Guest Post: Dr. Kafeel Khan and our Punitive Preventive Detention Law

[This is a guest post by Abhinav Sekhri, and is cross-posted with permission from The Proof of Guilt blog, where it first appeared.]


On August 11, the Supreme Court had requested the Allahabad High Court to expeditiously decide the habeas corpus petition filed by Nuzhat Perween for her son, Dr. Kafeel Khan. The petition challenged orders for his preventive detention under the National Security Act of 1980 (NSA) that were passed on February 13, 2020. Initially filed before the Supreme Court in February itself, the petition was sent to the Allahabad High Court in March, where it was heard multiple times before, finally, on 01.09.2020 a Two Judges’ Bench passed a judgment in Nuzhat Perween v. State of UP and Anr., [Habeas Corpus WP No. 264 of 2020 (decided on 01.09.2020)] declaring the detention order illegal and directing Dr. Khan’s immediate release. 

Unlike that last time that a judicial authority directed his release on 10.02.2020, following which Dr. Khan was not released but instead led to the impugned detention order being passed, this time Dr. Khan has indeed stepped out of prison and as of now has not been arrested in any other proceedings.

Background to the Preventive Detention

Dr. Khan’s prevention detention under the NSA is only the most recent episode of the state machinery training its attention on him and depriving him of his personal liberty, only for a judicial authority to direct his release. 

According to the state, what prompted the order on 13.02.2020 was a public speech given by Dr. Khan in Aligarh to a group of students on 12.12.2019, i.e. an event more than two months old. It was stated that the speech incited feelings of communal disharmony and it also lent itself to violent protests by groups of students on 13th and 15th December in Aligarh District. The proposal for preventive detention, made on the same date as the order, stated that “Since the fierce and communal speech given by him has had an adverse and unfavourable impact on the public order of the District, therefore it is very important to keep this person detained in jail to maintain the public order. (emphasis mine)” Take a close look at the last line above — preventive detention was necessary to keep Dr. Khan in jail. Why was he in jail, you ask? Because following the speech of 12.12.2019, a case was registered at P.S. Civil Lines, Aligarh, in the early hours of 13.12.2019 alleging inter alia that the speech incites communal disharmony. Dr. Khan was not immediately arrested in this case, but was ultimately taken into custody from Mumbai on 29.01.2020. He filed for bail, a request which was naturally opposed by the state. Despite the opposition, however, bail was granted on 10.02.2020. Two observations in the bail order are important: first, the Court rebuffed the state claim about the accused repeating the offence by stating that this would be grounds to challenge his bail, and; second, the court placed a bail condition upon Dr. Khan to “ not repeat the crime in the future”.

What happened next is in keeping with the worst traditions of how governments run in our republic, witnessed from the days of A.K. Gopalan itself (no, not his Supreme Court case). The bail order was passed but not given effect to by the executive. Two days later, on 13.02.2020, the trial court passed another order directing jail authorities to release Dr. Khan and directed its delivery by Special Messenger. However, the state claimed this was only received at 8:20 PM in the evening, by which time the preventive detention order had been proposed by the Officer in Charge of PS Civil Lines, sponsored by the Deputy Inspector General of Police, and authorised by the District Magistrate, Aligarh.

Therefore, it would be a mistake to think that Dr. Khan’s preventive detention was specifically required because of the incident of December, 2019. Rather, the need was only perceived by the U.P. Government once a competent court had applied its mind to the allegations against Dr. Khan in the regular course of law, and found that there was no reason to prolong his pre-trial custody any further. 

The Allahabad High Court Verdict

Before proceeding to the order that came to be passed in the habeas corpus petition, it must be mentioned that it took close to six months for a decision to be made in the matter. Even if we exclude the time the petition was in the Supreme Court, it is still an inordinate delay for what is arguably the most crucial kind of case before courts — one directly concerning the liberty of a citizen. 

Having said that, the short judgment of 42 pages does not waste too much time in getting down to the matter. The petition challenged the order of 13.02.2020 on three broad prongs: (i) there was no material for ordering preventive detention and it was intended to subvert the judicial process; (ii) the detenue was not supplied with all material thus denied a right to file an effective representation against his detention, and; (iii) the concerned government had unduly delayed the consideration of his representation against detention. I will only focus on (i) and (ii), as the judgment is restricted to a consideration of only these grounds. On both these legal issues, the Allahabad High Court has made some important observations.

Supplying Material

Let’s look at (ii) first because this is a small point. The High Court noted that while Dr. Khan had been given a CD with the speech ascribed to him, he was not given any means to play this disc. Neither was he supplied with any transcript of this speech, which was the primary basis for his preventive detention. This was unconscionable, and the Court rightly held it so, finding that this conduct on part of the state government deprived the detenue of his constitutional right to make an effective representation against his detention. 

Preventive Detention and Subjective Satisfaction

The Allahabad High Court was asked to consider the contents of the speech given by Dr. Khan in December 2019 to decide whether a reasonable person could apprehend any disturbance to public order based on his exhortations. The Court’s approach in this regard is important and requires a brief excursus to explain the legal position on how challenges to preventive detention orders are to be treated by the judiciary.

The law on preventive detention is an executive-driven process: it is an extraordinary power that executive officials have in India to make sure that imminent threats to public disorder etc. can be addressed swiftly without going through the rigour of the regular criminal process. The primacy given to the executive requires that in any subsequent challenge to a detention order, judges cannot substitute their mind for the subjective satisfaction of the executive official who made the decision in the heat of the moment. The judge cannot place herself in the shoes of the police officer. 

At the same time, however, this doctrine of respecting the subjective satisfaction of executive officials is not a license for abdicating the judicial function entirely when considering a challenge to preventive detention. Courts must still apprise themselves of the materials presented before the detaining authority to decide if the decision to authorise preventive detention was arbitrary and unreasonable. There is no running away from the fact that the lines being drawn here are fuzzy, and while it moves some courts to be excessively deferential to the executive, it equally allows other courts to keenly consider the facts without overstepping the limits of the judicial function or abdicating it entirely. 

In Nuzhat Perween, the Allahabad High Court clearly took the latter approach: 

“We are in absolute agreement with learned Additional Advocate General that it is not open for the courts to substitute their opinion by interfering with “subjective satisfaction of the detaining authority”. However, it does not mean that the court cannot look into the material on which detention is based. The expression “subjective satisfaction” means the satisfaction of a reasonable man that can be arrived at on the basis of some material which satisfies a rational man. It does not refer to whim or caprice of the authority concerned. While assessing “subjective satisfaction of the detaining authority” the Court examining a petition seeking a writ of habeas corpus has to look into the record to examine whether the subjective satisfaction is acceptable to a reasonable wisdom and that satisfies rationality of normal thinking and analyzing process. … In view of above, we have looked into the speech delivered by the detenue. The closure of examining record as suggested would be nothing but a licence to allow the executives to act at their whims or caprice. This would be against the fundamentals of our constitutional values and provisions. (Emphasis Mine)”

In line with this approach, the High Court looked at materials forming the basis for the detention order in detail. The judgment quotes the entirety of Dr. Khan’s 23 minute-long speech made on December 12, to demonstrate how the police requests for preventive detention in this case had, in fact, not presented the authority with the complete picture. Instead, the police had patched up different parts of Dr. Khan’s speech to present a different picture altogether from what appeared to be the speaker’s intention. It held, therefore, that based on this material it was impossible to conclude that Dr. Khan’s activities were such as to prejudice the maintenance of public order. 

Punitive Preventive Detention

The peculiar facts leading up to the detention order of 13.02.2020 have been extracted above, and it was argued that this demonstrates that the two months’ delay in passing the order, and its expeditious authorisation after Dr. Khan’s bail, all went to show that the preventive detention order was actuated by malice and not based on any genuine grounds. 

This is a more tedious issue than what might appear at first blush. It is because the Supreme Court has, on countless occasions, held that it is not illegal to pass a preventive detention order in cases where the person is already in custody and about to be released on bail. Most recently, this was confirmed by the Court in Dimple Happy Dhakad [AIR 2019 SC 3428] (Discussed on this Blog as well). Technically then, preventing Dr. Khan’s release on bail was a legally valid ground for the U.P. Government to take. 

This is really the twilight zone when it comes to preventive detention, where the preventive setup inextricably merges with the regular criminal process. The only justifiable premise for passing a preventive detention order in respect of a person who is about to be released on bail is if the authority can demonstrate that there is a continuing threat which did not dissipate once the regular criminal process has taken charge of the matter. This is not unimaginable — organised crime has many stories of rackets being run from prison. But it must be a very hard sell for the executive and it cannot be a means to pile-on incarceration upon persons deemed undesirable by the state. Not only would such delayed preventive detention orders turn the concept on its head — where is the prevention if the person was already in jail for months after the incident! — but it would also directly subvert the determination made by a competent court that there was no need for a person’s continued incarceration. At a macro-level, repeat occurrences of this phenomenon place an undeniable strain upon the relationship between the executive and judiciary, and give rise to an unconstitutional chimera of punitive preventive detention that hollows out the right to personal liberty from within. 

This is why courts must arguably be more vigilant while entertaining challenges to preventive detention orders in such cases where bail order is passed and, in some way, circumvented — as the Supreme Court has also emphasised on some occasions in the past. This is exactly the kind of approach on display in Nuzhat Perween, where the Allahabad High Court noted that:

“The exact nature of the contents of the lecture delivered by the detenue on 12.12.2019 at the Bab-e-Syed Gate of the AMU (as claimed by the state authorities), even if accepted to be correct, it cannot be overlooked that, that material could not be relevant for the purpose of satisfaction being drawn two months thereafter, inasmuch during that period of two months, undisputedly, the detenue neither visited the city of Aligarh nor he made any further or other speech or lecture connected thereto nor there is any material shown to us that the detenue was about to commit any act in furtherance thereto or was going to deliver any other speech or lecture connected thereto as may have prejudiced the public order.”

There was no fresh alleged illegal activity between December and February which prompted the order of 13.02.2020, even though Dr. Khan had been at liberty throughout that time. There was not even a proposal to pass an order for his preventive detention in that period. The first time when the idea came to the government was after the bail order was passed. For the Court, all this pointed to a conclusion that the gap of two months’ snapped whatever link existed between the allegedly offending conduct of Dr. Khan with a need to require his preventive detention. 

Our Slow-Moving Wheels of Justice 

The story of Dr. Khan and the manner in which the preventive detention machinery was clearly misused by the state government to keep a dissident behind bars is a tale as old as time itself. Small wonder why the writ of habeas corpus has such a celebrated position in societies. Indian courts have not had the most shining of records in terms of processing habeas petitions over the past few years and the delay that it took for Dr. Khan’s petition to be heard speaks to this serious systemic problem. But, ultimately, a court did apply its mind, and restore a person’s liberty. 

The episode reminds me of a scene from the movie Shahid, where the young, imprisoned, Shahid Azmi is told by War Saab (played by KK Menon) that the wheels of justice turn slowly in India, but they do eventually turn.

Well, eventually, I guess they do.

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

[This is a guest post by Nitika Khaitan.]


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

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

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

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

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

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

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

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

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

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

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

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


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

Coronavirus and the Constitution – IX: Three Curious Bail Orders

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

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

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

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

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

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

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

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

CAA, Coronavirus, and Civil Rights at the Bar of the High Courts

Amidst the continuing fall-out of the CAA/NRC/NPR protests, and the new fall-out of Covid-19, some of India’s High Courts have delivered admirable judgments protecting civil rights in fraught times. In Kamil Siedczynski v Union of India, a single-judge bench of the Calcutta High Court set aside a “Leave India Notice” [“LIN”] issued by the government to the Petitioner, who was a Polish student studying in India. The ostensible basis of the Notice – issued under Section 3(2)(c) of the Foreigners Act – was that the petitioner, being a foreign citizen, could not have participated in “political rallies” while in the country. The petitioner impugned the LIN on both procedural and substantive grounds: namely, that he had not been heard, that the LIN was not supported by any reasons, and that it violated his rights under Article 21 of the Constitution. The State, on the other hand, raised a set of familiar arguments: it relied on its prerogative powers in matters of entry or expulsion into India, submitted materials in a sealed cover, denied any obligation to accord a hearing, and argued that foreigners could not agitate constitutional rights that flowed from Article 19.

Sabyasachi Bhattacharyya J found for the Petitioner on all counts. He began by noting that the Petitioner was lawfully in India on a valid student visa. Consequently, the right of the Petitioner to reside in India – flowing from his visa – could not be revoked without a hearing (paragraph 49). Bhattacharyya J then observed that the material in the “sealed cover” was essentially two sheets of paper that referred to the Petitioner’s attendance at an anti-CAA rally, and a decision taken by “higher formations” to expel him from the country. This led him to consider the substantive question at issue. On this, Bhattacharyya J held that:

For a brilliant student of the academic standard of the petitioner, it is but natural that the petitioner shall have free interactions in an atmosphere of freedom with Indians, at least while in India. (paragraph 58)

Consequently:

The very premise of such qualifications, which the petitioner has, provide for the petitioner’s ability to engage in such activities as indicated above. Hence, the ‘life’ and ‘personal liberty’ of the petitioner cannot be limited to a bare existence worth the name but also contemplates his right to actively pursue his interests and fields of specialization, which are necessary for the petitioner to lead a healthy life. The personal liberties of any person cannot be restricted merely to the right of staying in India. Since the student visa in favour of the petitioner confers the right on the petitioner to live in India up to August 30, 2020, the rights to pursue his intellectual interests and to seep in the ethnicity and lifestyle of different communities in India also go hand in hand with his right to life. (paragraph 59)

Thus, even though Article 19 was not available to the Petitioner (as a non-citizen), Article 21 – available to “all persons” – covered his right to participate in protests and rallies. Additionally, Bhattacharyya J. pointed out that the powers under Section 3 of the Foreigners Act were not “unfettered”, but had to be exercised within the constitutional framework. Interestingly, he also held that some of the earlier Supreme Court judgments – that seemed to indicate that no hearing was necessary as a Section 3 order was a “purely executive order” – were not only distinguishable, but had also been overtaken by the progress of Article 14 and 21 jurisprudence, which now required a more “liberal” approach. Thus – and in sum – Bhattacharyya J condemned the actions of the government as a “paranoid overreaction” (paragraph 88), and set aside the LIN. The judgment stands out both for the lucidity and clarity with which it enunciates the relevant constitutional principles, and its refusal to simply defer to the State on questions of expulsion and the rights of foreigners. At all times, Bhattacharyya J. insisted, the State had to comply with its constitutional obligations: both in terms of respecting individual rights, and in terms of providing reasons for coercive action. Here – as often happens – the slightest scrutiny of the State’s putative “reasons” (even though they were submitted in a sealed cover) resulted in a clear realisation that they were, in essence, no reasons at all.


Meanwhile, the Madurai Bench of the Madras High Court passed a strong order on the right to protest. The plea concerned the denial of police permission to protest against the CAA/NPR/NRC, on grounds of inconvenience to traffic, and law and order. Justice G.R. Swaminathan noted that “officials invariably deny permission for holding meetings protesting governmental laws and policies”, citing either Section 30 of the Police Act of 1861 or Section 41 of the Chennai City Police Act of 1988 (both laws clothe the police with extremely broad powers to deny permission to protests). Citing recent observations by judges of the Supreme Court (Chandrachud and Deepak Gupta JJ) in extra-judicial speeches, Justice Swaminathan then observed that:

The right to hold public meeting is traceable to Article 19(1)(a) and 19(1)(b) of Constitution of India. These provisions guarantee to all citizens the right to freedom of speech and expression and to assemble peaceably and without arms. The Constitution Bench of the Hon’Ble Supreme Court in the decision reported in (1973) 1 SCC 277 (Himat Lal K.Shah V. Commissioner of Police) held that the right to hold public meetings flows from Article 19(1)(b) and that the state cannot impose unreasonable restrictions. It was also observed that public streets are the natural places for expression of opinions and dissemination of ideas. It forms parts of the tradition of our national life. (paragraph 8)

In light of this, Swaminathan J noted that the task of the State authorities was to stand in aid of fundamental rights, dealing with law and order problems if – and when – they arose, and not to start with the “easy option” of curtailing rights. This was especially the case as in the present situation, the organisers had committed to abiding by all rules and regulations.

The denial of permission was thus set aside, although – in the meantime – Covid-19 had intervened, and there a fresh prohibition on public gatherings had been issued. Swaminathan J. therefore completed by holding that “the jurisdictional Deputy Superintendent of Police, will issue proceedings permitting holding of the event at the petition mentioned site immediately after the ban issued by the Government in the wake of novel coronavirus pandemic is lifted.” (paragraph 12)

Although brief, the judgment stands out, therefore, for three things: first, a reiteration of the principle that “public streets” are “natural avenues” for the exercise of constitutional rights; secondly, a reiteration that the obligation of the police and other authorities is to support the exercise of these rights, instead of moving to stop them on grounds of administrative convenience; and thirdly, effective relief by directing the grant of permission once Covid-19 passed (whenever that might be!). During a time when there is substantial judicial hedging even on such basic principles, the categorical nature of this judgment is welcome.


Covid-19 has caused substantial economic dislocation. One form of dislocation has been loss of income (both to individuals and businesses) caused due to the necessity of social distancing and of working from home. This precipitous fall in income – that has hit some sectors particularly hard – has led to calls for economic relief packages across the world. These have included demands for direct cash transfers, for the government to pay salaries of people stuck at home, and – crucially – a temporary moratorium on evictions, recoveries of dues, and other similar forms of coercive financial action.

In view of this, on March 18 and 19, the High Courts of Allahabad and Kerala passed brief orders. The Allahabad High Court directed that in view of the extraordinary situation, and for a limited period of two weeks (until 6.4.2020), recovery proceedings by district or statutory authorities, auctions, orders for presence of persons, demolitions, and evictions would stand suspended. The reason – as the High Court noted – was that given the imperative of social distancing and the impact on the right to health, such temporary relief was essential. The Kerala High Court’s order was somewhat broader:  it directed recoveries under the SARFAESI Act, the Income Tax Act, VAT and Motor Vehicles tax be deferred to after the 6th of April. Crucially, and at the same time, the High Court left it open for State authorities to move for modification of the order in specific individual circumstances; thus, broadly, the default was a two-week relief period, subject to reasonable exceptions, if established in Court.

As Swaroop Mami notes in this piece, the High Courts’ orders were both constitutionally sound, and also – at a basic level – humane:

These are vital orders for both protection of fundamental rights of citizens and to grant some kind of relief to a sagging economy in the wake of the virus. A businessman, already having to pay salaries without business, deserves a two-week tax relief. As any tax practitioner, be it a chartered accountant or a lawyer, will tell you – the two weeks leading up to March 31 are when the tax department, desperate to hit annual revenue targets, will be at its most unreasonable. A relief against this is always welcome, but even more so during this crisis. Also, it is basic human decency that during an unprecedented worldwide pandemic requiring self-isolation, aperson should not be evicted from her house for recovery of bank dues, and the State should not carry out demolitions of buildings for violation of building laws. These can wait for two weeks.

In the case of the Kerala High Court, the orders were passed for the protection of Court officers. It is important to understand that like hospitals, courts can never be fully shut down – bail, habeas corpus writs and urgent civil relief often cannot be postponed. The best one can do is reduce the burden on the courts, which is what the Court sought to do.

 

It is therefore deeply unfortunate that both these progressive orders were stayed ex-parte by a bench of the Supreme Court, in an entirely cryptic, unreasoned, one-paragraph order. In his article, Swaroop deals with the flawed stand of the Union of India at some length, and I will not rehearse those arguments here. It is, however, important to note that in granting this ex parte stay within hours of filing, the Supreme Court allowed the government to break every known procedural rule in the book; moreover, as Manu Sebastian points out in this Facebook post, many of the directions of the Allahabad High Court did not concern the interests of the central government at all, but rather, those of the UP state government – which did not appeal the order.

Two further points. The State’s SLP – as Swaroop points out – is almost entirely based on the issue of separation of powers and the encroachment of the judiciary into the domain of policy. Here, however, is the bizarre thing: for the last three decades, the courts – and especially, the Supreme Court – have repeatedly “encroached” into the domain of policy, even to the extent of engaging in judicial law-making. The principal argument for this has been that because of the “vacuum” caused due to legislative and executive “inaction”, the Supreme Court has had to step in. From that perspective, even if you believe that the Allahabad and Kerala High Court orders were “encroachments” (and Swaroop argues persuasively that they were not), they were scarcely outliers: here is a situation involving a global pandemic, with cities and entire states under lockdown, where the central government has (so far) failed to come up with a relief package, and where – to tide over an emergency – the High Courts passed narrow and temporary orders dealing with enforcement relief. Does this even begin to compare with the Supreme Court’s sweeping judicial law-making in a case like Vishaka, or its recent use of Article 142 to legalise police interrogation techniques? Separation of powers, thus, seems to have become just another weapon of convenience in the Supreme Court’s armoury – it doesn’t exist on Tuesday and Wednesday, when the Court is perfectly content with passing legislative guidelines, but is suddenly birthed on Thursday, when the State comes up and asks for a stay.

Secondly, the Supreme Court order notes that the basis of the stay is that “the Government is fully conscious of the prevailing situation and would itself evolve proper mechanism to assuage concerns and hardships of everyone.” This is an astonishing statement for a constitutional Court to make – a level of abject deference reminiscent of its September 2019 order in the Kashmir lockdown case, where the government was politely requested to ease restrictions on fundamental rights “subject to national interest.” Notably – and contrary to the two High Court judgments that it was staying – no details whatsoever are provided in the order of what the “proper mechanism” might look like; indeed, that same evening, the Minister in charge of the Covid Taskforce herself admitted that there was no clarity on when the relief package would be ready. This in itself is a complete vindication of the two High Court judgments, which – it needs to be repeated – granted narrow and temporary relief precisely because the government had not acted.

In essence, therefore, the Supreme Court (a) stays two detailed and well-reasoned orders of High Courts that temporarily protected individual rights in the absence of government action, (b) does so in flagrant violation of procedure, and (c) on a vague and completely open-ended assurance of the government. This, one will note, is a courant with the Supreme Court’s actions in recent times, reinforcing the impression that at this point, the Court’s functioning is more about “cohesion” with the government, rather than protecting people’s rights.

King Menelaus at the Bar of the Indian Judiciary

Mian Abdool Qayoom is the 76-year-old President of the Jammu and Kashmir High Court Bar Association. Since August 5 – the day the constitutional status of Jammu and Kashmir was altered – Qayoom has been undergoing “preventive” detention, under the Jammu and Kashmir Public Safety Act, which authorises detention for upto two years without trial. The ostensible basis of the detention has been that he would “motivate people to agitate against abrogation of Article 370.” Despite ill health (diabetes and a single kidney), Qayoom’s detention was extended last week. And on Friday, the Jammu & Kashmir High Court dismissed a legal challenge to his detention.

Among other things, in its judgment, the High Court took the view that the “subjective satisfaction of the detaining authority to detain a person or not is not open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.” This, of course, essentially gives absolute impunity to the State on the issue of detention: if “subjective satisfaction” is the standard, and the Court is not the “proper forum” to challenge detention, then – effectively – the right to personal liberty exists at the absolute discretion and mercy of the government. That, needless to say, makes the right meaningless.

Now what does one say about this? One could say that this line of “reasoning” parrots the executive supremacy logic that was at the basis of the ADM Jabalpur Case – a case that was allegedly buried “ten fathoms deep with no chance of resurrection” by the Supreme Court in 2017, except that ten fathoms is evidently not deep enough for a judiciary that wants to prove itself more loyal than the King (in fact, the High Court judgment quotes a number of cases – both before and after ADM Jabalpur – that foreshadowed and echoed its most notorious lines, including that of preventive detention being a “jurisdiction of suspicion”). After all, when the memo on overruling ADM Jabalpur hasn’t even reached some of the judges of the Supreme Court, how could it be expected to reach the still locked-down Kashmir, where it is anyway too cold for people to exercise their Article 19(1)(d) rights (according to a former Chief Justice of India)? One could say that far from being buried ten fathoms deep, or any fathoms deep, it has by now become abundantly clear that ADM Jabalpur is the dominant logic that that governs judicial action in India today, and that the High Court was at least refreshingly honest in giving that to us straight.

One could say all that, but there probably comes a point at which repetition grows tedious, and is necessary only in order to complete the record, rather than present any new or interesting insight about the workings of the judiciary today. But thankfully, the High Court has also given us something more to think about: it quoted the Greek “thinker” Sophocles, noting that “laws can never be enforced unless fear supports them.”

No quote exists, of course, without context. And a closer look at the context of the Sophocles’ quote that the High Court chose is perhaps more revealing than the actual order. A preliminary point, of course, is that the society that gave us the Melian Dialogue might not be the most reliable contemporary guide to ideas of law, justice, and morality; indeed, one would hope that the concept of law would have progressed somewhat in the 2500 years since the time of the classical Greeks.

More than that, however, is the specific background of the quote. These words – that the High Court paraphrases – are found in Sophocles’ play, Ajax. And Sophocles puts them into the mouth of Menelaus – the (semi-mythical) Greek king other contemporary playwrights denounced for his arrogance and cruelty, and who initiated a destructive and pointless ten-year war because his wife left him for another man. Not, perhaps, the model statesman whom you want expounding on the idea of law. And if the High Court had paid attention to Menelaus’ speech where the quoted words occur, a few lines above it would have found the following words: “‘tis a sign of wickedness, when a subject/ deigns not to obey those placed in power above him.” This is unsurprising: equating law with fear is the hallmark of societies where power flows from hierarchy and is kept by force.

Notably, in both cases, Menelaus s referring to the conduct of (the now dead) Ajax, and is refusing permission for burying his body. Ajax, in turn, had killed himself after going on a killing spree, triggered by his rage at being adjudged only the second-best Greek warrior when it came to massacring soldiers during the just-concluded Trojan War. After a lengthy dispute between Menelaus and another character, Teucer, the body of Ajax is indeed buried.

The literary, dramatic, and artistic merits of Ajax notwithstanding, here – in essence – is what the play is about: it is the aftermath of a destructive and unjustifiable war of aggression, where a soldier from the army of conquest massacres innocent civilians because he feels that he has not been credited enough for his role in the war, then kills himself, leading to higher officials having an argument – not about the massacre – but about whether his body should be given a burial (finally, it is). The higher official is angry – not because innocent civilians have been killed – but because his “subject” has disobeyed someone “placed in power above him.” But is finally persuaded to overlook the indiscretion, and impunity survives untouched. And it is within this context, this society, and this cast of characters, that we find the words the J&K High Court thought fit to apply to preventive detention in a 21st century constitutional democracy: “laws can never be enforced unless fear supports them.”

Perhaps the High Court did, after all, intend to make exactly this point: that we do live in the world of Ajax and Menelaus, and the world of the Melian Dialogue. Perhaps, then, we should applaud – once again – the refreshing honesty, topped off with a dash of literary flourish.

Or, perhaps the High Court would have been better served by remembering that the Greek army camps outside ruined Troy were not the best models for a constitutional democracy, and looked elsewhere in Sophocles’ ouvre; perhaps the legendary play Antigone, where a guard told another King:

“‘Tis sad, truly, that he who judges should misjudge.”

Mian Abdul Qayoom, meanwhile, remains in jail without trial.

NDPS and the Rise of Punitive Constitutionalism

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


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

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

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

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

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

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

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

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

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

 

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

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

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


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

Guest Post: Dimple Happy Dhakad and Normalising Preventive Detention

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


[This is a blog post by Abhinav Sekhri, first published on The Proof of Guilt, and cross-posted with permission.]


“Preventive Detention” is a phrase that is inextricably bound with the history of the Indian Constitution. The Constituent Assembly affirmed the power for future governments to pass such laws, and only later got around to debating the restraints surrounding them. As a result, despite Article 22 having been inserted to serve as the minimal constitutional threshold to check abuse of preventive detention, it has often been treated as a constitutional recognition for the notion that the fundamental right to personal liberty requires restraints “for the good of the people.”


The decision of the Supreme Court in Union of India v. Dimple Happy Dhakad [Crl. Appeal No. 1064 of 2019 & connected petitions, “Dhakad“] shows a clear preference for the latter, mistaken view, over the former. By affirming the use of preventive detention in a situation where no “prevention” was really at stake, while at the same time diluting the high burden usually imposed on the state for requesting preventive detention in such cases, the Supreme Court took a dangerous step towards normalising what was meant to be a measure of the absolute last resort. In doing so, it compounded the slide towards normalising preventive detention already being witnessed across states, which have used this tool to deal with bullying and cattle theft, among other issues. 


Understanding Preventive Detention

Despite the perceived familiarity with preventive detention, it still serves us well to remind ourselves just what exactly is meant by the phrase, and how different this regime is from the normal “punitive” system of criminal justice. 


In the regular course, the police or other agencies can only take steps to restrain personal liberty after some illegal conduct has taken place. There must be something, beyond mere thoughts, to justify why a person should be arrested and thus denied the most basic of freedoms. This regular course is turned on its head under the preventive detention regime. Here, waiting for some conduct to manifest itself is considered a fatal delay, and therefore, the police is allowed to arrest persons merely suspected of engaging in illegal activities, or about to engage in them. 


The dissimilarities with the regular process only increase from this point. In the preventive detention regime, a has no right to be informed immediately about the grounds of arrest and detention, and in some cases might never learn of the grounds if it is against public interest. The detenu can challenge the detention order, but has no right to legal assistance. Further, all hearings take place behind closed doors, robbing a person of the sense of fairness that a public hearing entails. Although one can challenge Detention orders in writ proceedings, the Writ Court can only interfere on limited grounds. 


At its very best, preventive detention is a useful tool to ensure the safety of society. At any other level, it is a convenient means to suppress dissent, disregard individual liberty, and nullify the presumption of innocence. It can very quickly transform into a tool to justify the continued incarceration of “unwanted” persons through a process with minimal procedural safeguards, without ever making efforts to prove their alleged infractions.

 
Preventive Detention in the Ordinary Process

The legal position on passing preventive detention orders against persons already in custody, in connection with cases filed in the regular criminal justice system, is perhaps one of the most peculiar aspects of the Indian criminal process. One would think that since a person is already in custody, the urgency surrounding preventive detention is all but lost. This is not so. 


Time and again, detention orders are passed against persons who are anticipated to be released on bail at any moment. The perceived threat from their release is considered so grave as to justify a detention order anticipating this eventuality. 


The litany of judicial decisions covering this peculiar aspect of our criminal process always struggle to maintain a balance between the interests of security and the interests of liberty. It would be fair to say that a common theme through all these decisions is a requirement that the government must clearly establish that there is an imminent possibility of release, and that there is a grave likelihood of the person returning to the prejudicial activities that had necessitated his arrest/detention in the first place. [SeeRekha v. State of Tamil Nadu, (2011) 5 SCC 244]

Dimple Happy Dhakad 

Having thus fleshed out the basic legal position on these issues, we can now proceed to the recent decision in Dhakad. This was yet another case where persons who had already been arrested under the regular criminal process were made the subject of a Preventive Detention order [Under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA)]. Here, the arrests occurred in March 2019 in connection with alleged gold smuggling. Bail applications filed by the accused in April had been rejected once. When the accused filed fresh bail applications in May, then the government authorised the Detention Order. The Bombay High Court set aside the orders (W.P. 2844 of 2019, decided on 25.06.2019), and this decision is what was overturned by the Supreme Court. 


The arguments in Dhakad were on the lines as above. Appealing against the Bombay High Court order, the Union of India laid stress on the gravity of the allegations and the security interests at stake. The respondents/accused strived to show that the detention orders had not been passed with the required degree of care and attention, and had instead been passed in a most routine and mechanical manner. They were assisted by the fact that the Detention order did not even mention anything about an imminent possibility of release, or about the likelihood of the accused persons returning to their prejudicial activities. 


Moreover, in their haste to pass the Detention orders, the authorities had committed basic errors; such as (i) adding documents created after the decision to pass the detention order had been made, as part of the material relied upon for passing the Detention orders and (ii) not supplying the said relied upon material together with the grounds of the detention order, despite the order stating that this material was in fact being supplied. While it was never expressly mentioned in the Supreme Court’s opinion, the fact that the investigation had been ongoing for almost 2 months before the Detention orders were passed was a circumstance that had found favour with the Bombay High Court, to conclude that there was no reason for any delay in them being supplied with the materials upon which the authorities had relied for passing the detention orders.


Issue 1: Non-Supply of Documents

There is limited value in dissecting all that is wrong with the Supreme Court‘s decision in Dhakad, so let us focus on the core aspects. The Court spends great time in telling us that Section 3(3) of the COFEPOSA, and Article 22(5) of the Constitution, have not been breached because all documents were supplied within the statutorily prescribed timeframe of five days. Similarly, it tells us that non-compliance with Executive Guidelines is no grounds for setting aside the Order. Sadly, that is besides the point, because the argument was not about a statutory lapse on part of the authorities or about non-compliance with Guidelines per se. Instead, it was argued that by failing to provide documents, even after specifically noting in the Detention Order that the same are being provided, showed a clear lack of care on the part of the authorities and laid bare the mechanical manner in which the orders were passed. Further, the Supreme Court seems to have ignored the point, that a document prepared after the decision to pass the detention orders was made had found a place in the list of materials relied upon to pass this order, again suggesting that the Detention order had been passed without proper application of mind.


Issue 2: Failure to Consider Pre-Existing Detention 

Which then brings me to the main issue, on the usage of Preventive Detention in cases already being prosecuted under the regular criminal process. The Supreme Court seems to have entirely missed the point about holding the government to a high standard of care in situations where both, the regular criminal process and the extraordinary means of preventive detention, are employed. The recitations of decisions emphasising the urgency of preventive detention, in a case where the accused persons had already been arrested and had been languishing in jail for almost 2 months, is almost laughable if it were not tragic. 


The Court reasoned that the existence of an imminent possibility of release, as well as likelihood of further prejudicial conduct by the accused persons upon release, were issues that depended upon the “subjective satisfaction” of the authority and thus was beyond the scope of judicial review. Now, there is no debate that the scope of judicial review of Detention orders is limited. But, at the same time, it is also true that the Supreme Court has made consistent efforts to expand the possibilities for review to ensure fairness. Two examples are striking. First, the Court judicial created a requirement that the allegation must have a “live link” with the present to justify a need for preventive detention, in a bid to prevent persons being detained on the basis of stale allegations that had not been tested for years [SeeBhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465]. Second, the Court also assented to testing the grounds to examine whether they were so arbitrary and vague so as to render it impossible to challenge the Detention order [SeePrabhu Dayal Deorah v. D.M., Kamrup, (1974) 1 SCC 103]. 


This trend of heightened review is what led to the common theme identified in the previous section, of the Supreme Court consistently placing a higher threshold on detention authorities to justify use of Preventive Detention in cases already being processed in the regular criminal process. Requiring that the Detention order explicitly refers to the possibility of release and likelihood of re-offending does not impinge upon the subjective satisfaction of the authority. It only provides a clear basis for assuming that the authority did indeed consider these issues, and prevent the kind of inferential exercises that the Court resorted to in Dhakad.


Post-Script

The most telling circumstance in Dhakad only emerged after the Detention orders were passed and thus is not expressly mentioned in the Supreme Court decision: The customs authorities failed to complete their investigation within the statutorily prescribed time limit, entitling Dhakad and others to statutory bail under Section 167(2), Cr.P.C.. The only reason why they were not released was the Detention orders. Thus, the customs authorities had used Preventive Detention to cover their inability to finish an investigation in time, and also deny the accused yet another vested right in the criminal process. It is practice that has been chided by the Delhi High Court on different occasions (Seehere, and here), but has not been the subject of consideration in any reported Supreme Court opinions that I could find. 


Thankfully, the opinion in Dhakad does not expressly record that the possibility of being released on statutory bail is a compelling enough reason to invoke Preventive Detention. But this is perhaps the only positive note that the decision strikes. Yet again, the Supreme Court ended up being drawn in by the lure of preventing a politically undesirable outcome — the possibility of releasing alleged gold smugglers on bail — and in the process ended up glossing over the procedural safeguards that are the bedrock of the liberty it is constitutionally committed to protect.


 

The NRC Case and the Parchment Barrier of Article 21

Previously, I have written about the multiple procedural irregularities that have characterised the Supreme Court’s NRC Case: the use of sealed covers, consequential decisions being taken in closed-door hearings, and the bench’s disturbing disregard for due process rights. In the course of this years-long proceeding, the Court has far exceeded its brief as the apex judicial organ of the country, with its repeated stress on deportations making it appear more executive-minded even than the executive: more the Supreme Deportation Authority rather than the sentinel on the qui vive. But yesterday’s hearing in Harsh Mander v Union of India marks a low point even within this ongoing story.

According to accounts of the oral proceedings, the government of Assam brought forward a plan to secure the monitored release of foreigners who had been in detention centres more than five years. The plan entailed the detainees paying a hefty deposit amount of Rs 5 lakhs, having their biometric details taken, and then set free from the detention centres. The Chief Justice-led bench reacted to this with great anger, questioning the government repeatedly about its failure to deport individuals who had been held to be foreigners (this has been a common theme of every hearing). The Chief Justice claimed that the government was asking the bench to be “a part of an illegal order where a foreigner who has no right to stay in the country will remain and sign a bond and so on.” He further lectured the government about what it should have been arguing, noting that “the stand of the government of India and the state of Assam should be that the foreigners detenues should be deported as soon as possible. But we do not see that stand, Mr Chief Secretary.” When the amicus curae made the rather basic point that technically, deportation could hardly be carried out without the cooperation of the host country, the Chief Justice’s only response was “we can say that the government has failed to do its job.” The Chief Secretary then promised to come up with “better measures.”

Separation of Powers and International Law

There are a few things worth noting here. To start with, Harsh Mander v Union of India is a PIL about inhumane conditions in detention centres. How it has become a case about deportations is anyone’s guess. And there is a particularly cruel irony in the fact that a case filed to draw attention to inhumane conditions in detention centres has now brought us to a pass where the Court nixes the government attempts to release a small class of detainees from those centres.

But leave that aside for the moment. The Chief Justice’s repeated enquiries about deportation suggest not only an ignorance of the basic international law principles of non-refoulement and against statelessness, but also either ignorance – or contempt – of the principle of separation of powers. Section 3 of the Foreigners Act is pellucidly clear: the entry, departure, or presence of foreigners in India is a matter for the central government. It is not for the Court to browbeat the government into taking a stand on whether or not to deport (notwithstanding some observations in Sarbananda Sonowal, which are not only obiter, but completely unsupported by any legal principle of authority). Matters are worse confounded by the fact that when a Foreigners Tribunal makes a decision on the status of an individual, its decision is limited to deciding whether or not the said individual is an Indian national. The Foreigners Tribunal does not – and cannot – return a finding on whether that individual is a national of a named other country. The Chief Justice’s reaction – “why don’t you deport?” – therefore flies in the face of reality as well, because there will be – and there are – many situations where a Foreigners Tribunal declares an individual as a foreigner, but there is no country to deport that individual to, because no country is claiming them as their national.

In sum, therefore, the law on deportation is that it is a decision for the government to make, a decision that is constrained by principles of customary international law. What the Court is doing in these proceedings is taking a bludgeon to this legal structure, by ignoring both these core legal elements. This is damaging in many respects, but it is particularly damaging because the task of checking whether the government is exercising its discretion to deport in consonance with principles of customary international law is a judicial task. However, when the Court itself is acting in this fashion, to which forum are people supposed to appeal, if they think that the government is acting illegally? This is why the separation of powers exists: for courts to review the actions of the government, and ensure the government acts legally. And this is why the blurring of the line between the court and the political executive – of which the entire NRC case is an exemplar – is so profoundly dangerous.

Article 21

But let us come to an even more serious issue. As indicated above, the government set out a plan where detainees who had spent more than five years in detention centres were to be conditionally released. The conditions of release are so onerous that in my view, they rise to the level of being unconstitutional, but let us ignore that for the moment. The Court refused to accept this proposal as, in the opinion of the CJI, it amounted to sanctioning an “illegality”. Why? Because the government should have been deporting them.

It is at this stage that it becomes necessary to revisit the text of Article 21 of the Constitution – a provision that has come to mean everything to everyone in recent years, but which seems to mean nothing when it actually matters. Article 21 of the Indian Constitution states as follows:

No person shall be deprived of his life or personal liberty except according to procedure established by law.


There is no – no – law that authorises indefinite detention of an individual, whether citizen or foreigner. And if there was a law that did so, it would almost certainly be struck down as unconstitutional. On what basis, therefore, does the Court say that releasing detainees who have spent more than five years in detention would be endorsing an illegality? The boot of illegality, rather, is on the other foot: by refusing release, it is the Court that is sanctioning a flagrant and continuing violation of Article 21, the provision that is supposed to be the heart and soul of the Constitution. And one can hardly ignore (once again) the almost brutal irony at the heart of this: it is the government that wants to release detainees from detention centres, and the court that wants to stop it. Which is the political executive and which is the sentinel on the qui vive? Who is the protector of rights, and who the encroacher? It is impossible to tell any more.

Conclusion

Like every other legal culture, we too have our “never again” moment. For us, that “never again” moment is the notorious judgment in ADM Jabalpur, the Habeas Corpus case. The Supreme Court’s judgment in that case that sanctioned Emergency-era excesses – most of which were visited upon detainees – is what we hold up as the marker of that “valley of shadow” into which we’ve been, and into which we must not go again.

But when the Supreme Court prevents the government from (conditionally) releasing detainees who have been in detention centres (which, by all account, are inhumane places) for more than five years, thus condemning them to a continuing, lawless deprivation of personal liberty, then it is perhaps time to ask whether all we can do is keep saying “never again”, even as it happens all over again.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Post: The UAPA – some interpretive issues

(This is a guest post by Sharanya Shivaraman.)

The Unlawful Activities Prevention Act (UAPA) was passed two decades after India’s independence in the year 1967 in order to keep a check on unlawful activities, terrorist organisations and other notorious groups. It also empowers the Central Govt. to ban organisations which are believed to be involved in unlawful activities. As public outrage against the erstwhile TADA and POTA grew stronger, the absence of Constitutional safeguards under counter-terrorism laws also came to be heavily criticised. In 2004, through an amendment, the safeguards under the UAPA were diluted, leading to the close resemblances between the POTA and the amended provisions of UAPA. These similarities were in the form of difficulty in obtaining bail, extended period of police custody etc. Over the last few decades the UAPA has assumed the place which the erstwhile terrorism laws such as POTA and TADA occupied and has become a potent law for prosecution of anti-state activities. It is not unusual for public security legislations to have maximum period in police custody, incarceration without a chargesheet and restrictions on bail. Yet, if one were to focus on the application of this law, a clear picture takes shape; of the invocation of the UAPA to curtail political dissent.

The laws which are instituted to curtail instances of sedition and disaffection against the state are couched in broad terms; for instance, Sec. 124A of IPC. It leaves the discretion of classifying acts falling within the category of offences under this law, to the authorities investigating such crimes. However, while interpreting the scope of such broad and overarching provisions a balance has to be struck between the intent and sensibility of the legislature while enacting the law and the freedom of individuals to be protected from abuse of such laws.

The recent arrest of activists following the Bhima Koregaon protests under the provisions of UAPA brings into perspective certain issues relating to interpretation of penal statutes and makes it imperative to examine the assistance provided by Courts in delineating the scope of national security and counter-terrorism laws. In the past, arrests have been made under this law for acts ranging from conspiring to commit terrorism to possession of Maoist literature and supporting unlawful associations and organisations.

A pertinent question arises in this regard. In a statute that confers a wide discretion to make arrests pertaining to various offences, how is the colourable use of discretion curtailed? The decision of Kerela High Court in case of Abdul Salam v. NIA is of some importance. The question was whether circulation of fake currency falls within the scope of ‘unlawful activity’ under the UAPA.

Looking into the Legislative intention:

The Court looked into whether circulation of counterfeit destroys the ‘economic security and fabric’ of the country. In this regard, the Court concluded that

“Finance of the country is something different, having broader connotations and applications in the country’s economic set up, and it cannot be brought down to a narrow concept or object as property. So also, the term “security” occurring in Section 15 of the U.A (P) Act cannot be stretched by interpretative process to include economic security. To understand what exactly security is, as meant by the law, the whole section must be read and appreciated carefully.

It is quite clear from such interpretation and understanding that the term security meant under the law is the country’s security vis-a-vis., law and order situations and internal or external affairs of the country, and not financial or economic fabric.”

[Note: The concept of economic security was only introduced in the amendment and the Court concluded that it cannot be read into the scheme of the Act prior to the Amendment.] This also shows that where there is dilemma between giving an expansive meaning to a statute as opposed to a restrictive meaning, the Courts favour a restrictive and conservative approach while interpreting penal statutes. Hence where the statute is ambiguous and unclear as to its precise boundaries, the Court can streamline police discretion using an essential tool of interpretation i.e. looking to the legislative intent and analysing if the alleged acts threaten to cause disruption to the peace and security of the country in the manner which the statute envisages and seeks to prevent. In this context, the question still remains as to what grants legitimacy to the arrest and detention of Prof. Shoma Sen or Sudha Bharadwaj under this Act and it needs to be seen how the judiciary reconciles such arrests with the purpose for which the statute was enacted.

Literal interpretation and violation of Fundamental Rights:

While reviewing cases under the UAPA, Courts have encountered the issue of unwarranted application of the law and the consequential violation of fundamental freedoms. In such scenarios, Courts have looked into the violation of Fundamental Rights as a legitimate basis for curtailing the scope of the Act. In case of Jyoti Chorge v. State of Maharashtra, the Court interpreted the provisions of UAPA in light of fundamental rights of Jyoti who was arrested for possession of books containing Maoist literature. Justice Thipsay noted, “that possession of a particular social or political philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is a shocking proposition in a democratic country like ours.” Here, it was observed that the Govt’s interpretation of the law runs contrary to the freedoms and stated that the alleged act did not prima facie amount to an offence.

Where there is a prima facie violation of Fundamental Rights due to overbreadth in application of the law, an approach departing from literal rule of interpretation, (popularly applied to penal statutes) has also been adopted. In case of Sri Indira Das v. State of Assam, it was held that the offence under Section 10 of the UAPA, which on its plain language makes mere membership of a banned organisation a crime; has to be read down by departing from the literal rule of interpretation. Otherwise the said provision will become unconstitutional as it is violative of Articles 19 and 21 of the Constitution.

Strict interpretation of penal statutes and principle of ejusdem generis:

A rule of interpreting penal statutes is to construe it strictly. UAPA, being a stringent law, its provisions are to be interpreted more strictly. In R. Kalyani v. Janak C. Mehta, a case dealing with prosecution of individuals for affairs of the company, the Court examined whether vicarious liability can be fastened on individuals for offences of cheating and forgery if there is absence of the clear provision in the penal statute for the invocation of vicarious liability. This case is relevant because it was here that the Court enunciated a principle of strict interpretation which has resonated with various cases dealing with interpretation of penal statutes. The Court in this case, held that “we must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms, they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive”. This principle, also affirmed in Abdul Salam’s case, casts a serious doubt on the unscrupulous arrests of members of Kabir Kala Manch a few years ago under various provisions of the Act. This only shows that there is a clear gap in the judicial understanding of the law and its understanding by police and investigative authorities.

Another principle which is likely to guide the interpretation of the critical sections of the Act is ejusdem generis. Section 15 defines a terrorist act and clause (a) states “by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause”. If not clarified, such areas are open to possible misunderstandings.

The phrase “by any other means of whatever nature to cause or likely to cause” needs to be interpreted in the specific context in which it is situated. As per ejusdem generis general terms following particular expressions take the colour and meaning as that of the preceding expressions. Applying this rule, the words will relate only to weapons of like nature and cannot be taken to connote anything more than that. Similarly in case of Ranjitsingh v. State of Maharashtra, the Court applied the principle of ejusdem generis while interpreting the term ‘other unlawful means’ in Section 2(1)(e) of Maharashtra Control of Organized Crime Act (MCOCA) which defines organised crime. The Court stated that the general words “other unlawful means” will have to be interpreted with reference to the objects of MCOCA for which it was enacted i.e. prevention and control of criminal activity by a person or a gang and for matters connected and incidental to organized crime and organised crime syndicate.

The principle of ejusdem generis attempts to reconcile the general terms used in the statute with the more specific terms. It serves as an aid to discover the legislative intent behind enacting a certain provision. Hence where a provision is peppered with vague or general terminologies, looking to the legislative intent saves the provision from misuse or dereliction in interpretation.

Contemporary application of UAPA:

The reason why UAPA is of importance is because it compromises on certain crucial rights by virtue of provisions raising a strong presumption against bail. A broad interpretation of the law has led to, among other things, a pattern of classifying terror related offences on shaky grounds, diluting the threshold for establishing criminal conspiracy and constantly expanding the scope of ‘unlawful activities’ which can be brought within the ambit of the Act. UAPA, being a penal statute should be construed more cautiously to prevent this from happening.

‘Association Fallacy’ and the curious case of Dr. GN Saibaba:

The history of UAPA is only a hint of the political relevance of this law. However harrowing instances such as Dr. GN Saibaba’s case make it difficult to reconcile with the guarantee of basic freedoms and fundamental right to equality and due process. In G.N Saibaba’s case, a judgment of the Gadchiroli Court running over 800 pages contains numerous procedural and evidentiary drawbacks raising grave concerns pertaining to the fairness of procedure. However, in order to further my argument, I shall restrict my critique to a single aspect of the judgment focusing on his association with the organisation Revolutionary Democratic Front (An alleged front organisation for the CPI(Maoist) which is a banned organisation under the UAPA. Dr. Saibaba, along with five others were prosecuted for the offence punishable under sections 13, 18, 20, 38, 39 of the UAPA (primarily to hatch criminal conspiracy to wage war against India, reduce faith in democratically elected government, spread secessionist and rebellious thoughts and to continue the unlawful activities of the CPI(M) through its frontal organisation-RDF).

Firstly, there is no provision in the law for declaring an organisation to be a frontal organisation and it is uncertain how the Sessions Court derived the power to declare the RDF as a front for another banned organisation in order to prosecute Dr. Saibaba given that there is no gazette notification to this effect by the Central Government. Again, as compelling as it might be to highlight the treatment of evidence, overstepping of jurisdiction by the Sessions Court and procedural inadequacies, I shall not delve into them as they are not particularly relevant for this argument and moreover, there is a sincere belief that these defects will be cured in appeal. However, the convictions of Dr. Saibaba and others for the offence of being a member of a terrorist organisation (Section 20, 38), supporting terrorist organisation (section 39), conspiring to commit terrorist acts (section 18), committing unlawful acts (Section 13) are fundamentally premised on support, advocacy and sympathy for the frontal organisation of CPI(M) which is a scheduled terrorist organisation in the Act. From the provisions of the Act, the inference of criminal conduct does not require the authorities to establish a connection with actual commission of crime or even an attempt to commit the crimes which the Act seeks to prohibit. This is problematic as mere membership of an organisation does not lead to any of the consequences which the Act envisages in its preamble to be a ‘terrorist or unlawful act’. Perhaps this is an inherent flaw in the law which needs to be remedied urgently. The ability to prosecute someone for association with an ideology or even an illegal or harmful organisation, allows the authorities and Courts to draw sweeping conclusions and inferences regarding the ‘criminal’ nature of their association. While the decisions suffers from a flawed notion of ‘association fallacy’, there is little that Courts can do to help the situation apart from striking down the provision altogether.

In the past, Courts have struck down provisions of penal statutes on account of vagueness and uncertainty when they have led to the misuse of penal provision, harassment and encroachment of fundamental rights. Even though, UAPA is a specimen of similar forms of misuse and suffers from vague and broad legal drafting, such intervention of Court is unlikely in case of UAPA because of the nature of this law. UAPA, being a counter-terrorism law presupposes the need for certain legislative overbreadth and imprecise definitions since the protection of national public requires a scale of discretion in the hands of public authorities.

In Arup Bhuyan v State of Assam, the Appellant was being prosecuted under Section 3(5) of the TADA which criminalises the membership to a banned organisation. The Court stated that “although the appellant has denied that he was a member of ULFA, even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member.” Borrowing from the case of Clarence Brandenburg v. State of Ohio, the Court observed that advocacy of criminal syndicalism or violence as a means of achieving political reform is not per se criminal. It will only transcend into the illegal sphere if it incites imminent lawless action. Unlike the US Supreme Court in the above case, the Court did not go to them complete length of saying that statute criminalizing mere association with banned organisations, is invalid. Yet, it still drew inspiration from the principles of upholding personal liberties enunciated in the US case. The Court held that “Section 3(5) cannot be read literally otherwise it will violate Articles 19 and 21 of the Constitution. Hence, mere membership of a banned organisation 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.” This approach might help curb the overbreadth that Dr. Saibaba’s case suffers from.

While subjecting the UAPA to a successful constitutional challenge might be ambitious, Courts examining the constitutional validity of erstwhile POTA have stated that those exercising authority under this law are expected to prevent acts of terrorism within the constitutional bounds. Even though the Courts have consistently maintained that they are precluded from treading into questions of policy, as guardians of fundamental rights, they can contribute in two ways; Firstly, by vitiating the acts which blatantly transgress upon the right to fair trial of citizens and secondly, by clarifying the scope of exercise of police powers by interpreting the law in a manner that is most consistent with the fundamental rights and freedoms. In fact, the extended periods of pre-trial incarceration without bail (as witnessed in cases such as Chadrashekhar Azad Ravan), warrants the intervention of the Courts in clarifying the manner in which this law is to be applied to offences, conditions mandating the grant of bail, prerequisites for extending custody. In such a widely applied law, the scope of misuse further revives the discussion on the necessity to periodically review such precarious statutes. The absence of a sunset clause in the UAPA is thus a major cause for concern since that is the only legitimate claim to review the Constitutional validity of a law which is otherwise outside the ambit of judicial scrutiny and placed snugly within the parliament’s hands.