Swimming With Your Arms Tied Behind Your Back: The Supreme Court’s UAPA Bail Order in Iqbal Ahmed’s Case

On 13th August 2021, a division bench of the Bombay High Court had granted bail to one Iqbal Ahmed, who had been charged under various sections of the Unlawful Activities Prevention Act [“UAPA”]. In my analysis of the judgment on this blog, I had written that – when read alongside the Delhi High Court’s judgment in Asif Iqbal Tanha (see here) – the bail order in Iqbal Ahmed was an important instance of how the Bombay and Delhi High Courts were beginning to develop a jurisprudence of liberty, even within the highly restrictive confines of the UAPA.

The bail order was appealed to the Supreme Court. In a brief order passed on 11th February 2022, a two-judge bench comprising of Chandrachud and Surya Kant JJ declined to interfere with the grant of bail. However, the two judge bench also passed the following observation, in paragraph 2:

In the facts and circumstances of the present case, we are not inclined to disturb the order of the High Court. However, we clarify that the observations contained in the impugned order are confined to the disposal of the application for bail arising out of the judgment of the Special Judge on the question of bail. Moreover, it was unnecessary for the High Court to advert to the decision in Shreya Singhal v Union of India and the judgment of the High Court can be sustained even independent of the said observations. (Emphasis mine)

There are two points I want to make with respect to this paragraph, which – in my view – highlight starkly the internal tensions that have come to characterise bail jurisprudence under the UAPA. The first is the part where the Court “clarifies” that the observations in the High Court’s bail order “are confined to the disposal of the application of bail.” Now, this would be entirely unexceptionable were this an order of bail under regular criminal law. However, where a Court has granted bail on merits in a UAPA case, this cannot be so. The reason for this is explained at some length by Abhinav Sekhri, in this piece and in this piece. As Sekhri points out, “the UAPA dramatically flips the regular law of bail on its head. Here, courts are required by the statute to primarily focus upon the merits of the case to determine whether or not bail should be granted.” The reason for this is that s. 43(D)(5) statutorily bars the grant of bail the moment the Prosecution can show that a prima facie case exists against the accused. Or, in reversal, a merits bail under the UAPA can happen only if the Court finds that there is not even a prima facie case against the accused, on the basis of the evidence provided. For this reason, it simply does not make logical sense for the Supreme Court to say that the “observations … [in the High Court order] are confined to … the question of bail”: the UAPA mandated the High Court to issue findings about the case that went beyond the “question of bail”, because without addressing those questions, it could not have granted bail on merits to start with (it’s a different matter that it could still have granted bail on the separate and independent procedural ground of delay, as per the Supreme Court’s K.A. Najeeb judgment).

The other reason why this observation is unjustified is simply on grounds of fairness and parity. As Abhinav Sekhri has pointed out in the articles linked to above, the UAPA almost entirely stacks the decks against an accused. Going into a UAPA bail hearing, accused’s counsel have to argue as if they were participating in a swimming competition with both arms tied behind their backs: they cannot deploy any part of the arsenal open to the defence team in a regular criminal trial, and they are only permitted to try and point out internal contradictions within the Prosecution’s case, or show how even when you assume the Prosecution’s case to be true, it does not meet the UAPA threshold. The Supreme Court judgment in Watali effectively tied a dumbbell to the defence’s legs in addition to its arms being tied behind its back, when it further restricted what materials the Court could consider in a UAPA bail hearing.

This being the case, on the rare occasion when the defence does succeed in merits bail under the UAPA (in the manner indicated above), basic principles of fairness and equality of arms suggest that it ought to be entitled to the full benefits of that bail judgment – which, in this case, for the reasons advanced above, necessarily include certain judicial findings on the substantive quality of the prosecution’s case. It is crucial to note that the only reason why this is happening is because of how the UAPA itself front-loads bail hearings entirely in the prosecution’s favour. In this context, the Supreme Court’s observations in paragraph 2 basically amounts to a situation where the swimmer with both arms tied behind their back and dumbbells tied to their legs nevertheless wins the swimming competition, and is then told that their win doesn’t count because ropes and dumbbells are not supposed to be brought into the pool.

The second point I want to comment on is the Court’s observation that it was “unnecessary” for the High Court to refer to the Shreya Singhal judgment. This observation bears some resemblance to oral arguments before a different bench of the Supreme Court when Asif Iqbal Tanha’s bail order was appealed by the State: in that case, the Supreme Court expressed surprise that the High Court had spent a hundred pages discussing various judgments in a bail order. It then went on to hold that the bail order was “not to be treated as a precedent or relied on by the parties” (something that, as may people have pointed out, was beyond the scope of its jurisdiction). The present order does not do that, but the observation in question betrays the same problem. As has been pointed out before, because s. 43(D)(5) of the UAPA statutorily bars the grant of bail where there is a prima facie case against the accused, in a merits bail application, there are two ways a Court can go: (a) hold that the Prosecution’s case, even when taken at the highest, with all allegations presumed to be true, does not meet the legal threshold that the offences under the UAPA require to be met; or (b) there are gaps in the Prosecution’s case, and the link between the facts as alleged, and the offences under the UAPA, have not been filled except by surmises or inferences. Now the point as that for (a), the Court must, by the very nature of the analysis, embark upon a detailed legal examination of what the UAPA offence actually requires. This was what the Delhi High Court did in Asif Iqbal Tanha. And this was exactly why the Bombay High Court invoked Shreya Singhal’s Case in this order. As I wrote in my analysis of this order:

While the analysis in Tanha’s case was multi-faceted, in this case, there are two primary principles: the first is that given the stringency of the UAPA, and the harshness with which it operates, its definitional clauses ought to be given a strict and narrow meaning. In the present case, Shinde and Jamadar JJ deployed the Shreya Singhal judgment to (correctly) hold that mere discussions would not fall within the substantive clauses of the UAPA – whether the membership clause, or any other. And the second principle is that to make out a prima facie case, the “allegations must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.” This is evident in the present case from the Court’s refusal to infer a larger conspiracy simply from the recovery of an unsigned oath form or a switchboard, without further, tangible material on record.

It should therefore be clear that not only was it correct for the Bombay High Court to have invoked Shreya Singhal, but indeed, it could not have been any other way. Recall, once again, that this was a case of bail on merits under the UAPA; the Bombay High Court did not grant bail solely on the K.A. Najeeb ground of excessive delay in trials. It is for this reason that paragraph 2 in the Supreme Court’s bail order is problematic: because both sets of observations – if they are taken to their logical conclusion – would make merits bail under the UAPA not only very difficult (which it is now), but a virtual impossibility.

By way of conclusion, it is important to note that short orders of this kind – dismissing Special Leave Petitions – are invariably delivered after very brief hearings, without the bench having had the benefit of hearing proper arguments on either side. Thus, it is to be hoped that when the question of merits bail and 43(D)(5) comes up before the Supreme Court again – as it inevitably will – these internal contradictions of the UAPA will be considered in greater and more substantive detail.

Imprisonment by Quotation: On the Sharjeel Imam Bail Order

The law on speech, violence, and the link between the two is well settled in India. In Shreya Singhal v Union of India, the Supreme Court made it clear that, consistent with Article 19(1)(a) of the Constitution, the correct standard for criminalising speech was that of incitement to violence. Not advocacy; not violent thoughts; but incitement. The judgment in the Shreya Singhal case articulated an evolving latent standard in Indian free speech law, that had been expressed in various forms since the Ram Manohar Lohia judgment in 1960: the requirement of close proximity between a speech and an unlawful act, summed up through phrases such as a “spark in a powder keg” (Rangarajan).

While it may appear tedious to recount uncontroversial Supreme Court jurisprudence – and indeed, it is tedious for the person doing the recounting – the exercise is made necessary by the fact that from time to time, courts seem either unaware of precedent, or seem to believe that following precedent is an optional exercise. A good example of this is today’s astonishing order of the Additional Sessions Judge at Saket, denying bail to Sharjeel Imam in the Delhi riots case. In brief: Sharjeel Imam gave various speeches on 13th December, 2019 and 15th December 2019. On the afternoon of 15th December, it is alleged that there was mob violence and stone pelting in an attempt to march to the Parliament. The prosecution’s case was that Imam had instigated the mob with his speech.

In the disclosure statement – extracted in paragraph 3 of the judgment – Imam’s speech can be roughly translated and summarised as follows: first, that he opposed the CAA and the NRC; secondly, that he called upon his community to oppose these laws and make the government bow; thirdly, that he called for “chakka jam” (blockades); and fourthly, he warned that if the CAA-NRC were not opposed, they would all land up in detention camps and have their citizenship stripped. In paragraph 5, the Court sums up the Prosecution’s case as follows:

As per prosecution, applicant/accused Sharjeel Imam had delivered provocative speeches on 13.12.2019, 15.12.2019 and 16.01.2020, which resulted into riots at several places. The speech dated 13.12.2019 is the subject matter of present FIR i.e.
242/19, PS New Friends Colony. It is alleged that in the said speech, applicant/accused was seen instigating a particular religious community against the government by creating unfounded fears in their minds regarding CAB and NRC. As per prosecution, speeches delivered by the applicant/accused were seditious, communal/divisive in nature and were aimed at promoting enmity between different religions.

It is important to note that on the Prosecution’s own case, neither a prima facie case under Section 124A (sedition), nor 153A is made out: “instigating … against the government” is not equivalent to “inciting … to violence”, and arguing that a particular law targets a particular community is not a S. 153A offence: as has been held multiple times, for 153A to be apply, the specific communities have to be singled out in express terms, between whom enmity is being generated. Thus, this is not – evidently – a case of hate speech (and indeed, as we shall see, the Court does not make any further mention of S. 153A).

Now in that context, in paragraph 10, the Court notes:

As far as allegations against applicant/accused for offences under section 143/147/148/149/186/353/332/333/307/308/427/435/323/341/120B/34 IPC & 3/4 Prevention of Damage to Public Property Act & under section 25/27 Arms Act with aid of section 109 IPC are concerned, after going through the record, I am of the prima facie view that the evidence in support of the allegations (rioteers got instigated by the speech dated 13.12.2019 of applicant/accused and thereafter they indulged in the acts of rioting, mischief, attacking the police party etc), is scanty and sketchy. Neither any eye witness has been cited by prosecution nor there is any other evidence on record to suggest that co-accused got instigated and committed the alleged act of rioting etc upon hearing the speech of applicant/accused Sharjeel Imam. Further, there is no evidence corroborating the version of prosecution that alleged rioteers/coaccused were a part of the audience addressed by applicant/accused Sharjeel Imam on 13.12.2019. Upon specific inquiry by this court, Ld. Special Public Prosecutor fairly conceded that at this stage, there is no material available with prosecution to the effect that applicant/accused and other co-accused persons were members of any common social platform viz whatsapp etc so as to fasten the liability of acts of co-accused upon present applicant with aid of section 109 IPC. The essential link between the speech dated 13.12.2019 and the subsequent acts of co-accused is conspicuously missing in the instant case.

One would think that at this point, an order granting bail would follow immediately: not only are the multiple cited sections of the IPC not made out, but the failure to establish even a prima facie causal link between Imam’s speech and the riots – let alone a causal link strong enough to meet Shreya Singhal‘s incitement standard – makes the sedition case a non-starter. However, in paragraph 15, the Court then says:

Thus in view of settled position of law, the issue whether the said speech would fall within ambit of section 124A IPC or not, requires a deeper analysis at an appropriate stage. However, suffice it would be to observe that a cursory and plain reading of the speech dated 13.12.2019 reveals that same is clearly on communal/divisive lines. In my view, the tone and tenor of the incendiary speech tend to have a debilitating effect upon public tranquility, peace and harmony of the society.

In other words, the Court entirely ignores the legal test for the application of Section 124A – the incitement test – and replaces it with an entirely subjective assessment of the speech – that is on “communal/divisive lines” and would “tend to have a debilitating effect upon public tranquility.” But these are a whole lot of words that can mean just about anything: what is on “communal lines” or “tends to” have a “debilitating effect” on public tranquility is not a judicial standard that can be assessed on any reasonably measurable scale: it is, to use a phrase in vogue these days, “just vibes”. But imprisoning people for years on end (at the time of writing, Imam has already been in jail for a year and a half) on the basis of just vibes seems to have become a feature of the Indian judicial system of late.

It is telling that the Court sees fit to begin its order by quoting certain lines from Swami Vivekananda: “We are what our thoughts have made us; so take care about what you think; Words are secondary; Thoughts live; they travel far.” This is an excellent – if unwitting – insight into the mind of the Court: the problem is not that Imam incited a riot (he very evidently didn’t) or broke the law, it’s just that – put very simply – the Court doesn’t like the kind of stuff he seems to be thinking. And on that basis – and in complete disregard of existing bail jurisprudence – the Court decides that he must stay in jail for the foreseeable future.

The Court’s order here is eerily reminiscent of “imprisonment by metaphor: that is, of the Patiala House District and Sessions Judge order from last year, which denied bail to Safoora Zargar. There again, a perusal of the Prosecution’s material had revealed no definable offence, and no link between speech, protest, and violence. To keep Zargar in jail, the Court was forced to resort to metaphor, talking about how if you “play with embers” you can’t blame the wind for “spreading the fire”. And this is the whole issue: if, as a Court, you are going to take the extremely weighty step of keeping people in jail for years pending trial, the least you can do is to provide specific reasons showing what the particular, identifiable, unlawful act is: not metaphor, not quotes from Swami Vivekananda about bad thoughts.

The problem seems to be, however, that Courts do not regard keeping people in jail for years as a weighty issue – or indeed, an issue of any concern whatsoever. Individual liberty is degraded currency at the Court, and for that reason all we get are orders sanctioning imprisonment by metaphor or imprisonment by Swami Vivekananda quotes.

Back to the Basics: The Delhi High Court’s Bail Orders under the UAPA

[Update: At the time of writing, the Supreme Court has, in appeal, directed that the Delhi High Court’s order discussed below “not be treated as a precedent or relied on by the parties.” The effect of this is that while the grant of bail is not (yet) cancelled, the High Court’s judgment itself has been suspended out of existence.

While this phrase – “not to be treated as a precedent” – has become a standard feature in Indian jurisprudence, it is worth repeating – without mincing words – that this is entirely outside the law. When a constitutional court (and the High Courts are constitutional courts) delivers a reasoned judgment on an issue, the task of an appellate court is limited to determining whether that judgment correctly interpreted the law, or did so wrongly. Until reversed, the judgment of a court has the force of law. It is therefore not within the authority of the Supreme Court to act as if the judgment of another constitutional court simply does not exist, or was never delivered – and worse, to deliver an unreasoned command that all other courts also participate in this fiction.

It is also important to note the impact of this order: it means that while the three individuals will not be sent back to jail (until whatever time that the Supreme Court takes a final view on the correctness of the High Court’s judgment), what it does mean is that trial courts (and other benches of the High Court) are barred by fiat from expressly citing the Delhi High Court’s judgment where anyone else’s civil rights are concerned. The judgment itself, meanwhile, exists like a phantom limb – not really there, but still there somewhere. This is wholly destructive of the rule of law.]


On 15th June 2021, a two-judge bench of the Delhi High Court (Mridul and Bhambani JJ) passed three orders granting bail to Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal in the cases relating to riots in Delhi in February 2020 [“the Delhi riots cases”]. Along with many others, the three had been accused of participating in a conspiracy to cause violence in the wake of the anti-CAA protests, charge-sheeted under the Unlawful Activities Prevention Act [“UAPA”], and – at the time of writing – had spent over one year in jail without trial. Bail applications before the trial court had been rejected.

The High Court’s orders are significant, as it is the first instance of regular bail – i.e., bail on merits – being granted to individuals who have been charge-sheeted under the UAPA in the Delhi riots cases. What is of even greater significance, however, is the Court’s reasoning. The bail orders reiterate a simple fact that has, over the years, been repeatedly obscured: that the exceptionally stringent provisions of the UAPA (which make the granting of bail extremely difficult) are meant to apply only to exceptional cases, and not as substitutes for ordinary penal law. This distinction between the state of exception and the state of normalcy has been blurred by laws such as the UAPA, whose broad and vaguely-worded provisions allow State agencies to invoke and apply them indiscriminately, and thus keep people behind bars for years without trial. The Court’s orders today go some way towards restoring that essential distinction (for a background, see these pieces by Abhinav Sekhri, here and here).

As another preliminary point, in order to understand the High Court’s bail orders, it is important to recall the Supreme Court judgment in the Watali case. As we know, Section 43(D)(5) of the UAPA bars the grant of bail if, on a perusal of the case diary, and in the opinion of the Court, there “are reasonable grounds for believing that the accusation against such person is prima facie true.” In essence, therefore, the UAPA limits the Court to looking at the prosecution version, and precludes bail if the prosecution’s version – without having passed through cross-examination or challenge – appears true on the face of it. In Watali, the Supreme Court further held that it was not permissible for even the Court to engage in a detailed analysis of the prosecution’s case while considering bail under the UAPA, and to consider whether the evidence presented by the prosecution appeared sufficient or not. Thus, while the UAPA ties one hand of the defence behind its back (by letting only one side’s version be determinative for the question of bail), the Watali judgment tied the other hand as well, by effectively prohibiting any substantive challenge to that version. The effect of this is to make the grant of bail almost impossible until the end of the trial (which could take years) – a wholly unconstitutional interpretation of the UAPA, to say the least.

Almost, however, is not entirely. Notwithstanding Watali, there remains space for Courts to engage with abusive prosecution cases, and (righty) grant bail nonetheless. One example of this is the pre-Watali Bombay High Court judgments in the Kabir Kala Manch cases, where the constitutional guarantees of free speech and freedom of association were invoked to read down the term “membership” (of an unlawful organisation) under the UAPA to “active membership”, i.e., to the incitement of violence. In those cases, the prosecution case – taken entirely on its own terms, and as presumptively true – did not claim that the accused had been fomenting violence (at the highest, they were accused of participating in some meetings, and some literature had been recovered from them). Consequently, even on its own terms, a “prima facie” case under the UAPA had not been made out, and consequently, Section 43(D)(5) did not apply.

Today’s Delhi High Court orders belong to the same judicial line of reasoning as the Kabir Kala Manch cases: i.e., extending a close scrutiny to the terms of the UAPA, and how a responsible judiciary, committed to the protection of fundamental rights, ought to interpret them. At the heart of the lead judgment/order [Asif Iqbal Tanha v State of NCT of Delhi] is the basic insight that the gravamen of offences under the UAPA is “terrorism”, and the word “terrorism” has to be given a specific meaning – in light of the context and history of the Act – that distinguishes it from offences that are dealt with under ordinary law (paragraphs 28 – 39). This is particularly important, as the Court notes – correctly – that a “sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed” (paragraph 40). Based on these interpretive principles – and prior Supreme Court precedent – the Court goes on to hold:

… the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order; and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law. (para 49)

The Court buttresses this by noting that the UAPA is a central legislation, and therefore must fall within one of the fields of legislation that the centre is competent to legislate on, under Schedule VII. The appropriate head under List I of the Seventh Schedule – according to the Court – is the “defence of India” (as opposed to “public order”, which is a state subject) (paragraph 57). This – the Court observes – also demonstrates the exceptional nature of the UAPA: “it was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA.” (para 57)

Coming to the question of application, the Court then notes that taking the Prosecution case (as set out in its 17000-page charge-sheet) as true, there were no specific accusations against the accused other than that he handed over a SIM card to a co-accused; there was no recovery of weapons or any accusation that the accused was leading the conspirators who actually engaged in violence. In response, the State repeatedly tried to argue that the anti-CAA protest was an “aggravated” protest that was likely to threaten the “foundations” of the nation. The Court’s response to this is striking in its simplicity: it once again notes that none of this is based on any factual assertion, but rather “based upon inferences drawn by the prosecuting agency.” The anti-CAA protest itself was at no point banned or outlawed – and just like Watali prohibits courts from delving into the “merits or demerits” of evidence at the state of bail, logically, so must it preclude taking into consideration “inferences and conclusions”, in the absence of “accusations made against the appellant [that] prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.” [para 58]

This reasoning is extremely important: a scrutiny of the Delhi Riots cases indicate that (i) the actual evidence against the accused is related to organising protests and chakka jam; (ii) violence occurred, but there is no evidence linking the accused to the violence; (iii) the gap in the middle is filled by the State alleging conspiracy and the “likelihood” of causing violence under the UAPA. It is this gap that the Court correctly identifies, and the notes that mere inferences are not sufficient to complete the chain of causation and establish a prima facie case under the UAPA, which could then be used to deny bail to the accused for years.

Having thus established that a prima facie case of terrorism under the UAPA has not been made out, the Court – correctly – considers the general principles regarding bail. Applying those general principles – and in view of the fact that the charge-sheet has 740 witnesses, with no prospect of the trial beginning any time soon (here the Court draws upon the Supreme Court judgment in Najeeb, which also held that S. 43(D)(5) is not inflexible, and does not override constitutional rights such as the right to a fair and speedy trial) – the Court holds that a case for bail has been made out.

The accompanying two orders – in Devangana Kalita and Natasha Narwal’s cases – are based on similar reasoning. In the Devangana Kalita order, the High Court makes the crucial observation that:

The making of inflammatory speeches, organising chakkajams, and such like actions are not uncommon when there is widespread opposition to Governmental or Parliamentary actions. Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA. (para 47)

This is extremely important, because it goes back to the initial point of this blog post, which is the distinction between states of exception and states of normalcy. The High Court notes here that there are indeed occasions where initially peaceful protests can spill over into the zone of illegality; in such a case, however, whatever illegalities may have been committed are to be dealt with under ordinary law, because there still remains a gap between illegal protests and terrorism. To make out a case of terrorism under the UAPA, “individual, factual, and particularised” allegations are needed, and that gap cannot be filled – to repeat – by inferences and insinuations.

Similarly in the Natasha Narwal order, the Court observes:

Allegations relating to inflammatory speeches, organising of chakka jaam, instigating women to protest and to stock-pile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA. (para 35)

The Court buttresses this point by noting – in all three judgments – that the right to peaceful protest is a fundamental rights under the Constitution. Consequently, insofar as the allegations themselves pertain to the organisation of protests (regardless of the merits of the cause), they cannot be a ground for UAPA offences – including situations where protests – as indicated above – cross the line into illegality. In those situations, ordinary law may be used in response to acts of illegality, but not – in the absence of specific allegations – stringent anti-terror statutes such as the UAPA.

In sum, therefore, the following.- indisputable – principles emerge from the High Court’s three orders:

  1. The UAPA is a special statute, designed to deal with a state of exception, and its operation should not be blurred with ordinary legislation.
  2. Criminal statutes must always be narrowly construed, and their terms given due specificity.
  3. A combination of (1) and (2) implies that the word “terrorism” in the UAPA must be given specific meaning that relates to the defence of India, and is distinguishable from public order offences.
  4. In order to establish a prima facie case of terrorism under the UAPA against an accused, the allegations must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.
  5. As long as that gap exists, the prima facie case under the UAPA – and the prosecution’s prima facie burden – remains undischarged, and normal principles of bail (not S. 43(D)(5) will apply.
  6. This is specifically important when the allegations pertain to organising – and participating in – protests, which are guaranteed rights under the Constitution. The Court will be specially vigilant to prevent the use of UAPA-type statutes to blur the lines between protests, illegalities committed during protests, and terrorism.

These principles, it is submitted with respect, constitute an ideal template for courts to approach the issue of bail and personal liberty under special statutes such as the UAPA. If applied consistently, they can form the basis of a jurisprudence that respects civil rights, even within the restrictive confines of the UAPA.

Guest Post: Muddied Waters – The Supreme Court’s Decision in Gautam Navlakha’s plea for Statutory Bail

[This is a guest post by Abhinav Sekhri, cross-posted from The Proof of Guilt Blog, with permission.]


The decision of a Division Bench of the Supreme Court in Gautam Navlakha v. National Investigation Agency [Crl. Appeal No. 510 of 2021 (Decided on 12.05.2021) (“Navlakha“)] continues the rich tradition of poorly authored judgments which frequently emerge from the Supreme Court of India and other High Courts on matters of criminal procedure and personal liberty. The judgment is unclear, to say the least, and peppered with needless extracts throughout. The result is a laborious 206 page exercise which judges, lawyers, and law students will struggle with for some time to come (and, curious laypersons would be well-advised to avoid reading it altogether).  

The Facts

The Appellant was arrested in August 2018 and transit remand was granted to the police to take him from Delhi to PS Vishrambaug. But the arrest and remand were challenged in a habeas corpus petition filed on the same day before the Delhi High Court. Since it was unable to decide the petition on the same date, the High Court did not order the Appellant’s release but directed that he be detained under “house arrest” till the petition could be decided. Later, in a separate public interest litigation, the Supreme Court extended this “house arrest” of the Appellant till it could decide that litigation. 

What we have then is a clear chain of events: the Appellant was arrested and remanded to custody by the trial court, and the terms of this custody were modified by the High Court till it decided a habeas corpus petition. The terms of this detention were clearly spelt out: the Appellant was not permitted to leave or interact with persons save his lawyers or doctors; his house was guarded by police, and crucially; he was not available for interrogation either. This detention was then extended by the Supreme Court. Ultimately, on 01.10.2018, the High Court ruled that the remand order was illegal. 

This did not spell the end of the litigation, of course, and as is well known the Appellant was arrested later and taken into custody in April 2020. In June, the Appellant raised a plea of statutory bail (or default bail) before the trial court in Maharashtra. This is a concept critical to criminal procedure and personal liberty in India. Once custodial detention during investigation crosses certain time-periods and the investigation is yet to be concluded, it triggers a right to bail for an accused under Section 167 of the Code. This “statutory bail” under Section 167 is distinct from the liberty that accused persons have to file bail applications and plead for release, because while judges retain vast discretion to grant or refuse ordinary bail applications, there is no such discretion when it comes to statutory bail. 

The Appellant claimed this right to bail because, according to him, the time spent by him in custody had to include the 34 days of custody he suffered in 2018 as well. Both the trial court and the Bombay High Court disagreed because the “house arrest” suffered by the Appellant could not been as custodial detention of the kinds envisioned under Section 167 of the Code. Even if that kind of detention could be seen as the kind of detention contemplated by Section 167, in this case the Delhi High Court had anyway held that the remand order and subsequent custody was illegal and thus stood wiped out. 

In essence, then, these were the two issues presented before the Supreme Court.

The Supreme Court’s Verdict: A Dishonesty of Convenience 

Navlakha holds that the period of custody undergone by an accused during investigation into commission of non-bailable offences must be counted towards computing the total time spent in such custody as under Section 167 of the Criminal Procedure Code 1973, even if a superior court later rules that the accused had been illegally remanded. Furthermore, it holds that confinement in “house arrest” after being apprehended by the police can be a form of custodial detention that is sanctioned in law under Section 167. In doing so, the Court expands the notion of custody beyond the usual dichotomy between “police custody” and “judicial custody”, which was traditionally seen as detention in police lock-up and being sent to jail. This custodial detention at one’s home would, by extension, also be included towards computing time spent in custody by an accused. Not only this, the judgment in Navlakha goes on the offensive and pushes for looking at house arrest more seriously at all stages of the process as an alternative to traditional judicial custody so as to reduce the prison population [Paras 137-140]. 

In the facts of the case before it, though, the Supreme Court was compelled to conclude that this particular house arrest suffered by the Appellant for 34 days could not have been ordered under Section 167 of the Code. As a result, it could not be said that his custodial detention during investigation had crossed the time-limit which entitled his release on bail.

Why does the Court conclude that the house arrest suffered by the Appellant, though certainly a kind of custodial detention, was not of the kind contemplated under Section 167 of the Code? The best chance at understanding this comes from closely reading the judgment from Para 131 onwards where reasons are offered — which are neither compelling nor consistent. It would be unhelpful to go through each of these individually and instead I’ll highlight the underlying point, which is that the terms of this house arrest were such that it would not fit within the framework of Section 167 of the Code. No case diaries were inspected before directed house arrest and, furthermore, there was no possibility of interrogating the accused given the directions of the High Court. Thus, as the judgment puts it at Para 134.

That house arrest, in turn, involved, deprivation of liberty and will fall within the embrace of custody under Section 167 of the CrPC, was not apparently in the minds of both this Court and the High Court of Delhi. This is our understanding of the orders passed by the court.

With due respect, this is bogus. It does not matter what was “apparently in the minds” of judges when they passed certain orders. In fact, because it is impossible to fathom with any degree of certainty what might have been in the mind of an authority when it took a decision, judicial review always implores judges to refrain from engaging in such an inquiry. Instead, judges must locate the decision within the framework of law, and consider whether the exercise of discretion which lay behind the decision was not arbitrary. Thus, once the Court in Navlakha concluded that house arrest is custodial detention within the meaning of Section 167 of the Code, it cannot conveniently revisit this conclusion in the facts of a particular case and locate a specific instance of house arrest outside of Section 167, because of what it thinks was “apparently in the minds” of judges. If the detention was not in terms of Section 167, then it was illegal, but that would not stop the clock for statutory bail under Section 167 as the Court concludes. 

Conclusion

As convenient as it may have seemed, it was still wholly impermissible for the Court to locate the 34 days of custody suffered by the Appellant in a no-man’s land which is both within the law and beyond it. This kind of judicial exceptionalism in the face of hard cases not only unmoors the concept of judicial review from its very foundations, but flips it entirely to permit a pick-and-choose of the worst sort imaginable. 

At this point, one would be forgiven to think this is too harsh a criticism of the judgment in Navlakha. After all, and this is a point that the judgment itself puts forth, even the Appellant and other accused persons did not imagine house arrest as a liberty-depriving measure at the time when the orders were passed. I agree; and if the Court was still unconvinced of its conclusion on this front, it could very well conclude that house arrest was not custodial detention within the framework of law. It could do this while also airing its concerns about prison overcrowding to suggest that perhaps the legislature should start to look at house arrest more seriously as an alternative to existing judicial custody detention. 

But the Court chose to not adopt this restrained course of action, which is why its conclusions are a perfect exercise in adopting what I label a dishonesty of convenience. Or, to put it more plainly, an effort to have its cake and eat it too. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Post: 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.