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

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

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

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

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

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

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

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

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

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

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

Guest Post: The Arup Bhuyan Review

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

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

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

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

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

What has the Court done in Arup Bhuyan (Review)

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

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

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

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

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

The Many Missteps of Arup Bhuyan (Review) 

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

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

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

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

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

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

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

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

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

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

Is the Glass Still Half Full?

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

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

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

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

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

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

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

Time Limits on Investigations and their Consequences

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

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

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

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

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

[Emphasis mine]

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

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

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

The issues and conclusions in Zeeshan Qamar

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

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

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

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

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

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

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

The ‘Silent Spectator’ Paradox

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

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

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

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

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

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

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

Facing the Facts

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

Transformative indeed. 

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

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

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

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

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

Bail under UAPA and the presumption of innocence

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

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

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

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

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

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

The prima facie standard and the equality of arms

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

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

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

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

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

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

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

Arup Bhuyan and the right to effectively defend oneself

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Association-based offences under UAPA

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

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

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

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

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

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

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

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

State practise relating to association-based offences

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

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

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

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

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

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

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

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

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

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

Once Again, the Basics: The Bombay High Court’s Bail Order in Anand Teltumbde’s Case

On 18th November 2022, a Division Bench of the Bombay High Court passed an order granting bail to Anand Teltumbde, one of the accused in the “Bhima Koregaon Case.” The order is significant, because it is the first time that bail has been granted on merits to one of the “BK-16”, all of whom have been arrested and imprisoned under the Unlawful Activities Prevention Act [“UAPA”]. There have been cases of default bail (Sudha Bharadwaj) and medical bail (Varavara Rao), but so far, all bail applications on merits have been rejected (for example, Hany Babu and Jyoti Jagtap).

The Bombay High Court’s grant of bail to Anand Teltumbde continues the battles around personal liberty on the terrain of the UAPA. This blog has covered these battles in some detail. To recap, section 43(D)(5) of the UAPA statutorily bars a judge from granting bail if there are “reasonable grounds” to believe that the allegations against the accused are prima facie true. As, at the time of bail, the judge will only be considering the prosecution’s version, section 43(D)(5) effectively makes the defence fight with one arm tied behind its back. Furthermore, in the Watali case, the Supreme Court held that courts were not expected to scrutinise the prosecution’s material in great detail, and only make their assessment on the basis of “broad probabilities.” This was akin to tying both of the defence’s arms behind its back, throwing it into the sea, and ordering it to swim for the shore.

Notwithstanding the text of Section 43(D)(5) and the judgment in Watali, some judges have nonetheless been working through the interstices of the law to craft what I have called a “jurisprudence of liberty” in the shadow of the UAPA (see the discussion on this blog in “Back to the Basics” [Delhi High Court], “Staying With the Basics” [Bombay High Court] and “Entrenching the Basics” [Supreme Court]). To recap, this jurisprudence of liberty has two core features:

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

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

The jurisprudence of liberty, however, is an idea under siege. Other courts and other judges have refused to follow it, preferring instead a jurisprudence of State impunity, where the terms of the UAPA are interpreted extremely broadly, the Court itself plays the role of filling in the gaps in the Prosecution’s cases through inferences against the accused, and cites Watali as an overarching “stay in jail” card (see “Forgetting the Basics“). Indeed, not only is this conflicting jurisprudence present within the same Court and the same case, but at times the same judge has signed on to judgments that reflect both the jurisprudence of liberty, and (one year later) the jurisprudence of State impunity.

Anand Teltumbde’s bail order is important not just for its outcome, but also because, in this ongoing battle, it strikes an important blow for the jurisprudence of liberty. In the High Court’s judgment, one can find the deployment of both Principles 1 and 2, in painstaking detail.

As the judgment records, the NIA’s case against Anand Teltumbde was not that he participated in acts of terrorism, but that he was a high-level intellectual authority within the banned Communist Party of India (Maoist) [“CPI-Maoist”]. The Prosecution argued that Teltumbde was funded by the CPI-Maoist to give speeches abroad and that he brought back incendiary material that he then passed on to the CPI-Maoist through his brother, the (now deceased) Milind Teltumbdge; that he was one of the organising minds behind the Bhima Koregaon event, and therefore complicit in the “larger conspiracy”; and that he regularly provided intellectual succour and support to the activities of the CPI-Maoist. The Prosecution’s evidence for this consisted of (a) a set of documents (recovered from a co-accused, Rona Wilson), many of which were evidently addressed to one “Anand”; (b) a receipt showing transfer of funds from the CPI-Maoist to one “Anand T”; and (c) the testimony of certain witnesses regarding meetings between Milind Teltumbde and Anand Teltumbde.

The Division Bench began its analysis by noting the judgment of the Andhra Pradesh High Court Devendra Gupta, where a set of parameters had been laid down for determining what constituted a “prima facie” case under the UAPA: these included evidence of association with banned organisations, prior convictions for terrorist acts, recovery of explosive material, presence at the event, and a swift arrest after the event (readers will note that most of these are highly specific and particularistic) (paragraph 14). With this analytical framework in mind, the Court turned its scrutiny to the Prosecution’s evidence. It noted that (a) none of the letters allegedly addressed to “dear Comrade Anand” or “Comrade Anand” had been recovered from the possession of Anand Teltumbde himself, and (b) that even if one was to assume that the letters were addressed to Anand Teltumbde, there was nothing in them that showed active membership of the CPI-Maoist, or active complicity in terrorist acts (paragraphs 18.1, 18.2, 18.4.3). For example, at one point, the Court observed:

This letter has not been recovered and seized from Appellant. Assuming at the highest that reference in this letter i.e. ‘brother Anand’ is to the Appellant himself, prosecution needs to show the nexus and link of Appellant with the present crime or any specific overt act. There is no material save and except calling upon us to presume that the word ‘brother Anand’ named in the present letter is a reference to Appellant and as such he is directly involved with the activities of CPI(M). It is to be noted here that, this letter refers to names of 17 persons in all, including “brother Anand”. Some names are also with their phone numbers. Not all of these 17 persons have been indicted in the present crime. (para 18.4.3)

This paragraph is important, as it demonstrates the application of both prongs of the jurisprudence of liberty. What was presented to the High Court was a set of letters – not recovered from Anand Teltumbde – which were addressed to “Anand”, and which – in certain vague and general terms – spoke about his involvement with the CPI-Maoists. At the first level, the High Court refused to fill in the gaps in the Prosecution’s case by simply assuming that “Anand” referred to Anand Teltumbde (indeed, later the High Court would point out that there was more than one “Anand” who was part of the CPI-Maoists (para 18.6). At the second level, the High Court noted that even if – at the highest – the letters were referring to Anand Teltumbdge, the UAPA would kick in only if there was complicity with a specific crime or a specified overt act. Thus, it was not good enough for the Prosecution to engage in a roving exercise seeking to condemn individuals on the basis of their ideology, or generalised suspicion. In that sense, the UAPA’s provisions would have to be construed in a limited fashion, so that they would not end up sanctioning prosecution for thought-crimes.

The High Court similarly found that the evidence for the transfer of funds was lacking. Significantly, wherever there was a gap in the Prosecution’s case, instead of filling it under the umbrella of “conspiracy”, the High Court stressed repeatedly that for it to make the presumptions that the Prosecution wanted it to make, “would require further corroboration and evidence.” In other words, bail could not be denied simply on the basis of suspicion and conjecture (paragraph 18.7.1).

Finally, both aspects of the jurisprudence of liberty were evident in the High Court’s consideration of the witness testimonies: the witness statements contained generic allegations of Anand Teltumbde being an ideological fellow traveler of the CPI-Maoists, but – as the Court noted – they did not establish that he had been with a CPI-Maoist member or specifically met Milind Teltumbde (paragraphs 19 and 20). However, even if the NIA’s allegations were to be accepted, the Court noted that at the highest, this showed that Anand Teltumbde was a member of the CPI-Maoist. Under the UAPA, the maximum term of imprisonment for membership was ten years; the more stringent provisions of the UAPA (for example, Section 18) required the involvement of the accused in a terrorist act (crucially, the High Court held that under section 18, one would have to show conspiracy or abetment to a specific terrorist act). Thus, the Court noted in paragraph 22.2:

Section 20 cannot be interpreted to mean that merely been a member of a terrorist gang would entail such a member for the above punishment [i.e. life imprisonment]. What is important is the terrorist act and what is required for the Court to see is the material before the Court to show that such a person has been involved in or has indulged in a terrorist act. Terrorist act is very widely defined under Section 15. In the present case, seizure of the incriminating material as alluded to hereinabove does not in any manner prima facie leads to draw an inference that, Appellant has committed or indulged in a ‘terrorist act’ as contemplated under Section 15 of the UAP Act.

Significantly, therefore, the Court indicated that there existed a gradation of seriousness even within the UAPA, and that even on the basis of the prima facie case against him, there was no evidence that Anand Teltumbde had committed, or conspired to commit, a terrorist act. The NIA’s allegations of conspiracy, therefore, stood rejected.

Teltumbde, therefore, was granted bail.

Other than the issues around the jurisprudence of liberty that I have pointed out above, there are three further points that I want to make.

First, an important aspect of the High Court’s approach was set out in paragraph 11. While considering Section 43(D)(5) of the UAPA, the Court observed that “this is an extraordinary phenomenon and a deviation from the ordinary Criminal Law. Naturally, therefore the approach to such a case is required to be cautious and careful. By its very nature, the exercise to be undertaken by a Court in relation to this provision is therefore somewhat typical and delicate.” It is this approach that informed the Court’s careful and forensic consideration of the adequacy of the evidence in record, which followed. In this context, it is important to note that there exists another normative tension within UAPA jurisprudence: for one set of courts and judges, the fact that the UAPA exists to deal with serious crimes like terrorism implies that the judiciary should have a reflexive pro-State attitude in such cases, overlook the violation of procedural safeguards (recall the recent Sai Baba order of the Supreme Court) and essentially keep people in jail. For another set of courts and judges, however, the very stringency of the UAPA’s provisions requires courts to be even more vigilant, and consider the facts even more carefully before condemning individuals to years and decades in jail without trial. The Bombay High Court’s judgment belongs to the latter, pro-liberty category.

Secondly, while the High Court’s order is welcome and praiseworthy, it is impossible to ignore – as the Court itself notes – that at the time of the judgment, Anand Teltumbde had spent two and a half years in jail. This is a function of the increasing length of UAPA bail hearings, and indeed the reflexive instinct of trial courts (and in many cases, the High Court and Supreme Court) to refuse bail until a few years of incarceration have passed. Indeed, there is no reason why today’s High Court order could not have been passed by the trial court, at the first time of asking.

And finally, what of the other BK-16 cases? In paragraph 23, the Court attempted to distinguish this case from its denial of bail to Hany Babu and Jyoti Jagtap. While the Court made something of an effort for the former (pointing to various recoveries from Hany Babu), in Jyoti Jagtap’s case, it did not even do that: the Court simply said that “our judgment [in Jyoti Jagtap’s case] speaks for itself”, and that “we do not agree” that the two cases are identical. With the greatest of respect, this is something of a cop-out. The Jyoti Jagtap bench was the same bench as the present one (Gadkari and Jadhav JJ), and as I have written before, the Court’s entire consideration of the evidence in that kind evinced an approach that is the polar opposite from the one in this case: in denying bail to Jyoti Jagtap, the Court did fill in gaps in the Prosecution’s case with presumptions of conspiracy, and did interpret the UAPA’s provisions very broadly (see, for example, the Court’s analysis of criticisms of demonetisation and of the Prime Minister). I respectfully submit that these two judgments cannot stand together: while the Anand Teltumbdge’s judgment deserves appreciation and praise, Jyoti Jagtap’s judgment remains problematic, and it is to be hoped that it will be corrected on appeal.

At the time of writing, the Bombay High Court has stayed its judgment by one week to enable the NIA to appeal to the Supreme Court. We shall, therefore, soon know if Anand Teltumbde will walk free, or whether the Supreme Court will elect to stay this detailed and well-reasoned judgment, and keep him in jail.

Forgetting the Basics: The Bail Orders in Jyoti Jagtap and Umar Khalid’s Cases

In June and October 2021, the Delhi and Bombay High Courts had passed two important judgments on bail under the Unlawful Activities Prevention Act [“UAPA”]. The Delhi High Court’s judgment(s) granted bail to Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal, who were accused of various UAPA offences arising out of the February 2020 Delhi riots. The Bombay High Court granted bail to Iqbal Ahmed Kabir Ahmed, who was accused of criminal conspiracy involving members of the banned ISIS group. The significance of these judgments – I had written at the time – lay in how they articulated a “jurisprudence of liberty” within the stringent confines of the UAPA (see “Back to the Basics” and “Staying with the Basics“). The High Court justices addressed themselves to the fact that section 43(D)(5) of the UAPA – as interpreted in the Supreme Court judgment of Watali – effectively makes the grant of bail impossible, and ensures that people are jailed without trial for years. In response, the Courts formulated two principles that would guide judicial determinations of bail under the UAPA. In a post about the Supreme Court’s (similar) judgment in Thawha Faisal’s case (see “Entrenching the Basics“), I summarised these principles thus:

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

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

At the time, one hoped that these judgments – especially supported by the Supreme Court ruling in Thwaha Faisal – marked the beginnings of a consistent judicial pushback against State and prosecutorial impunity under the UAPA. This was not to be. This week, two other bail judgments – again, from the Bombay and Delhi High Courts – reveal that UAPA adjudication continues to be inconsistent and judge-centric, and that individual liberty is, essentially, subject to the outcome of a judicial lottery. Not only is there inconsistency within the same Court, but – as we shall see – inconsistency in the pronouncements of the same judge within the same Court. Unfortunately, the costs of this inconsistency are measured in weeks, months, and years in jail.

Jyoti Jagtap and the Bombay High Court

In Jyoti Jagtap vs NIA, a division bench of the Bombay High Court denied bail to Jyoti Jagtap, a member of the Kabir Kala Manch troupe. The case arose out of the violent events around the Elgar Parishad march on 31 December 2017. The Prosecution’s case was that Jyoti Jagtap – and the Kabir Kala Manch – had made various provocative speeches and performed provocative plays in the days leading up to the Elgar Parishad, and on the day of the event. The Prosecution argued that the KKM’s actions were tied to a larger conspiracy under the aegis of the banned CPI (Maoist), with the goal of overthrowing the State. The Prosecution also relied upon certain witness statements from 2011 (which, of course, had not been subjected to cross-examination at this stage of the proceedings) to the effect that Jyoti Jagtap had been seen in the forest, and in meetings with Naxalites.

In its analysis, the Bombay High Court held, first, that the witness statements showed Jyoti Jagtap’s “active member” of the banned CPI (Maoist), by virtue of her presence in meetings with Naxalites (paragraphs 9.1 and 9.2), and alleged involvement in arms training; receipts and documents that showed her organisational role in the Elgar Parishad event (paragraphs 9.3 to 9.7); and “incitement of hatred and passion” on the day of the event, which showed that KKM was seeking to “overthrow” and “ridicule” the government (paragraph 9.8). Evidence for this “incitement of hatred and passion” – according to the High Court – included ridiculing the phrase “acche din”, referring to the Prime Minister as an “infant”, and “atrocities on Dalits in modern India.” The High Court then referred to the National Investigative Agency’s account of the internal structure and functioning of the CPI (Maoist), as was recorded in the previous bail order in Hany Babu’s case, and noted that, for these reasons, Jyoti Jagtap’s acts would have to be assessed in the context of the “larger conspiracy” carried out by the CPI (Maoist). The Court held (paragraph 10):

The documents referred to herein above clearly highlights the active role of Appellant in so far as organizing the Elgar Parishad event but more importantly it is the association of Appellant with the prominent members of CPI(M) which is a designated terrorist organization which cannot be lost sight of. (Emphasis supplied)

Bail was accordingly denied.

Let us briefly recall the second of the two principles that I had set out above: “The allegations in the chargesheet must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.” The importance of this principle has already been discussed, and we are now in a position to see how the Bombay High Court’s bail order evidently violates it. The actual “events” in question involve the violence that occurred in the aftermath of the Elgar Parishad event. Admittedly, Jyoti Jagtap was not accused of any violent act. What she had done – allegedly – was to play a role in the organisation of the event, and to perform on the day. But to link her to the violence – and deny her bail – the following inferences (none of which were demonstrably proven) had to be made:

1. That the Elgar Parishad event was a CPI (Maoist) conspiracy, and that the violence was the design of the CPI (Maoist).
2. That Jyoti Jagtap’s prior association with “prominent members” of the CPI (M) – dating back seven years and more – demonstrated her participation in the specific conspiracy set out in point (1). Note that “association” is a very broad term, and indeed, it was for this reason that the Supreme Court in Arup Bhuyan’s case had clarified that, for the purposes of the UAPA, membership meant “active membership”, i.e., incitement to violence; mere attendance at meetings, for example, wouldn’t do. The High Court did not engage with Arup Bhuyan’s judgment.
3. That the speeches and performances on the day were in furtherance of this “conspiracy”, and caused the violent events that followed.

Indeed, in order to fill in the gaps in the Prosecution’s case through inferences, the Bombay High Court resorted to increasingly strained logic, as paragraph 9.8 demonstrates: ridiculing the Prime Minister, his catchphrases, and his policies, statements on Shivaji and Tipu Sultan, and on atrocities against Dalits, were all construed as “inciting passion”, and in furtherance of the “larger conspiracy.” The High Court was forced to do this, because the actual evidence against Jyoti Jagtap, as we have seen, was negligible; thus, the only way to establish the “prima facie” case against her and deny her bail under the UAPA was for the Prosecution and the Court to create a set of inferences that would connect her (innocuous) acts, such as playing an organisational role in the event and speaking at it, to the (actual) events – the violence – through the (unproven) vehicle of a “larger conspiracy.”

But it is in the very nature of an accusation of “conspiracy” that silences are damning: absences in the Prosecution’s case can be explained away on the assumption that the accused is simply a good conspirator who covered their tracks. This is why judicial scrutiny – and the resistance to filling in the gaps through inferences – becomes particularly important. What is happening here can be illustratively compared to dropping a stone into still water. The stone causes a splash, and ripples emanate from the point of contact. The ripples grow in size but lessen in intensity, until the point at which the calmness of the water is restored. If we think of the splash as the event in question, the legal standard articulated in the previous High Court judgments was that you must at least have visible ripple that you’re linking back to the splash (i.e., the link between the event and the accused actor cannot be tenuous beyond a certain degree). What we have in Jyoti Jagtap’s case is someone coming along an hour after the splash, and saying – without demonstrating – that a particular movement on the surface of the water is somehow traceable back to the stone. This is not a sustainable judicial standard.

Umar Khalid and the Delhi High Court

In March 2022, the Sessions Court had denied bail to Umar Khalid, in a case arising out of the 2020 Delhi riots. I had written at the time that the Court’s order was like being a “stenographer for the Prosecution”: the Prosecution’s statements were not checked even for internal consistency, gaps were explained away through inferences (this was especially stark, as Khalid was not even in Delhi when the riots took place), vague witness statements were interpreted to the detriment of Khalid, and any aspect of the case that benefited the defence was not considered on the basis that it was a “matter for trial” (the problems with this last approach have been discussed in some detail earlier).

The Delhi High Court’s judgment upholding the order of the Sessions Judge, is – by and large – a replica of that order; interested readers, therefore, can look at the “Stenographer for the Prosecution” piece for more detailed analysis. Indeed, in paragraph 49, the Court notes that it is in “full agreement with the findings of the Ld Sessions Judge” on the question of appreciation of evidence, and “does not wish to burden this judgment” through reiteration – thus exempting itself from the burden of independent analysis as well. Be that as it may, there are a few parts of the judgment that deserve to be flagged, as they demonstrate something quite similar to the Bombay High Court’s judgment in Jyoti Jagtap: that as the gap between the event and the accused grows larger, the Court needs to resort to an increasingly stretched set of inferences in order to fill it.

These inferences begin in paragraph 52. The High Court notes that, after the passage of the Citizenship Amendment Bill, (a) a WhatsApp group called the “Muslim Students of JNU” is formed, of which Umar Khalid is a member (emphasis mine); (b) the day after, the United Against Hate group conducts an agitation against the CAA, which Umar Khalid attends (emphasis mine), and – allegedly – supports a call for “chakka jam”; (c) another WhatsApp group called “CAB Team” is formed, of which – again – Umar Khalid is a member (emphasis mine). The High Court concludes that therefore, “a collective reading of the events that unfolded on each day after 04.12.2019 cannot be shrugged aside and it cannot be said that nothing incriminating has been.” (emphasis mine) Thus, we can once again see the gap between fact (membership of WA groups and participation in an agitation) and event (riots), a gap that is large enough to drive a coach-and-four through, and this gap is effectively filled by stipulation: the High Court says that all of this is incriminating, without explanation for why it is so. In fact, not only does this gap not seem to bother the High Court, but the Court appears to positively revel in it. In paragraph 55, it notes:

It may be reminded that under the UAPA, it is not just the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity; not just the intent to strike terror but the likelihood to strike terror; not just the use of firearms but the use of any means of whatsoever nature, not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, that constitutes a terrorist act, within the meaning of section 15 of UAPA. Moreover, under section 18 of UAPA, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act that is also punishable. In fact, even acts preparatory to commission of terrorist acts are punishable under section 18 of UAPA. Thus, the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its existence but the extent of its applicability; but such objection of the appellant is outside the scope and ambit of section 43D(5) of the UAPA. (emphasis supplied)

Quite apart from the fact that the final sentence is borderline incoherent, the entire reason why the Courts exist – and why judicial review exists – is precisely to introduce an element of the rule of law oversight over State action, so that words with boundless scope – such as “likelihood”, “likely to cause”, “of whatsoever nature”, “attempt”, “advocating”, and “preparatory” – are given a clear and precise meaning, and – most importantly – a limit (think of the stone-in-the-water image again). In its reproduction of these words, however, the High Court does the opposite: it uses their fuzzy nature and unclear boundaries as a justification for the inferences that it fills the gap with: in other words, imprecision begets imprecision: in the mind of the Court, the vagueness of the legal language justifies the vagueness of the allegations.

Indeed, the entire judgment is shot through with similar vagueness. In paragraph 57, the High Court says that the fact that Umar Khalid’s speech about Donald Trump was delivered despite permission for it being rejected gives “credibility” to the prosecution’s accusation that this same speech “heralded” the Delhi riots. This is a sine qua non to end all sine qua nons: there is no reference to the contents of the speech (for good reason), but the mere fact that the speech was given in defiance of the administration is used by the Court as a basis for buttressing the prosecution’s accusation that it was meant to “herald” the riots. In the same paragraph, the Court refers to a “flurry of phone calls” between the accused after the riots began; but the only circumstance in which a “flurry of phone calls” after a riot begins becomes suspicious is if you have already decided that the accused were conspirators, and their “flurry of phone calls” was in furtherance of their conspiracy. In all other circumstances, a “flurry of phone calls” between activists in the immediate aftermath of a riot is one of the most natural things imaginable; in fact, it would be silence that would be infinitely more suspicious.

We then come to paragraph 58, which is uncannily similar to paragraph 9.8 in Jyoti Jagtap: having probably realised that its inferential chain stretches credulity in the extreme, the High Court is now forced to look at the actual evidence on record, and make something out of where nothing exists. Thus, the High Court seizes upon Umar Khalid’s words – “inquilabi salam” (revolutionary greetings) and “krantikari istiqbal” (revolutionary welcome) – and finds incriminating material there. In a highly confusing passage that cites Robespierre and Nehru, the Court says that “Revolution by itself isn’t always bloodless, which is why it is contradistinctly used with the prefix – a ‘bloodless’ revolution. So, when we use the expression “revolution‟, it is not necessarily bloodless.”

What? Is the Court trying to say that henceforth, whenever anyone uses the word “revolution”, they have to preface it with the word “bloodless”, otherwise they will be caught and thrown in jail under the UAPA, and denied bail? The very absurdity of this paragraph should make clear that the High Court is clutching at straws here: what it has before it are a set of facts (Umar Khalid’s conduct) that has no conceivable relationship with what actually happened (the Delhi riots); and to establish the relationship, not only does the High Court have to construct an elaborate labyrinth of assumptions and inferences, but also put some of our most common political turns of phrase into a torture rack, until they crack and confess to any meaning the Court wishes them to confess to.

The Court concludes its analysis in paragraphs 62 and 63, where it notes the existence of a “pre-meditated conspiracy” to do a chakka jam and incitement to violence, a “pre-planned” attack, Umar Khalid’s membership of WhatsApp groups and speeches, the “flurry of calls”, and Umar Khalid’s active involvement in the protests against the CAA. As with the Jyoti Jagtap bail order, let us identify the assumptions at work, that the Court needs to fill in the gaping holes in the Prosecution’s case:

1. That calling for a chakka jam logically entails incitement to violence and riots.
2. That membership of WhatsApp groups is indicative of participation in a conspiracy.
3. That a “flurry of calls” after a riot has started – between activists who have been engaged with the issue in question – is indicative of a conspiracy.
4. That Umar Khalid’s involvement in protests agains the CAA is indicative of his participation in a conspiracy to cause riots.

The High Court needs to do all this because – as the evidence showed very clearly – at no point did Umar Khalid call for violence, publicly incite violence, commit violence, or participate in riots. Thus, all we have is membership of WhatsApp groups indicating a vague “association”, a “flurry of calls” that also indicates an “association”, and involvement in protests; the High Court weaves this together into a boundlessly flexible mesh called “larger conspiracy”, and tops it off with a dash of Robespierre and Nehru. Thus, an individual who has now been in jail for two years without a trial is condemned to a further – uncertain – spell in prison, while we still wait for the trial to begin.

Post-script: The Contradictions of Justice Siddharth Mridul

Before concluding, it is important to flag a final point. The two-judge bench of the Delhi High Court that denied bail to Umar Khalid had, as its members, Justices Bhatnagar and Siddharth Mridul. The June 2021 bail judgment in Asif Aqbal Tanha’s case had, as its members, Justices Bhambani and Siddharth Mridul.

Under even the loosest standards of intellectual consistency, it is simply inexplicable how the same Learned Justice can – without further explanation – be party to two bail judgments that not only arose out of the same set of facts, but took polar opposite approaches to the issue. Let us begin with the most glaring and blatant contradiction: in paragraphs 49 – 58 in Asif Iqbal Tanha’s judgment, the bench – of which Justice Siddharth Mridul was a member – gives a narrow interpretation to the word “terrorism” under the UAPA, and notes that the Prosecution’s argument that the anti-CAA protest was designed to threaten the foundations of the nation is based on “inferences”, and that therefore, there is prima facie no case made out of terrorism, or conspiracy, or the commission of acts “preparatory” to terrorism. In paragraphs 62 – 67 of Umar Khalid’s judgment, the bench – of which Justice Siddharth Mridul is also a member – explicitly notes that the anti-CAA protest was not an “ordinary protest”, and then goes on to argue how the protests and the riots were linked, and how it all constitutes a terrorist act. How can the same judge simultaneously appear to believe both X and not-X? And if the same judge has changed his mind, and now believes not-X where at one point he so firmly believed X that he signed a judgment to that effect, are we not owed the courtesy of an explanation? Walt Whitman might claim the luxury of contradicting himself because he contains multitudes, but it is not open for a High Court judge to contain contradictory multitudes, at least not while he sits in his official capacity.

Similarly, in paragraph 35 of the Natasha Narwal order (which accompanied the Asif Iqbal Tanha order), the High Court bench – of which Justice Siddharth Mridul was a member – noted that “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.” In the Umar Khalid judgment, as we have seen, the bench – of which Justice Siddharth Mridul is also a member – dispenses with the need for any “specific or particularised” allegation at all, going – instead – by membership of WhatsApp groups and “inquilabi istikbal” to justify the denial of bail. Once again, the two approaches to the issue are simply irreconcilable.

It is one thing to have a polyvocal Court that speaks different tongues (although that is problematic enough). But it is quite unheard of to have a polyvocal judge. We can, perhaps, only shake our heads at this marvel, and agree with Hamlet when he wisely said, “there are more things in heaven and earth than our dreamt of in your philosophy.”

Conclusion

The judgments in Jyoti Jagtap and Umar Khalid show that the Courts continue to be sites of contestation when it comes to the UAPA, State and prosecutorial impunity, and under-trial incarceration. These two judgments belong to the “executive Court” tradition, where the language of the Court resembles – and often goes beyond – the language of the executive. In UAPA bail cases, the executive Court’s judgments are marked by how judicial reasoning fills in the gaps in the Prosecution’s case with inferences and assumptions, and innocuous and political legitimate forms of dissent are rendered illegal by transplanting them into a “larger conspiracy”, and how the issue of the conspiracy itself remains an assumption. As we have seen, however, this is not the only way under the UAPA: the 2021 and 2022 bail judgments – that also come from the Bombay and Delhi High Courts – show how a judiciary that is sensitive to the claims of individual liberty can act under the confines of the UAPA. Much, therefore, will depend upon which of these two approaches, over time, finally transforms into “settled law”: in the meantime, each individual case represents an important site of the legal and constitutional struggle against the UAPA’s entrenchment of State impunity.

Stenographer for the Prosecution: The Bail Order in Umar Khalid’s Case

In the last few months, there has been something of an internal tug-of-war within the judiciary on the question of bail under the Unlawful Activities Prevention Act [“UAPA”]. As we have seen, the Delhi and Bombay High Courts have pushed back against the notion that in a UAPA case, the judiciary’s role is to act as a stenographer for the Prosecution, mechanically reproduce the allegations in the chargesheet, and keep people in jail until the ten or fifteen years that it takes to complete a trial. These Courts have pointed out that, given how strict the UAPA’s threshold requirement is for granting bail, it behooves the judge to subject the Prosecution’s case (which is the only case that exists at the time of bail) to an equally strict scrutiny: both on the necessity of factual evidence being concrete and specific, and on the question of whether the legal standard under the UAPA is made out. On the other side, we have the Supreme Court’s judgment in the notorious Watali case, as well as some trial court judgments (e.g., in Safoora Zargar’s case), where the attitude has been that Courts should adopt a feather-light touch towards the prosecution case when considering bail, and not look too closely or too deep at that the State has placed before them. If the result is that people stay in jail for upwards of a decade waiting for trial, then that is just the way it is.

The order passed today by the Addl. Sessions Judge at Karkardooma Courts in Delhi, denying bail to Umar Khalid in the Delhi riots case, is significant because it represents that extreme version of the second approach. As is well-known by now, the core argument of the Prosecution in these cases is that the Delhi riots were the culmination of a well-planned conspiracy, which were “masterminded” by a group of people, including Umar Khalid, under the guise of protesting against the CAA/NRC. In Khalid’s case – as a reading of the bail order makes pretty clear – there were several hurdles before the Prosecution, to wit that: (a) Khalid had given no public call to incitement to violence – in fact, quite the contrary; (b) there was no material on record showing Khalid’s participation in funding or transporting arms, and no recoveries from him; (c) when the riots took place, Khalid was not even in Delhi. This being the position, the Prosecution’s case was strung together by a set of witness statements to the effect that “X saw Khalid along with Z”, “A heard Khalid say G”, and – in some cases – “B heard Y say that Khalid said C” (it is important to note that the last of these statements legally could not be considered by the Court at trial, because it ie hearsay).

In this context, the bail order takes the following structure: first, the Court records what the Prosecution witness stated (in most cases, this witness is anonymous, carrying names such as “ROMEO” and “JULIET”); secondly, it records the defence counsel’s argument that – for certain well-founded reasons, the statement is ex facie unreliable (e.g., it was recorded substantially after the fact, or is contradictory to another statement, or has already been disbelieved in separate proceedings); thirdly, it says that the defence counsel’s objections can only be considered during the trial, and are therefore discounted. Fourthly, and ergo, the witness statement is to be accepted as entirely true (no matter how implausible, contradictory, or vague in particulars it might be).

This is basically the entirety of the bail order. In paragraph 10, the Court records witness Tahira Daud’s statement that Umar Khalid expressed support for Sharjeel Imam’s call for a chakka jam in a meeting in a Jangpura office on a certain date; it then records protected witness “Bond’s” statement that Umar Khalid called for overthrowing the government when “the time is right”, and for a chakka jam; it then records Bond’s statement that at a certain meeting two other people said that Umar Khalid had told them to use women and children as shields at the protests; in paragraph 10.4, the Court refers to witness “Bravo’s” statement about Khalid’s presence at a meeting at the Indian Social Institute; then to a statement by witness “Saturn” about a meeting between Umar Khalid, Khalid Saifi, and Tahir Hussain at Shaheen Bagh; then, in paragraph 10.5, to statements by witnesses “Smith”, “Echo”, and “Sierra” about a “conspiratorial meeting” at Jafrabad between Umar Khalid, Pinjra Tod, and others. In fact, paragraph 10.5 is particularly instructive, as it is quite representative of the bail order, and deserves to be set out in full:

A conspiratorial meeting took place in the intervening night of 23/24.01.2020 at Seelampur, Jafrabad Protest site between Umar Khalid with Pinjra Tod members and others. It was decided to induce local women of Seelampur to start stock piling knives, bottles, acids, stones, chillypowder and other dangerous articles to be used in rioting as part of a conspiracy. The plan was to escalate the protest to the next level of chakkajam and then riots. This is confirmed by statement of protected witness Smith, Echo and Sierra. (Again, Ld. Senior Advocate referred to some minor inconsistencies which the witness will be required to explain during trial, but there are incriminating material against the accused in the statement of the said witnesses).

On a reading of this paragraph, the following stands out. First, vagueness of particulars: it is unclear who “the others” were or who the “members” of Pinjra Tod were, and there is no material detail at all about what specifically was said, and what made the meeting “conspiratorial”. This is particularly important, because even if you were to discount the points that follow, and subject the statements to a no-touch scrutiny, the vagueness makes these statements incapable of supporting a concrete and specific charge under the UAPA; but in any event, and secondly, there is not even light-touch, but zero scrutiny of the witness statements on their own terms; and thirdly, there is no engagement, but summary dismissal of the defence’s attack on the witness statements – again, on their own terms – with the observation that this is a matter for trial. It is important to ask oneself if a system rhetorically committed to the “rule of law” ought to be countenancing jailing people for years without trial on such quality of reasoning.

In paragraph 10.7, the order refers to statements by “Helium” and “Crypton” about Umar Khalid telling Bangladeshis to fight against the CAA (again, even if true and taken at the highest, not a UAPA offence); in paragraph 10.11, there is perhaps the only reference to a public speech by Umar Khalid, in which he “refers” to the visit of then-President Donald Trump (what, specifically, Khalid said about Trump is not discussed). The Court then refers to various protected witness statements about certain other individuals – not Umar Khalid – allegedly preparing for riots; at this point, it is unclear how this serves as proof of conspiracy against Khalid; later on, however, the Court uses Khalid’s membership of a WhatsApp group – the DPSG – to establish his “links” with the conspirators. In paragraph 10.14, hearsay evidence returns: witness “Bond” records that he was told by someone else called Asif that he, Asif, had received instructions from Umar Khalid and Nadeem to start riots; the Court then records some other witness statements that do not feature Khalid, but uses that to conclude that the riots were, indeed, pre-planned, and not spontaneous. In paragraph 10.23, the Court refers to a “flurry” of calls that took place between a number of people after the riots started, including Umar Khalid. We do not know the content of these calls, so it is unclear what role they play in the Court’s analysis. The Court notes that “the calls still show how different accused persons are linked and talking to each other after the riots have begun and more importantly, most of the accused persons involved reached a common place.” Yet again, however, there is no explanation forthcoming of what this linking actually shows: indeed, this is a fourth common theme running through the bail order. Both when it comes to the WhatsApp group and to the phone calls, in the absence of any specific evidence, the Court falls back on what appears to be a guilt by association argument (somewhat ironic, as none of the accused have actually been convicted yet): that Khalid’s role in the conspiracy is made out through these “links”, even though there is no evidence about what the specific nature of these links was.

In paragraph 12 onwards, the Court refers to some more protected witness statements, which – again – stand out in their vagueness. In paragraph 12.3, witness “Gama’s” statement that Umar Khalid gave “provocative statements” is recorded (what were these statements? Whom – and how – did they provoke?); in paragraph 12.4, witness “Delta” states that Umar Khalid gave “a speech against the government” (…and?); in paragraph 12.5, witness “Saturn” states that “Tahir Hussain also went to Shaheen Bagh on 08.01.2020 where Umar Khalid and Kahid Saifi were also present” (… and?); in paragraph 12.6, witness “Helium” states that Umar Khalid talked about educating Bangladeshis to fight against the CAA (… and?); in paragraph 12.7, protected witness “Beeta” (sic) states that he saw a video of Umar Khalid giving a speech about coming out onto the roads for Trump’s visit (…and?); this goes on in the same mould, with similar anonymous witness statements – vague and free of material particulars – recording, for example, Umar Khalid telling a third party about spilling blood.

This detailing is undoubtedly tedious; but it is important to set it out, because it helps to contextualise the Court’s legal finding about Umar Khalid’s “role” in the riots, which occurs at paragraph 12.1 and 14:

In terms of the chargesheet, as discussed above, it is noticed that the name of accused Umar Khalid finds a recurring mention from the beginning of the conspiracy till the riots. He was a member of Whatsapp group of Muslim Students of JNU. He participated in various meetings on 07.12.2019, 08.12.2019, 13.12.2019, 26.12.2019, 08.01.2020, 23/24.01.2020, 10.02.2020. He is also a member of the DPSG group and attended meeting at Indian Social Institute (ISI) on 26.12.2019. He gave reference to Mr. Donald Trump, President of USA in his Amrawati speech on 17.02.2020. He was also mentioned in the flurry of calls that happened post riots, as mentioned above. He was instrumental in creation of JCC.

Ld. Senior Advocate for the accused had correctly argued that accused Umar Khalid was part of the Whatsapp group MSJ and DPSG but he has not written many messages in those groups and they are not overtly provocative or incriminatory. However, the fact that he was part of such groups created for specific objects and his acts or presence throughout the period beginning from the passing of the CAB Bill in December 2019 till the February 2020 riots, as mentioned above, has to be read in totality and not piecemeal. He has connectivity with many accused persons.

The case against Khalid, therefore is based on: (a) membership of WhatsApp groups; (b) participation in various meetings, the particulars of which are provided by anonymous witnesses, for the most part in vague terms; and (c) being mentioned in a “flurry of calls” after the riots began.

Out of these three legs, the first and third wouldn’t be enough – as they say colloquially – “to hang a dog on.” Of the second leg, as pointed out above, every statement, in all its glorious vagueness, is accepted by the Court without any further analysis; indeed, as we have seen above, many of these statements – even taken on their own terms – are allegations of Khalid engaging in constitutionally protected, legitimate speech; when you take those away, what you are left with is essentially four or five anonymous witness statements claiming that Khalid said X or Y incendiary or violent thing. Now, the Court engages in no analysis about whether these statements – even if taken as absolutely true – would constitute a UAPA offence; instead, it undertakes an exercise of filling in the gaps in the Prosecution’s case, by pulling together these statements, “membership” of WhatsApp groups, and “connectivity” with accused persons, throwing them together, and claiming – without reference to the legal standards – that the bar under UAPA has been attracted.

Thus, on a close reading of the sixty-one page long bail order, the denial of bail to Umar Khalid is based entirely upon an act of judicial stenography: the Court reproduces the statements in the chargesheet, refuses to examine them on their own terms, refuses to engage with the defence’s examination of them, and finally – and most importantly – fills in inferences of guilt where the prosecution’s case is vague or missing particulars. It is crucial to note that UAPA precedent does not require the Court to act as the prosecution’s stenographer in bail cases: not even the Watali judgment goes that far, and – as we have seen – there are, by now, numerous High Court judgments (which the Court fails to engage with) that articulate the basic common sense that a UAPA case does not require a judge act as if they have undergone lobotomy just before writing the judgment.

The implications of this are both obvious and frightening. The bail order takes us to a position where the Prosecution can write literally anything in its UAPA chargesheet – vague, inconsistent, implausible, ex facie false, things that you would laugh at if someone presented them to you and tried to make your believe them – and we will have a bail order that will reproduce those statements, park all objections for a trial that will not finish for the next ten years, and ensure that people remain in jail all that time. This is the embodiment of a broken criminal justice system – broken not just by the UAPA and its language, but broken by judges who, somewhere in all this, seem to have forgotten the judicial role as being one that tempers and confronts State abuse.

It now remains to be seen whether that internal tug-of-war that I mentioned at the beginning of the post will see a course-correction when this – or other cases – go up on appeal; or whether we will only see the continued descent of the judiciary from sentinel on the qui vive to stenographer for the Prosecution.

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.

Staying with the Basics: The Bombay High Court on Bail under the UAPA

On 13th August 2021, a two-judge bench of the Bombay High Court (speaking through Shinde and Jamadar JJ) granted bail to one Iqbal Ahmed Kabir Ahmed, who had been charged under various sections of the Unlawful Activities Prevention Act (UAPA), and several other laws. What is significant about this judgment is that it is one of the relatively rare instances of an appellate Court granting bail on merits to an accused in a UAPA case, notwithstanding Section 43(D)(5) of that legislation, and what has been said by the Supreme Court in its infamous Watali judgment. I would suggest that – much like the judgment of the Delhi High Court in Asif Iqbal Tanha – delivered a month before – the judgment of Shinde and Jamadar JJ shows how it remains possible for courts to continue developing a jurisprudence of liberty even within the interstices of S. 43(D)(5) and Watali, should they choose to do so.

As the Court records, there were two main allegations against the accused: that he was part of a criminal conspiracy involving members of the (banned) ISIS terrorist group, and that he had procured material in order to build an explosives device. The Prosecution marshalled evidence to support these claims, including the recovery of an “oath form” pledging allegiance to Abu Bakr al-Bagdadi, an electric switchboard to which the IED device was allegedly soldered, and statements by witnesses about how the accused had taken part in discussions about various atrocities being inflicted upon Islam, and the need to take vengeance for said atrocities. The Prosecution argued that this – taken prima facie, as required by S. 43(D)(5) – was sufficient to establish the commission of offences under the UAPA, as well as membership of a terrorist organisation. The Sessions Judge agreed with these arguments, and rejected bail.

The High Court examined the standard that it would need to apply under S. 43(D)(5) of the UAPA. Relying upon the previous Division Bench judgment in Dhan Singh v Union of India, the prima facie does not relegate the Court to the role of a passive observer, but does require it to “cross-check” the truthfulness of the allegations on the record, and ask whether they are “improbable” or “unbelievable” (paragraph 23). Furthermore, as the three-judge bench of the Supreme Court in Ranjeetsing Brahmajeetsing Sharma v State of Maharashatra (which preceded Watali) had observed, statutory bars to bail, as found under special laws, “should not be pushed too far.” (paragraph 26) Indeed, in that case, the Court put its finger on the issue by noting that if, indeed, the statutory bar under special laws would apply only if a Court was convinced that an accused had not committed an offence, then an order granting bail was tantamount to a judgment of acquittal – something that was definitely not intended by the legislature. Thus, what needed to be seen was whether, on a conspectus of the material on record, the Court was of the view that “in all probability … [the accused] may not be convicted” upon trial. And indeed, as the High Court noted, the standard under the NDPS and MCOCA (which was what was applied in Ranjeetsing Brahmajeetsing Sharma) was actually more stringent than that under the UAPA.

Having set out the legal standard, the Court then applied it to the facts at hand. First, on the witness reports, the Court noted that, taken at their highest, they revealed discussion between the accused and his friends about atrocities upon Islam and taking revenge for said atrocities. Even if the material was admitted to be true, the accused was found to have expressed support for ISIS, which – although repugnant in its own right – did not amount to conspiracy to commit an offence or incite violence. As Mr. Mihir Desai, counsel for the accused pointed out, the Supreme Court had already held in its famous Shreya Singhal judgment that there was a conceptual distinction between discussion, advocacy, and incitement, with only the last being subjected to criminal sanctions consistent with the Constitution. The Court agreed with this argument, noting that “there is considerable substance in the submission of Mr. Desai that the material qua the accused, at the highest, is in the realm of discussions.” (paragraph 32)

Secondly, on the recovery of the oath, the Court found that evidence had not been adduced to show that the accused had signed it. Consequently, taken at the highest, the evidence showed that the accused had been in possession of an oath form. And “mere possession of such oath form,” the Court held, “without subscribing thereto, prima facie, does not appear to be an incriminating circumstance.” (paragraph 33) And thirdly – and most straightforwardly – while the switchboard had been recovered from the accused, there was no recovery that demonstrated – even prima facie – that this switchboard was being deployed to manufacture an explosive device.

The Court then went on to note that at the time of hearing, the accused had been custody for five years, with charges being framed only after four and a half years. Following the judgment in K.A. Najeeb, the Court correctly noted that this was a straightforward violation of fair trial rights, and consequently – in any event – the case for bail was made out (paragraphs 36 – 41)

The merits analysis of the Court repays close study. I would respectfully suggest that – as I had pointed out before in the analysis of the Delhi High Court’s judgment in Asif Iqbal Tanha’s case – there are a set of core principles that, if applied, constitute an appropriate balance between the stringency of S. 43(D)(5) (as it stands), and the constitutional obligation of courts to protect the fundamental rights of all citizens. 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.

Both these principles, I would suggest, are classic principles of criminal jurisprudence. In the context of the UAPA, they are to be deployed at the stage of determining whether the Prosecution material makes out a prima facie case or not, in the first place. It is only after this standard has been met that the bar under 43(D(5) kicks in. And nor are these principles in conflict with anything set out in Watali.

It is therefore submitted that the judgment of the Delhi High Court in Asif Iqbal Tanha (notwithstanding the Supreme Court’s direction that it “not be treated as precedent”) and of the Bombay High Court in Iqbal Ahmed Kabir Ahmed, are important in crafting a jurisprudence that ensures that individual rights are not entirely submerged under the UAPA. They are part of a longer tradition of judgments, going back to the Bombay High Court’s 2013 bail orders in the Kabir Kala Manch cases, that remind us that even under repressive laws, courts still have a vital – and indispensable – role to play as the sentinels on the qui vive – should they choose to do so.