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

Introduction

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

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

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

The Order

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

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

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

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

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

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

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

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

Reflecting and Entrenching the Problem

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“The Past is a Foreign Country”: Illegal Detention and Redress before the Supreme Court of Kenya

In a judgment delivered yesterday (Mwangi Stephen Muriithi vs Hon. Daniel Toroitich Arap Moi), the Supreme Court of Kenya concluded a long-running dispute between two men who – literally – fought each other to the grave (at the time of the judgment, both parties were deceased).

The facts of the case went back to 1982, when Daniel Arap Moi was the President of Kenya. Mwangi Stephen Muriithi was arrested from his residence. His wife filed a habeas corpus petition before the High Court. At the High Court, the State produced a detention order under the (now repealed) Preservation of Public Security Act and the Public Security Regulations of 1978. Regulation 6.1 of these Regulations stated that “if the Minister is satisfied that it is necessary for the preservation of public security to exercise control, beyond that afforded by a restriction order, over any person, he may order that that person shall be detained.” The legality of the detention order was nonetheless challenged, on the basis – inter alia – that the Regulations had lapsed. However, the High Court rejected this challenge, holding that Muriithi had been “detained in lawful custody under the Preservation of Public Security Act and Regulations.” (para 7)

Time passed. In 2002, President Moi was voted out of office. And in 2009 – in a greatly changed political climate – Muriithi filed a constitutional petition against Moi, arguing that the detention had violated his constitutional rights to liberty and property (one interesting twist in this case was that Muriithi and Moi were business partners, and Muriithi alleged that Moi had detained him in order to dispossess him of his proprietary rights).

Muriithi won in the High Court (in a judgment that included a fascinating analysis of horizontality under the new Kenyan Constitution), but lost in the Court of Appeal. The case came before the Supreme Court. The Supreme Court agreed that the 1982 habeas corpus petition did not foreclose further litigation with respect to the breach of constitutional rights, and that, indeed, Muriithi’s constitutional rights had been violated. However, as Muriithi’s detention had been an act of State, he ought to have impleaded the Attorney-General, instead of proceeding against the President in his personal capacity. On grounds of misjoinder, therefore, the Supreme Court – by a narrow 3-2 majority – declined to grant relief.

Some scholars have critiqued the majority judgment for its excessive formalism. In this blog post, I want to flag four interesting issues – one from the majority, and three from the dissenting opinions of Ibrahim and Njoki JJ.

First, the majority considered the interlinkages between habeas corpus and preventive detention. The majority held that as the purpose of a habeas corpus petition was solely to produce an individual before the Court, so that it could be verified whether his detention was formally valid under law, it did not preclude further litigation alleging that the detention violated that individuals constitutional rights (such as the right to liberty, to fair trial, and so on) (para 68). This is in itself important, as it prevents detention laws from turning into self-contained blackholes: there could be a formal law that authorises detention, which could still violate constitutional rights and fundamental freedoms. In other words, detention under law would not preclude the Court from applying its usual constitutional scrutiny in adjudicating rights violations. One may compare this with the Indian courts’ feather-light scrutiny of detention orders – and, in particular – the refusal to apply the doctrine of proportionality to cases of detention.

But then the majority – in my view – did something even more interesting. In paragraph 71, it noted:

… the Preservation of Public Security Act empowered the Minister responsible for internal security, to issue an Order for the detention without trial, of a person who in the opinion of the Minister, was a danger to public security. Hence, the objective of the writ of Habeas Corpusis to secure the liberty of a person, while that of the Preservation of Public Security Act was to achieve the opposite; that is, to limit the liberty of a person. The procedure under the former, is judicial while the one under the latter, was administrative.  The effect of the aforesaid Act therefore, was to render the writ of habeas corpus inoperable. At the time of the deceased’s detention, what was produced before the Court following an application for Habeas Corpus, was not a body, but of a Copy of an Order, ousting the Court’s authority to inquire into the legality of the deceased’s detention.

In other words, the Court held that the effect of the Public Security Act – a preventive detention law – was to “render habeas corpus inoperable.” Note that the Court was not talking about formal inoperability here. Habeas corpus was not explicitly suspended. But it was effectively made useless by virtue of a preventive detention law. What the Court was essentially saying, therefore, was that in effect, preventive detention laws and the habeas corpus cannot co-exist: the moment you have a preventive detention law, you are nullifying effective habeas corpus. Going back to first principles, what the Court seemed to be getting at here was that the basic purpose of a habeas corpus writ was release from unlawful custody. Preventive detention laws simply turned what would otherwise have been unlawful custody (i.e., detaining someone without them being booked or charged for an offence) into lawful custody. As pointed out above, in a formal sense, they left habeas corpus standing; but in a real sense, the writ became pointless, because to get around it, all you had to show was a formally, legally valid detention order under the Act.

But the consequences of this are important. As the majority itself noted, the Kenyan Constitution now contains a non-derogable fundamental right to habeas corpus. It then follows from this that under the Constitution, there cannot exist a constitutionally valid preventive detention law, under any circumstances. As far as I am aware, this has not been explicitly held before. Thus, even through its seeming formalism, in my submission, the majority advanced jurisprudence further in the direction of liberty.

Secondly, in his dissenting opinion, Ibrahim J. looked into the important question of burdens and standards of proof: had Muriithi sufficiently demonstrated that business loss? The question turned upon who bore the burden of proof. Crucially, Ibrahim J. noted that:

… commonly where there are human rights violations by the state, or by persons utilizing state machinery, what frequently happens is that victims of such violations have their access to vital information hampered. This is often done in order to curtail the victim’s ability to effectively pursue challenges in court. It is why several international human rights bodies have recognized, in a general sense, the merits of allocating the burden to the state where the state has greater access to information. For instance, the Inter-American Court held that the state’s defense cannot rest on the impossibility of the complainant to procure evidence, when it is the State that controls the means of clarifying facts (Bamaca-Velasquez v. Guatemala, Case No. 11,129, IACtHR, Merits (Nov. 25, 2000), para. 152). The European Court in the case of Betayev and Betayeva v. Russia, App. No. 37315/03, ECtHR (May 29, 2008) held that where the applicant makes out a prima facie case and the Court is prevented from reaching factual conclusions owing to the lack of documents, the burden shifts to the government to provide a satisfactory and convincing explanation of how the events occurred. (para 105)

It is difficult to understate how important an observation this is. It is a well-known fact that especially at times – and in areas – of conflict and human rights violation, holding the State to account is a difficult, if not impossible, task, precisely because access to information and to evidence is under State control. One will, of course, remember the recent Indian Supreme Court judgment in Himanshu Kumar, where the Court not only exonerated the State in a petition seeking investigation into extra-judicial killings, but jumped upon the alleged insufficiency of evidence to impose costs upon the petitioner, as well as suggest that they be prosecuted. Ibrahim J.’s clear articulation of the principles at stake – and the wealth of precedent – in his opinion demonstrates once again how, on core civil rights issues, Indian jurisprudence is regressing at a terrifying pace.

That detour apart, what is refreshing here, of course, is an acknowledgment one rarely sees in judicial opinions: that of the structural imbalance of power between the State and the individual, especially in terms of control over access to information and evidence, and the role of the Court in redressing that imbalance in order to ensure the true existence of a “culture of justification.”

Thirdly, Ibrahim J. referred in some detail to the political situation prevailing in 1982. In paragraph 107, he observed that:

… it is well recorded that President Moi was all powerful and had control over branch of government. His was a dictatorial state. Further, it is well documented that Former President Moi used arrests and detention without charge to repress his opponents and deemed adversaries in the years following the attempted coup in 1982 as well as throughout the struggle for multiparty politics.

Therefore:

From this recorded history it would be reasonable to believe the Appellant’s account that the former President was not only involved but was the author of his detention for a period over three (3) years. (para 109)

For Ibrahim J., therefore, the reality of State power at the time had to prevail over the formal distinction between “acts of State” and the President’s own acts. In other words, the Court had to take into account – particularly when it came to an authoritarian context – the fusion of State and personal power, and fashion remedies for rights violations based on that understanding. This, again, is fascinating reasoning, and from which there is a lot one may learn. As Ibrahim J eloquently noted:

The authority the President had at the time, the nexus created by the detention Order, the resultant interference of the appellants person liberty and the deprivation of his right to property are too glaring for me sitting on this Bench to turn a blind eye. (para 112)

And finally, Njoki Ndungu J., in her dissent, looked back into the past, and observed that “it is important for the State to be consistently aware that past conduct of its officials and agents will no longer remain unpunished.” (para 136) In her view, the purpose of litigation such as this was not merely individual redress, but the broader goal of ensuring that “never again” was a vow that was constantly renewed, including through litigation and the courts: a repudiation of the oft-stated dictum, “the past is a foreign country.” In particular, her focus on not just the State, but of “officials and agents” affirmed that the violation of rights is not merely the function of impersonal, abstract State power, but of individuals who exercise that power; and the purpose of rights litigation is not merely to hold the abstract entity of the State to account, but also the individuals who have used the State as a vehicle to abuse power.

Ultimately, of course, the majority view prevailed, and the now-deceased Muriithi did not get relief. However, as we have seen, there is a lot in both the majority and the dissenting opinions that repays close study, and lines of thought and argument that could form the basis of future, progressive jurisprudence. It will be interesting to see what path that jurisprudence does take.

Guest Post: The Doctrinal Discomforts of Default Bail

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

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

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

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

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

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

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

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

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

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

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

Proportionality in Remand: Lessons from Kenya

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Post: The Arup Bhuyan Review

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

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

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

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

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

What has the Court done in Arup Bhuyan (Review)

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

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

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

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

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

The Many Missteps of Arup Bhuyan (Review) 

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

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

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

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

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

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

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

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

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

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

Is the Glass Still Half Full?

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

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

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

Guest Post: Justice in Courts of Inquisition? The Delhi High Court on UAPA Remand Extensions

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

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A person should not be condemned without knowing why. One would think that this precept is not a point of debate in the legal system of a constitutional, democratic, republic. After all what personifies the shift from a culture of impunity and subservience to one of justification than the ability of individual citizens to ask questions and demand answers from those in power. This does not stop at the ballot box, but pervades deep into the fabric of how things are done, and ought to be the unshakeable cornerstone of how criminal law with its censure and punitive sanctions is administered. 

Yet, time and again, we are politely reminded to not take anything for granted. Slotting in nicely within this bucket is the recent decision of the Delhi High Court in a batch of appeals concerning the application and interpretation of Section 43D(2)(b) of the Unlawful Activities Prevention Act 1967 [UAPA] [Zeeshan Qamar v. State of NCT Delhi, Crl. Appeal No. 405 / 2021 and other connected petitions, decided on 24.02.2023(“Zeeshan Qamar“)]. 

Time Limits on Investigations and their Consequences

What was the issue? Let’s read the provision:

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), — 

(a) the reference to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:–

“provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days.”

[Emphasis mine]

In a previous post on the blog, we discussed Section 167 of the Criminal Procedure Code 1973 [Cr.P.C.] and its time limits for investigation. The logic behind having these limits was an implicit recognition by Parliament that custodial detention was an integral part of investigations and the status quo allowed for persons to be detained for prolonged periods during an investigation, and bail in non-bailable cases was not easy to get. The time limits were supposed to act as a means to speed up investigations, by sending a message that failure to complete investigations on time would entitle a person to release. The move came with a clear-eyed recognition that giving these time limits may send the wrong signal and suggest that the law treated pre-trial detention of up to sixty (and later also ninety days) as acceptable, and a hope that the police and courts would not get the wrong idea.   

Section 167 was possibly one of the most radical interventions made in the administration of criminal law yet. It was only natural for it to have its detractors. In 1975, the Supreme Court in Natabar Parida [AIR 1975 SC 1465] made its displeasure apparent when it observed that such a law “may be a ‘paradise for criminals’, but surely it would not be so, as sometimes it is supposed to be, because of the courts. I would be so under the command of the Legislature.” Hardly a year later the Gujarat state government had taken steps to increase the time limits, and a few years after that we had Parliament itself amend Section 167 to provide for the ninety day limit for certain crimes. It was no longer obvious as to whether the idea of sixty / ninety days being an acceptable pre-trial detention was a wrong one or not.

The introduction of Section 167 Cr.P.C. and its swift amendment suggests the sense of unease within the state machinery which naturally accompanied such a radical departure from the norm. It was unsurprising for further, and significant departures to be made to Section 167 when Parliament sought to confront armed separatist movements in the 1980s, and suggest to the world that it took its international obligations on enforcing drug laws seriously. Detention up to a year became permissible if it could be shown that the investigation could not be concluded within the time period, and unsurprisingly, it also became the norm as these special laws made getting bail even harder than what was possible in ordinary circumstances. 

The issues and conclusions in Zeeshan Qamar

In this context is how we must view introduction of safeguards for how this extension of the permissible maximum period of pre-trial detention could occur. The law introduced a requirement for a report to be filed by the public prosecutor indicating the progress of the investigation and giving clear reasons why the further custodial detention of an accused was required. 

What was in issue before the Court in Zeeshan Qamar — and not for the first time as such — was whether this report by the public prosecutor ought to be shared with the accused at the time when a court is hearing the request for extending the period of maximum permissible pre-trial detention under Section 43D(2)(b) of the UAPA. The batch of appeals were all filed at separate points of time challenging the extension, and in most of them the accused were denied a copy of the prosecutor’s report. This led to them being clubbed together for hearing, and the High Court framing and deciding issues on the process of Section 43D(2)(b) extensions besides deciding on the validity of the extensions in these specific appeals. 

These issues which the High Court framed were as follows (Para 4):

• Whether the prosecutor’s report should be shared with the accused at the time of extension of time for a further period beyond 90 days?
• Whether the court “should satisfy three requirements” at the time of extension of remand i.e. (i) what is the progress of investigation, (ii) whether further investigation is required, and (iii) whether continued detention is required for this further investigation?
• Whether the court can extend remand for ninety days in one go, or should it be in a truncated manner to oversee the progress of investigation.

The conclusions that it returned (in serial order) were as follows (Para 13):

• The report is not required to be provided at the stage of extending remand, but the accused should be “informed” about the same to ensure she is not a “silent spectator” and the court must consider the submissions on behalf of the accused. 
• The “essential requirements” to be considered are: (i) reasons for the prosecutor’s satisfaction about progress of investigation, (ii) reasons why 90 days are not enough, and (iii) details of what further investigation is required for which further time is sought. These three considerations must be part of the prosecutor’s report.
• The court must consider the report carefully and can grant 90 days in one stretch, and if it does not then the agency can re-agitate its demand for the remaining period if need be. 

I will turn to the first conclusion, which is the focus of this post, in the next section. But before that, a word on the other two answers offered. The discussion on issue (ii) suggests that the court did find that the prosecutor’s report must also indicate why continued detention is necessary, although the conclusion itself is somehow silent about that aspect. What is perhaps unsurprising is that the High Court offers a rather low threshold of just what must be shown to satisfy a court that the completing the investigation was not possible. On issue (iii), the High Court in its discussion encourages courts to carefully peruse the facts and determine just how long an extension is necessary and not grant blanket extensions for a further 90 day period. This is not captured fully in the conclusion, which merely focuses on it being legally permissible for a court to indeed grant 90 days in one stretch if it feels this is necessary. 

The ‘Silent Spectator’ Paradox

Which now brings us to the first issue, on sharing a copy of the report. To its credit, the High Court did not try and avoid a discussion but gave its own independent reasoning for why the report ought not to be shared (Paras 6.11 to 6.14). 

This logic is straightforward — the report must necessarily have details about the investigation which if shared with the accused could prejudice the ongoing probe and, in any event, this material would be inextricably linked to material in case diaries that the accused has no right to see in the first place. The main plank for the court’s reasoning, therefore, was that an accused “has no right to know the progress in an investigation.” 

With due respect, this is deeply flawed at multiple levels. At the most fundamental level, if we assume that India is a constitutional republic recognising and guaranteeing the right to personal liberty (arguably an acceptable assumption) then while a person may not have any independent right to know the progress of an investigation, she certainly has a right to know about it if this investigation is the basis for keeping her in pre-trial custody when she is presumed to be innocent. 

It would be different if my custody was independent of the merits of an investigation. But the very nature of Section 43D(2)(b), UAPA makes it clear that it is only because of the merits that my further custody is being sought. Pre-trial detention is the most obvious and glaring deprivation of personal liberty, and my right to contest it is meaningless if I do not know on what grounds am I being kept behind bars. Being able to question deprivations of liberty and demand justifications cannot be de-linked from being a constitutional republic. Its non-negotiable.  

It is equally flawed at one level removed from this most basic argument. Accused persons are regularly given some kind of update as to the investigation every time police oppose bail applications by way of filing a response during the pendency of the investigation. Similarly, the accused is also given update on the investigation when police seek custodial remands (and not judicial custody). It is nobody’s case that the contents of these replies and applications are not derived from case diaries, but this linkage only means that it is incumbent upon the agency to walk that tightrope between securing its sources and giving enough of a clear answer to the accused whose fundamental rights are being deprived with each day in custody. 

If we accept the logic in Zeeshan Qamar, then the nature of remand and bail hearings (where bail is filed during investigation) stands irrevocably and disastrously transformed by taking out the most affected party — the accused in custody — from the equation by which we expect the court to make a fair decision on whether or not custodial detention should be extended further. Remand becomes a fiefdom of the State — one arm (executive) talks to the other (judiciary) to decide what’s best and the citizen should sit back and accept her fate as a collateral consequence. 

One senses that the High Court recognised this was a problem when it agreed that an accused cannot become a ‘silent spectator’ to the process by which her liberty is being decided. But the court answers this problem by tying itself in knots rather than offering any meaningful safeguard, for the only real safeguard had already been denied.  

Facing the Facts

We can view Zeeshan Qamar as an aberration and continue preaching the gospel of India’s transformative constitution and its dharma of fairness. Or we can face the facts, that criminal justice was and continues to be deeply entrenched in a feudal mindset where the perceived brightness of the constitution is yet to shine all too brightly. An accused has a qualified right to get a copy of the first information report, does not have the right to a lawyer during questioning, does not have the right to a lawyer even during custody for some kinds of cases (PMLA), and now does not have the right to know the basis upon which the state wants to extend the permissible period for his custodial detention. 

Transformative indeed. 

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

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

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

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

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

Bail under UAPA and the presumption of innocence

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

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

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

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

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

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

The prima facie standard and the equality of arms

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

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

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

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

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

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

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

Arup Bhuyan and the right to effectively defend oneself

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

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

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

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

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

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

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

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

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

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

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

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

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In 2011, the Supreme Court delivered three significant judgments relating to association-based offences under anti-terror laws. While Arup Bhuyan v. State of Assam and Indra Das v. State of Assam were delivered in the context of Section 3(5) of the Terrorist and Disruptive Activities Act (TADA), State of Kerala v. Raneef pertained to Section 10 of the Unlawful Activities (Prevention) Act (UAPA). All three held that mere membership of a banned organization is not a criminal offence. Instead, the prosecution must establish active membership furthering illegal activities of such an organization, by means of violence. When the Union of India sought review of the judgments, in 2014, the Supreme Court referred the matter to a larger bench to determine the contours of association-based offences under the law. The decision of the larger bench is presently awaited.

While the questions of law implicated in the review warrant separate scrutiny under Article 19, on the touchstones of the freedom of speech and association, here I propose to analyse the implications of an expanded reading of association-based offences specifically on the right to fair trial. Section 43D(5) of UAPA infamously encodes an effective bar on bail in case the court has reasonable grounds to believe that the allegations against the accused are prima facie true. Contrary to the Code of Criminal Procedure, where bail is subject to judicial discretion on grounds of protecting the investigative and judicial processes, under UAPA, accused remain under indefinite custody even before conviction based simply on prima facie satisfaction of the offence. The issues at stake in the review carry implications not only for the scope of criminalization and punishment upon conviction, but equally significantly for the presumption of innocence and equality of arms under anti-terror laws.

I proceed with this analysis in a series of two posts. In the present post, I offer a brief background of association-based offences under the UAPA juxtaposed against state practise. I follow that up with a second post that specifically analyses the relationship between the definition of offences, right to bail and the right to fair trial. 

Association-based offences under UAPA

As originally enacted in 1967, the UAPA empowered the central government to ban associations declared as unlawful under Section 3. An unlawful association is one that has as its object an “unlawful activity”, or activities that undermine the sovereignty, territorial integrity or communal harmony of the State (Section 2(o) read with Section 2(p)). Accompanying this power to ban unlawful associations, the UAPA also encodes a series of offences criminalizing membership of (Section 10) and support to (Section 13) an unlawful association. Separately, Section 13 also criminalizes support for an unlawful activity even if the organization has not been banned, as held in Redaul Khan v. NIA. These offences are defined under Chapter III.

After the repeal of Prevention Of Terrorism Act (POTA) in 2004, the UAPA was amended to incorporate POTA provisions relating to terrorist organizations and activities under Chapters V and VI, with special procedures for investigation and prosecution under Chapter VII. Here, the central government is empowered to ban a “terrorist organization” under Section 35. A “terrorist organisation” is defined as an organization that is involved in “terrorist act” threatening the sovereignty, territorial integrity or economic security of the State by causing destruction to life, property, essential services, etc. (Section 15 read with Section 35(3)). Here, too, Section 38 criminalizes membership, and Section 39 criminalizes support, to a terrorist organization. These offences are defined under Chapter VI of UAPA.

Section 41 clarifies that a banned organization will be deemed to continue in existence even after formal dissolution, as long as any of its members continue in association with each other under any name or capacity. For the purposes of this analysis, I include within the ambit of association-based offences all of the above offences relating to membership and support to organizations, banned either as unlawful or terrorist.

In both Arup Bhuyan and Indra Das, the Supreme Court read down Section 3(5) of the TADA, which criminalized membership of banned organizations, in light of Article 19. Although the text of UAPA and TADA is different, the Supreme Court also read down Section 10 of UAPA in Raneef in the same year on the grounds of Article 19 and 21. Here, the Court relied on US Supreme Court judgments in Elfbrandt v. Russell, Scales v. United States, and Noto v. United States, among others, to reject the doctrine of guilt by association. These decisions found that not all activities of a proscribed organization would fall within the ambit of illegality. The law also cannot touch all forms of association with a banned organization. By distinguishing between the legal and illegal objects of an association, the Court found that to constitute an offence of membership under the law, the prosecution must establish that an individual is implicated in furthering the illegal objects, and not only the legal objects, of the banned organization.

The Supreme Court further relied on Kedar Nath v. State of Bihar, approving the standard of imminent threat of violence while reading down Section 124A IPC as being equally applicable to the definition of terror offences. To quote from Indra Das on Section 3(5) of TADA:

In our opinion, Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It has to be read in light of our observations made above. Hence, mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.

Accordingly, the offence of membership would require active participation with the specific intent of furthering the illegal objects of the association by means of violence.

Recently, in Thwaha Fasal, the Supreme Court extended this logic of active membership to also hold that support to a banned organization per se in not criminalized under Section 13, unless it also carries a nexus with “unlawful activity” as defined under Section 3. Although both Raneef and Thwaha Fasal were delivered in the context of offences under Chapter II (unlawful activities), the proposition has also been extended to offences under Chapter VI (terrorist organizations and individuals).

State practise relating to association-based offences

Even though the Supreme Court has thus far been unequivocal regarding the content of association-based offences under the law, this has been belied by the practise of investigative agencies that routinely invoke UAPA special provisions for allegations of membership and support to activities that would not otherwise qualify as unlawful or terrorist.

Consider the allegations in a few recent UAPA cases. In Thwaha Fasal, the allegations against the accused law students were possession of literature, banners and pamphlets of a banned organization. In Raneef, the accused was a doctor who extended medical treatment to PFI members allegedly injured in an unlawful activity. Also consider the actions of the Tripura police in 2021 following communal violence in the state, where it issued notices to Twitter, Facebook and YouTube to censor 102 account-holders for their posts relating to the communal violence, on the grounds that an FIR under Section 13 UAPA of supporting unlawful activity had been registered against them.

Under the active association standard, none of these actions would constitute offences under the law, as these were not undertaken with the specific intent of furthering violent activities of banned organizations. Yet, this state practise of invoking UAPA while disregarding the Arup Bhuyan line of precedent is one factor behind the low conviction rates under the law. It is this position that is under challenge before the Supreme Court, such that any form of association with members or activities of a banned organization stand to be criminalized. Rejecting the active association standard widens the ambit of criminalization under the law, potentially directly impacting conviction rates.

However, even before the offence may be proved beyond reasonable doubt leading to conviction and punishment for the accused, a wider reading of association-based offences legitimizes the arrogation of special powers and procedures for executive agencies in investigations and prosecutions under the law.

This is because the UAPA is a special criminal law that vests extraordinary investigative and prosecutorial powers in the executive not available to it under the so-called ordinary law in the Code of Criminal Procedure (CrPC) and the Indian Evidence Act (IEA). The trigger for the application of these special powers is simply the allegations in the First Information Report (FIR), where UAPA offences may be added either at the time of recording of the complaint itself, or even subsequently. As this relates to the stage of investigation, the discretion to invoke UAPA lies entirely with the police or the executive, and is (largely) not subject to judicial review. A person may eventually be acquitted, but would have nevertheless been subject to special investigative and prosecutorial powers of the State throughout the pre-trial and trial stages.

This scheme of powers has led some scholars to comment that anti-terror laws encode “dual and parallel systems of justice”, where the same offences may be arbitrarily subject to ordinary criminal processes under the CrPC and IEA, or to special processes under UAPA and National Investigating Agency Act (NIA Act).

The earliest stage at which the discretion of the police to invoke UAPA may be reviewed is at the time of obtaining sanction for prosecution under Section 45. This is an internal form of review, where the central or state government itself renders an opinion on whether prosecution under UAPA is warranted. The first stage of independent review by a judicial mind is at the time of discharge (Section 227 CrPC) or framing of charges under Section 228 CrPC. Even at this stage, the prosecution need only satisfy the court that prima facie grounds for invoking UAPA offences exist. Both these stages, of sanction for prosecution and framing of charges, enter the picture after the culmination of investigations, where the investigative agency has already availed of special powers and submitted their chargesheet.

These special investigative powers include intercepting communications of accused for collection of evidence without their consent under Section 46; seizing or attaching property of accused or related persons as ‘proceeds of terrorism’ under Chapter V, transferring investigation from state police to the NIA under Section 6 of the NIA Act; remand and trial by special NIA courts irrespective of the investigative agency; among others.

For our purposes of the right to fair trial and the presumption of innocence, the UAPA also imposes extraordinary burdens on liberty through its remand and bail provisions. These include prolonged pre-trial detention for filing of chargesheet extending up to a period of 180 days under Section 43D(2) (as opposed to sixty/ ninety days under Section 167 CrPC); prolonged police custody for a period of thirty days (as opposed to fifteen days under CrPC); and most notably, the effective prohibition on bail under Section 43D(5). For Chapter VI offences relating to terrorist organizations and individuals, UAPA provides for indefinite incarceration of accused by prohibiting bail based on prima facie satisfaction of allegations. This incarceration continues irrespective of the eventual acquittal or conviction of the accused.

Here, the grant or refusal of bail is contingent not on the needs of investigation and judicial processes, but exclusively on offence-based grounds. Accordingly, the scope of association-based offences under the UAPA burdens the liberty of the accused even prior to conviction, thus significantly undermining the presumption of innocence and the right to fair trial. This will be elaborated in the following post.

The Madras High Court’s Judgment in Sunitha vs Additional Chief Secretary – II: Waking Up to the Abuse of Preventive Detention Law [Guest Post]

[This is a guest post by Varun Ahuja.]

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On 14^th November 2022, a Division Bench of the High Court of Madras delivered a scathing judgement indicting the State for misusing the preventive detention law. Titled Sunitha v. State [HCP(MD) No. 1710 of 2022], the Court quashed two preventive detention orders passed under the Tamil Nadu Goondas Act, 1982. Both the Orders were quashed on the ground that the activities alleged did not fall under the purview of disturbance to ‘public order’ (Para 41 & 56). Notably, the Court recognized that repeated illegal detention orders would amount to a constitutional tort (Para 26) and awarded a compensation of Rs. 25,000 in one of the cases to be paid by the Additional Chief Secretary, who was the detaining authority in the case. This was not the first time that the Madras High Court awarded compensation for illegal preventive detention. In September 2022, the Court awarded 5 lakhs compensation to the detenu who was kept in illegal custody for 128 days after the Advisory Board opined that there was no sufficient cause for their detention (Manokaran v. State, HCP. No.297 of 2022)

The judgement has been discussed on this blog before. It has been correctly lauded for recognizing a pattern of abuse by the executive and for providing a remedy (compensation) in cases of illegal preventive detention orders. This post will primarily deal with the use of data by the Court to reach the conclusion that the State is misusing the law of preventive detention. Additionally, it will compare another judgment from the Manipur High Court, which conducted a similar exercise, but stopped short of providing substantial remedy to the detenu.

Dearth of Data

It is settled law that the powers of preventive detention are extraordinary in nature and cannot be used in place of ordinary criminal procedure. But how does one prove that the law is being misused by the State? The power to detain a person preventively has been in operation ever since India became an independent Country (and even before). However, there has always been a vacuum with respect to data on the number of persons being detained. Earlier, fragments of the data could have been accessed through Questions in Parliament (See here and here) or through Parliamentary debates (See Columns 9981-82). It was only in 2017 that the National Crime Records Bureau (NCRB) started publishing data on the number of persons detained every year.

In 2017, NCRB started publishing statistics on the persons detained under the various preventive detention laws in its Crime in India Report. A plain reading of the total number of persons detained show the rise in the use of preventive powers of the State. On an average, the State detains close to ninety-five thousand people under various preventive detention laws every year.

Year	No. of persons Detained
2017	67,084
2018	98,768
2019	1,06,612
2020	89,405
2021	1,10,683

Recently the Supreme Court, in Mallada K Sriram v. State of Telangana, 2022 SCC OnLine SC 424, highlighted the abuse by the State of Telangana of its Goondas Act, 1986 and termed its repeated use ‘a callous exercise of the exceptional power of preventive detention.’ In that case, too, the Court made use of data and noted that:

It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. [Emphasis Supplied]

The High Court refera to this judgement (Para 8) and goes much further in conducting a granular exercise to point out the abuse of power by the State.

High Court’s Analysis

The Court relies upon the Prison Statistics India Reports published by the National Crime Records Bureau (Para 5) to show that the State of Tamil Nadu has had the highest numbers of detenus since 2011. However, the Prison Statistics only show how many detenus were in jail as on 31st December of the year the Report is being published and not the number of detention orders being passed each year. To buttress their point further and show the frequent use of the law, the Court relies upon the ‘Crime Review, 2020’, a Report published by the Tamil Nadu State Crime Records Bureau which indicated that 84.3% of all detentions in the State (2457 out of 2913 orders) were passed under the State Goondas Act (Para 10).

A source of dismay for the Court seems to be the statistics with respect to habeas corpus petitions disposed by the Madurai Bench from January 2022 till 31 October 2022 (Para 17). The results from this dataset is strikingly similar to a larger study conducted of the habeas corpus petitions decided by the Madras High Court (both the Benches) from the year 2000 till January 2022 (total of 7,448 cases over 22 years) under all preventive detention laws operational in the State. The study revealed that an overwhelming 95% of the cases (7,096 out of 7,448) emanated from the Goondas Act; in the Court’s dataset this proportion was 72% (961 of 1,332 cases filed). The Study states that 87.9% of the petitions (6,547 out of 7,448) were ‘successful’ i.e. the detention order was rendered illegal; the Court has a similar finding of 84% of the petitions decided (598 out of 708). In the Court’s data for the year 2022 there was not a single detention order which was upheld on merits; the Study paints a similar picture showing only 1.8% of the cases (136 out of 7,448) which are allowed on merits.

An important objective of the Study was to find how much time the High Court took in deciding a habeas corpus petition – arguing that the blame for violating personal liberty lies on the doors of the Executive as well as the Judiciary. Under the Goondas Act, the maximum period of detention is prescribed as 12 months (Section 13). The study showed that calculating from the date of filing of the petition, the Court, on an average, took 141 days (a little less than 5 months) to decide a case and in its dataset, at least 30 cases were dismissed as infructuous due to the expiry of the detention period and 722 cases were dismissed as the detention order was revoked by the Government (collectively amounting to 10% of the cases). On the other hand, the Court’s dataset shows that at least 15.5% of all the cases (110 out of 708) were disposed as ‘closed’ i.e. infructuous owing to time and revoked by the Advisory Board (Para 18).

The departure in Sunitha’s casefrom the other judgements challenging detention orders has been to not overlook the significance of this delay but to acknowledge it and provide for practical remedy. The Court begins the judgement in Para 3 with the lament that orders in such cases take ‘at least 4-6 months’ to be decided ‘owing to the existing backlog of cases’ (reiterated in Para 15). This acknowledgement is important because a speedy disposal of such petitions will help keep the State in check and prevent wilful abuse of its extraordinary powers.

In a Similar Vein

It is not the first time a Court has used data in a challenge preventive detention order to prove indifference of the State. While the Supreme Court in Mallada provided numbers of detention order quashed, another judgement from the High Court of Manipur had conducted a detailed analysis on why detention orders were being routinely quashed.

In Ningthoujam Yamba Singh v. State of Manipur, 2018 Cri LJ 466, the Manipur High Court was considering a detention order passed by the District Magistrate under the National Security Act, 1980. The detenu in this case was a Rifleman of Army Supply Corps (ASC) and was arrested in a case of kidnapping and extortion when the detention order was issued. The Order was quashed because even though it recorded that there is a likelihood of release of detenu on bail, no material was placed before the detaining authority that would indicate the same (the Court relied upon Union of India v. Paul Manickam, (2003) 8 SCC 342)

The Court went on to tabulate details of 39 cases (Para 16) where it had quashed the detention order on the identical ground – non application of mind as regards the satisfaction of the detaining authority that the detenu is likely to be released on bail in near future. It also pointed out that in spite of at least 4 previous judgements (W.P. (Cril). No. 37 of 2013, W.P. (Cril) No. 37 of 2016, W.P. (Cril) No. 35 of 2016 & W.P. (Cril) No. 36 of 2016), where the Court had passed directions to the Chief Secretary of the State to circulate the judgement laying down the correct law, the officials were still passing illegal orders (Para 21-23). The Court even registered a suo-moto case since the detenu in that case was affiliated with the Army and continued to be in its employment even after detention orders were issued against him. The case was titled In Re Detention Under National Security Act, 1980, PIL 28/2017 and the decision date as shown on ecourts is 20-06-2018; however, no judgment is uploaded by the Court, nor is it available on any other website.

The Manipur High Court, however, left the Sate with a warning:

28. It may be also noted that this Court may be constrained to pass appropriate orders in future against those persons responsible for issuing defective detention orders by way of imposing exemplary costs who continue to issue such defective orders as these defective orders may amount to illegally detaining persons and violating their Fundamental Right as guaranteed under Article 21 of the Constitution. [Emphasis Supplied]

However, this warning has been reiterated by the same the Court again and again quoting the same observations from Ningthoujam Yamba Singh but no action has been taken. Therefore, it is in this context that the Madras High Court’s judgement in Sunitha does not pay lip-service to the cherished right of personal liberty but ensures that the State will have to suffer consequences for its wilful disregard of the same. Only time will tell if compensation is deterrent enough to prevent abuse of the powers but it is a welcome change from the current status quo of absolute impunity.