved in money laundering by the Enforcement Directorate (“ED“) without a hearing, under specified circumstances. To safeguard against potential abuse, Section 6 establishes an Adjudicating Authority (“Authority“) to call upon an aggrieved party to show cause as to why the confiscated property must be released.

The provisional attachment made by the ED is valid for 180 days. However, within 30 days of passing the provisional order, a complaint must be filed before the Authority. If the Authority has reasons to believe that the party is in possession of “proceeds of crime” as defined in Section 2(u) after hearing the officer and the aggrieved party, then it can record a finding to that effect and confirm the provisional attachment. Such an attachment would remain effective until the pendency of proceedings before the Special Courts established under PMLA and a final order of confiscation or release is passed.

Pay Perform India Pvt. Ltd. v. Union of India

The Madras High Court recently was faced with a writ petition questioning whether a single-member bench of the Authority can consist of exclusively executive members (i.e., whether a single-member bench without any judicial member is valid). In RK Jain v. Union of India (“RK Jain“), the Supreme Court held that members of tribunals that exercise quasi-judicial functions should necessarily have experience in law, with qualifications deemed important to effectively adjudicate the dispute.

Relying on RK Jain, the Telangana High Court held that since the Authority is obligated to issue show cause notices, conduct a hearing, appreciate evidence, and give a reasonable opportunity to both parties before passing its order, its functions are similar to a judicial proceeding. On this basis, it concluded that the presence of a judicial member is mandatory. On the other hand, arguing that the Authority makes no final determination on the guilt of the party and merely passes an interim order to continue provisional attachment of properties suspected of being involved in money laundering, the Madras High Court reached the opposite conclusion.

To determine whether power is administrative or quasi-judicial, one must consider various factors, including the nature of the power conferred, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Through this analysis, each of these factors would be considered in-turn.

Nature of Power

The petitioners argued that the powers granted to the Authority has all the trappings of a Court. It has the power to summon individuals, inspect records, and has detailed procedures for filing applications, signing pleadings, registering cases, etc. Thus, a holistic understanding of the Authority would make the procedures and powers it has akin to that of civil courts. However, the Court held that these procedures are for “dealing with the ‘administrative case’ and that by itself will not in any manner alter the Adjudicating Authority as ‘the Tribunal or the Court’.” It further held that as per Section 11(3), the proceedings are deemed judicial for the purposes of sections 193 and 228 alone, clearly indicating that it is otherwise an administrative proceeding.

However, instead of determining whether the proceedings are administrative or judicial, the Court operated from the presumption that such a case is administrative. Being administrative, any further guarantee of power akin to that of courts would be irrelevant since the proceeding is prima facie administrative anyhow. Apart from adopting such a circular reason, the Court ignored precedent such as RK Jain and State Gujarat v Utility Users Welfare Association, which noted that the nature of powers conferred is an essential consideration in determining whether a case is administrative or quasi-judicial.

This is why, in Shri Bhawan v. Ram Chand, even the simple function of granting concurrence to a landlord to file an eviction suit against a tenant on non-statutory grounds was deemed quasi-judicial, since the authorities had to consider both sides and determine the relative benefits and harms before making such a determination. This adjudication process led the Court to conclude that the powers exercised were quasi-judicial. In fact, in cases where administrative authorities have exercised similar powers to extend preliminary seizures, such orders have been held as judicial and not administrative.

In Assistant Collector of Customs v. Malhotra, the Supreme Court had to determine whether the power of the collector of customs authorities to extend the period of preliminary confiscation of illegal imports by six months was a quasi-judicial function. The Court held that while the initial seizure was subjectively determined by the authorities, the subsequent extension was not done mechanically but objectively, on facts and investigation. Hence, the power of extending the time limit was deemed quasi-judicial.

Similarly, PL Lakhanpal v. Union of India (“Lakhanpal“) held that a reviewing function of a detaining authority is quasi-judicial. The Court noted that there is a difference in the state’s power to enforce a prima facie detention and to continue them beyond six months. It held that while the initial detention can be made subjectively, further detention has to be based on an objective assessment, evidence, and an opportunity for both parties to be heard. Hence, the latter determination was classified as quasi-judicial. Thus, even if the final subject of detention is the same in both cases, the presence of certain adjudicatory powers can be grounds to classify an act as quasi-judicial. Borrowing from such precedents, an act which extends the provisional attachment of properties beyond the prescribed period must be held as quasi-judicial.

Consequences of exercising power

As per Section 5, the Authority can attach any property believed to be proceeds of crime. This includes property derived either directly or indirectly from crime, with “crime” also defined expansively to include both a scheduled offence and anything related to a scheduled offence. Thus, even links to criminality are sufficient to confiscate property. Hence, as explained previously on this blog here, if some money is invested in a house or a bank account with links to the acts of the offence, those can be attached. While the Madras High Court read this power as relatively inconsequential since the property could be released on final adjudication, the adjudication process could span several years and be an unimaginable burden for someone whose house or bank accounts remain frozen.

If we refer to cases involving similar restriction of rights by customs authorities, orders confiscating goods or imposition of penalty, are commonly regarded as quasi-judicial acts given the severe restriction they impose on property rights of individuals. This is even if such confiscation does not constitute a judgement or order of court for supporting a plea of double jeopardy, or become a conclusive determination of guilt. Under PMLA, the restrictions are even more severe since orders can be passed against persons not even named as the accused of a scheduled offence. Under Section 24, the burden is also on the accused to show how the properties are not involved in laundering. Thus, given the dangerous consequences of the Authority’s powers, discretion to executive in the absence of any judicial member merits rethinking.

Manner of exercising power

The Respondents argued that the Adjudicatory Authority is merely an “additional internal safeguard.” The Authority’s orders are appealable by the Appellate Tribunal and the High Court, with final adjudication of the dispute itself dealt with by the Special Court, which are also appealable to the High Court. Based on this structure, the Madras High Court concluded that the authority “is in place as a check and balance” and “does not also conclusively decide as to whether any property or thing is part of / proceeds of crime or out of any involvement in money-laundering.” Hence, it was held that the Authority was an administrative body.

However, there are two issues with this line of reasoning. Firstly, as seen in cases like Lakhanpal, merely because the order is subject to a final decision does not make the order non-judicial. Civil courts routinely grant interim orders conditional on the final decision. This does not make their acts any less judicial. Thus, conclusive determination is not a necessary criterion for quasi-judicial acts. Secondly, even if a body has Appellate Tribunals and its powers have extensive safeguards, that by itself does not obviate its status as a quasi-judicial entity. Hence, the mere fact that the Authority is present as an institutional safeguard is insufficient to rule out its character as being quasi-judicial, especially given the widespread implications it has for individuals.

Conclusion

The power that the Adjudicating Authority wields is immense, even if it is only exercisable on an interim base. Its exercise has so far been rife with various issues, most recently reflected in Justice Pratibha Singh’s caution to the Authority on passing “templated orders” and to refrain from using “identical templated paragraphs”. Such non-application of mind has the potential to cause serious prejudice to aggrieved parties. Hence, the presence of a balanced coram, mandatorily including judicial members outside the executive, could make a meaningful difference to the operation of the Authority.

Guest Post: The Supreme Court’s Remission Judgment in the Bilkis Bano Case

[This is a guest post by Masoom Sanyal.]

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A division bench comprising of B V Nagarathna and Ujjal Bhuyan, JJ, has delivered its judgement in the case of Bilkis Yakub Rasool v. Union of India (‘Bilkis Bano’). The main petitioner, Bilkis Yakub Rasool (simply, Bilkis Bano), had challenged the order passed by the Government of Gujarat on 10 August 2022, remitting 11 men convicted of raping her during the Godhra Riots in Gujarat in 2002. Through this judgement, the Court has held the remission illegal, and ordered the convicts to surrender themselves to appropriate jail authorities within a time frame of 2 weeks. In this essay, I show how the remission orders were based on a fraud committed on the Supreme Court by misleading it, which in turn led to a misplaced holding that the Government of Gujarat had the jurisdiction to grant remission.

Brief Factual Background

Bilkis Bano, the petitioner, was the victim of a crime committed on her during the charged atmosphere of Gujarat Riots in 2002, whereby she was subjected to gangrape by a mob of men, who also murdered her other family members. The crime has been described as a crime against humanity. In 2003, the Supreme Court had directed that the investigation in this case be done by the Central Bureau of Investigation (‘CBI’), and in 2004, the Court transferred the trial of the case to a competent court in Mumbai. In 2008, the Special Judge in Mumbai convicted the 11 accused for offences as serious as gang rape and murder. The Bombay High Court and the Supreme Court upheld the conviction and the sentence in 2009 and 2017, respectively. In 2019, the Supreme Court ordered that Bilkis Bano be given compensation for the torment and the ordeal suffered by her.

Meanwhile, one of the convicts had applied for remission under Sections 433 and 433A of the Code of Criminal Procedure (CrPC). In 2019, he made an application before the High Court challenging the government’s non-consideration of his remission application. In a 2019 order, the High Court of Gujarat observed that since the trial had taken place in Mumbai, the Government of Maharashtra, and not the Government of Gujarat, was the appropriate government to grant the remission. An application was moved by him before the Maharashtra Government, who according to their remission policy, consulted the CBI and the Special CBI Court – both of which opined that remission should not be granted. In 2021, the other convicts also applied for remission. The CBI and the Special CBI Court again opined against the remission.

In 2022, a Writ Petition was instituted in the Supreme Court by one of the convicts, seeking a writ of mandamus directing the Government of Gujarat to consider his application for pre-mature release under its policy of 1992 (‘1992 Policy’). The argument here was (i) that the Gujarat Government was competent to grant the remission, (ii) that the remission must be granted in accordance with the policy of 1992 of the Gujarat Government since that was the policy prevailing at the time of conviction. The insistence on following the 1992 Policy was because if the currently prevailing policy was preferred, i.e. the policy as revised in 2014, granting the remission would be impossible: the 2014 Policy simply prohibits granting of remission to those accused of heinous crimes like rape and murder.

The Supreme Court’s 2022 Judgement: Jurisdictional Errors

The Supreme Court delivered a judgement in this matter in 2022 (‘the 2022 Judgement’). It held that (i) the Government of Gujarat was the appropriate government to grant remission, and (ii) the Gujarat Government must follow its 1992 policy while considering remission. This is where the Supreme Court erred: it incorrectly placed the jurisdiction to grant remission in the hands of the Gujarat Government. The 2022 Judgement is in ignorance of (i) Section 432(7)(b), which provides that ‘appropriate government’ under Section 433 means “the Government of the State within which the offender is sentenced or the said order is passed” and (ii) a series of larger bench judgements of the Supreme Court holding that the appropriate government in such cases is the government of the state were the conviction and the sentence was awarded. The judgement is, therefore, per incuriam.

Additionally, there was misrepresentation by the petitioner-convict and suppression of facts. The petitioner-convict had suppressed the fact that in pursuance of the Gujarat High Court judgement, he had already initiated an application for remission before the Maharashtra Government (Para 36.4). In fact, strangely, the Government of Gujarat itself pleaded before the Court that the High Court had held, and it endorsed the opinion, that the Maharashtra Government was the appropriate government to grant remission. It was sought to be represented – or rather, misrepresented – before the Court by the convict that the Judgement of Bombay High Court in 2013, which had held that upon conclusion of the trial, the prisoner must be transferred to the prison in his State, and the Judgement of the Gujarat High Court in 2019, holding that the Maharashtra Government was the appropriate government to grant the remission, were in conflict with one another. This is simply not true, since the Gujarat HC judgement answers the question about which government is competent to grant remission, while the Bombay HC merely talks about sending the prisoners themselves back to the prison in their home state. The Bombay High Court does not make any observation whatsoever regarding the competence of either government to decide upon remission of the convicts. In fact, the Bombay HC judgement is from 2013 – a time when the question of remission itself could not have arisen, and indeed had not arisen before the Court. Nevertheless, these two judgements, which in fact deal with entirely different issues, were portrayed before the Court as if the two HCs have taken contrary views. This misrepresentation is another reason why the judgement of the 2022 judgement is vitiated. Thus, the Court has now held that the 2022 judgement holding that the Gujarat Government was empowered to grant remission, was obtained by playing a fraud on the Court by suppressing relevant facts and misrepresentation of certain facts.

In furtherance of this judgement, the Gujarat Government considered the applications for remission by the convicts and released them through its order dated 10 August 2022, notwithstanding the fact that it did not have the competence to do so.

Conclusion

The Court has now held that the judgement of the Supreme Court in 2022 is a nullity because (i) it is vitiated by reason of a fraud being played on the Court and the application of doctrine of suppresio veri, suggestio falsi; and (ii) it is per incuriam, since it does not follow the previously laid down precedent in the case of V. Sriharan, where it was held that ‘appropriate government’ for the purpose of Sections 432, 433, and 433A means the Government of the State where the convicts were convicted and sentenced – which, in this case, would mean the Government of Maharashtra. The Court has now rectified this error by holding that (i) the judgement of the Supreme Court in 2022 is a nullity; (ii) the Gujarat Government was not empowered to grant the remission to the convicts; and (iii) the convicts must surrender to the concerned jail authorities within two weeks.

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 Kenyan Court of Appeals strikes down mandatory life imprisonment

[This is a guest post by Masoom Sanyal and Mahika Suri.]

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The Kenyan Court of Appeals recently rendered a landmark decision in the case of Julius Kitsao Manyeso v. Republic,  whereby a three-judge bench of the Court of Appeal declared mandatory life imprisonment unconstitutional in that jurisdiction. While most African and Asian countries are yet to abolish the death penalty, this ruling sets Kenya apart as a committed upholder of constitutional and human rights. Incidentally, no Kenyan court has declared the death penalty definitively unconstitutional. In 2017, the Court of Appeal in Francis Karioko Muruatetu & another v. Republic (“Muruatetu Case”) declared that the mandatory death penalty for murder was unconstitutional, but it was not the death penalty per se that the court held unconstitutional. This article seeks to analyze the recent judgment of the Kenyan Court of Appeals and the possible ramifications it can have.

Facts of the Case

The appellant in the present case was accused of the offence of rape of a child aged less than 5 years of age, under the Sexual Offences Act No. 3 of 2006 (“Act”). The trial court that found him guilty imposed the punishment of life imprisonment upon him. Further, the High Court dismissed the appeal, upheld the conviction, and confirmed the punishment. Against the judgment of the High Court, the appellant preferred an appeal to the Court of Appeal. In this appeal, the appellant inter alia argued that the High Court erred in law while upholding his conviction, by “failing to consider that the legal provision for a mandatory life sentence under section 8(2) of the Act denies the judicial officer their legitimate jurisdiction to exercise of discretion in a sentence not to impose an appropriate sentence in an appropriate case based on… the evidence,” which, the appellant argued, is unconstitutional since it violated Article 27 (1), 27(2), 27(4) of the Constitution of Kenya (“Constitution”). It is this final ground of appeal that led to the decision of the Court to hold life imprisonment unconstitutional.

The appellant contested that the prescription of mandatory life imprisonment as the punishment under Section 8 of the Act, is unconstitutional to the extent that it takes away the discretion of the Court to decide the quantum of the punishment, effectively forcing the Court to impose a sentence “predetermined by the legislature,” which is violative of the doctrine of separation of powers and the independence of the judiciary, as provided in Article 160 of the Constitution. It is notable here that the Court has previously held mandatory sentences as unconstitutional in a catena of cases.

The Judgement: An Appraisal of Human and Constitutional Rights

The Court in its judgment referred to a decision handed down by the Supreme Court in the Muruatetu Case, whereby the court declared mandatory death sentences imposed on those convicted of murder under Section 204 of the Penal Code as unconstitutional. Extending the reasoning adopted by the Supreme Court in the the Muruatetu Case , the Court of Appeal in the present judgment held that prescription of imposition of mandatory life sentence, without any possibility of mitigation whatsoever, was “unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the Constitution.” The Court also held that a compulsory life sentence without any possibility of mitigation was inhumane treatment for the purpose of Article 28 – the Right to Dignity – of the Constitution, while referring to the decision of the European Court of Human Rights in Vinter and others v. The United Kingdom. It is worth noting at this juncture that Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”) prohibits punishments which are “cruel, inhumane, or degrading” in nature. The Court also referred to the decision of the Court of Appeal of the United Kingdom in R v. Bieber, where the British Court held that mandatory life imprisonment without any scope of mitigation or release was “inhuman treatment.”

Expanding upon the human rights aspect, the Court cited the Supreme Court’s decision in the Muruatetu Case whereby it was held that the purpose of imprisonment should not be just retribution but also rehabilitation. Notably, Paragraph 3 of Article 10 of the ICCPR says that the “essential aim” of the penitentiary system shall be “reformation and social rehabilitation” of the prisoners. The Court also observed that the Kenya Judiciary Sentencing Guidelines lacked a precise definition of what constitutes life imprisonment and further asked the Parliament to determine by legislation the exact definition and constituents of what constitutes a life sentence.

Turning to Constitutional Rights, Article 51 of the Kenyan Constitution talks about the rights of persons detained, held in custody or imprisoned. More particularly, Article 51(3)(a) imposes an obligation on the Parliament to enact a legislation that provides for “humane treatment” of those imprisoned or in custody. It is on the basis of this constitutional obligation that the Court held the provision for mandatory life imprisonment as ultra vires, since in the view of the Court it amounts to “inhuman treatment.” Additionally, Article 51(3)(b) provides that the parliamentary legislation shall take into account “the relevant international human rights instruments.” This could also be the basis for striking down the said provision since, as seen in the preceding paragraphs, the ICCPR provides clearly for right to humane treatment and that the aim of imprisonment shall be to reform and rehabilitate.

Conclusion

In conclusion, after a thorough appraisal of the constitutional provisions and international human rights instruments, the Court of Appeal held categorically that the provision for mandatory life imprisonment, without any possibility whatsoever of mitigation of punishment, was in violation of the constitutional rights of the convict as well as his human rights. The provision for mandatory life imprisonment was also not in conformity with the internationally evolving jurisprudence and recent precedents from diverse jurisdictions, which the Court found persuasive and reliable. Therefore, having regard for the constitutional provisions, human rights, and precedents laid down by courts in diverse jurisdictions, the Court of Appeal finally held the provision for mandatory life imprisonment as unconstitutional.

A “ubiquitous power disparity”: On the Discharge Order of Sharjeel Imam et al.

[Unsurprisingly, this judgment was later reversed by a single judge of the High Court.]

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On this blog, we have discussed in some detail various judicial proceedings that have arisen out of the events of late 2019 and early 2020, commonly referred to as the “Delhi riots cases.” Most of these cases have involved bail applications under the Unlawful Activities Prevention Act [“UAPA”]. The judiciary’s conflicting orders in these cases (sometimes handed down by the same judge) have reflected a deeper tension in how our courts engage with the UAPA. There is a pro-liberty strain of judgments that subjects the State’s case to a degree of scrutiny, and refuses to fill in the gaps in the chargesheet through inferences and assumptions (see the bail order in Asif Iqbal Tanha); but there is also a pro-executive strain that does the exact opposite (see the bail orders in Safoora Zargar, Umar Khalid (I) and Umar Khalid (II).

In this context, the discharge order passed by Additional Sessions Judge Arul Varma, on 4th February 2023, in another of the Delhi riots cases, is an important addition to the pro-liberty strand. At the outset, we must note two features which distinguish this case from the bail cases discussed above. First, the case did not involve UAPA offences, and was limited (for the most part) to more benign offences under the Indian Penal Code. And secondly, the case was not about bail, but discharge. This very fact, however, is what makes the order significant: when a judge is deciding whether or not to frame charges against an accused, they must decide whether “there are sufficient grounds to proceed,” on the basis of the police chargesheet. Readers will recognise that this is a standard somewhat (although not entirely) similar to the prima facie standard under bail proceedings under the UAPA. Therefore, even if the case itself did not involve UAPA offences, Arul Varma J.’s reasoning is nonetheless significant and instructive in thinking about those cases where the UAPA is applied.

Indeed, the facts of the case show striking similarities with the UAPA cases that have arisen out of the Delhi riots (some of the protagonists – such as Sharjeel Imam, Safoora Zargar, and Asif Iqbal Tanha – are also arraigned in UAPA cases). The basis of the police case was that a protest organised in the area of Jamia University on 13th December 2019 – with the avowed objective of marching to Parliament to oppose the Citizenship Amendment Bill – turned violent, with stones being thrown at the police, and the deployment of tear gas. According to the chargesheet, the accused were all present at the scene, and were part of a common object and conspiracy to breach prohibitory orders and engage in an unlawful assembly.

The Court found, however, that at no point had it been alleged or shown that the accused persons had committed any overt act of violence. This, then, raised the question of whether the presence of the accused in an assembly that had allegedly turned violent and broken the law, was sufficient to charge them under the unlawful assembly provision of the IPC. Readers will recall that in the bail cases that we have flagged above, the facts were often similar: there was no overt violent act that could be attributed to an accused person, and therefore, the question boiled down to the extent to which the Court was willing to bridge the gap between the legal overt action (a speech, or presence at the scene, or the exchange of WhatsApp messages) and the allegation (conspiracy to commit riots, to engage in an unlawful assembly, etc.)

Arul Varma J, however, gave short shrift to any suggestion that it was the Court’s task to fill in the gaps in the prosecution’s case. He repeatedly noted that the Prosecution had failed to show any overt act – beyond presence – from which it could be legitimately inferred that the accused shared a common object. Following Supreme Court precedent, Arul Varma J noted that the standard was one of actual knowledge: that is, the accused persons should have known that an offence was likely to be committed in the course of the unlawful assembly. In this case, however:

There is no evidence on record which reflects that the accused herein were even aware that other protestors were armed or not. The accused were protesting against a piece of legislation, and sloganeering against enactment thereof. Positive knowledge that their sloganeering would result in such a maelstrom, is something that cannot be attributed to them sans any cogent proof. (paragraph 33)

While this may sound like basic common sense, it is significant in the present context. Recall, for example, that while denying bail to Safoora Zargar (see above) – despite the fact that no overt act of violence had been attributed to her – the trial court had noted that “when you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.” In other words, the trial court in that case had dispensed with any causal link between the accused’s act (a protest speech) and what the accused was in the dock for (riots). As is obvious, this standard expands the bounds of liability to an infinite degree, and stretches the concept of individual responsibility (arguably the backbone of criminal law) to the vanishing point.

Arul Varma J.’s order, on the other hand, showed a keen awareness of this problem. As he noted, relying upon Supreme Court precedent, protests are fluid events, and it is not the case that everyone who joins a (peaceful) protest that subsequently turns violent, has a common object of fomenting violence. To draw that link, there must be evidence of at least some overt act that casts light upon the object of the accused; however, if the accused’s presence at a protest that later turned violent was sufficient, then this – as Arul Varma J noted – would entirely collapse the distinction between (legitimate) dissent and (illegitimate) insurrection. It would, essentially, make the accused “vicariously liable for the acts of the mob” (paragraph 34). Relying upon the Supreme Court’s judgment in Masalti, Arul Varma J held that in these kinds of cases – involving mass protests – one would need to have more than one, consistent account of exactly what the accused did, in order to attribute a common object to them. This had not happened, and indeed, the Court came down heavily on the police’s attempt to improve its own case by filing a third chargesheet when the arguments on charge were almost over. Consequently, Varma J held:

It is apparent that the police has arbitrarily chosen to array some people from the crowd as accused, and others from the same crowd, as police witnesses. This cherry picking by the police is detrimental to the precept of fairness. (paragraph 38)

For the same reasons, the Court held that the case of conspiracy – which required a meeting of minds – had also not been met.

Finally, in his concluding remarks, Arul Varma J framed the issue as one where the State was obligated to draw a clear line between dissent and insurrection, especially in the context of protests like these, where the prosecution sought to blur them.

Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with. It would be pertinent to underscore that dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained therein. It is therefore a right which we are sworn to uphold. As laid down in P Vijayan (supra), this Court is duty bound to lean towards an interpretation which protects the rights of the accused, given the ubiquitous power disparity between them and the State machinery. (paragraph 45)

Apart from everything else, the last line is particularly important, as it constitutes a rare acknowledgement by a court that where two interpretations are possible, the judiciary – as the protector of fundamental rights – should lean towards the accused, given the immense structural power difference between the State and the individual. Indeed, one can see this underlying philosophy present throughout the order – in particular, in the Court’s refusal to fill in the gaps in the Prosecution’s case, and to insist that there be a demonstrable link between the act and the offence, one that requires something more than assumptions, inferences, and allegations of conspiracy to fill. One might be present at a protest and one might participate in a protest, but that does not automatically make one vicariously liable for every illegality committed in the course of that protest. To hold otherwise would be to outlaw protests themselves, and to turn Article 19(1)(a) into a dead letter. It is this fundamental insight – regrettably missed by so many courts in so many Delhi riots cases – that Arul Varma J grasped, and articulated it in pellucidly clear terms.

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

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

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

Select References:

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

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

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

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

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

Peter Alldridge, Money Laundering Law (Hart 2003).

United Nations Convention Against Corruption.

United Nations Convention Against Transnational Organised Crime.

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

FATF Follow-Up Report on India, 2013.

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Forfeiture Act of 1859.

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

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Tofan Singh vs State of Tamil Nadu.

Nikesh Tarachand Shah vs Union of India.

Ramanlal Bhogilal Shah vs D.K. Guha.

State of Bombay vs Kathi Kalu Oghad.

Satender Kumar Antil vs CBI

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

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