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.

Guest Post: Union of India v K.A. Najeeb – a Ray of Hope for UAPA Undertrials?

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


[This is a guest post by Bharat Harne.]


The Supreme Court (SC) on 1st February 2020 delivered an important judgment, Union of India v KA Najeeb (K.A. Najeeb), related to granting of bail in Unlawful Activities Prevention Act  (UAPA) 1967 cases. The Court held that any constitutional court has the power to grant bail to people accused of offences under UAPA irrespective of Section 43-D (5), so as to enforce the right to speedy trial which is guaranteed under Article 21 of the Constitution.  The judgment has been hailed as the step in the right direction, given that the stringent provisions of Section 43-D (5) makes it almost impossible for a person to secure a bail for an offence under UAPA and under-trials languish in jail while the trial drags on for years. In this post I will highlight the importance of the judgment in the context of the operation of UAPA on ground and will try to answer some of the questions which K.A. Najeeb has thrown up.

UAPA – A Tool of Oppression

 The UAPA creates an alternate criminal justice system where the Code of Criminal Procedure (CrPC) does not apply and there are little safeguards for the accused. Empirical research has shown that two-thirds of the accused end up getting acquitted. However, the criminal trial drags on for years and most of the accused end up serving significant amount of time in jail before the trial concludes. This is primarily because of Section 43(D)-5 of the UAPA. According to Section 43(D)-5 a person accused of an offence under UAPA cannot be released on bail if, on a perusal of case diary or the report made under s. 173 of CrPC, the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Notice that the standard of prima facie is extremely low. In NIA v Zahoor Ahmad Shah Watali held that the to satisfy the standard of prima facie no elaborate scrutiny or dissection of the material is required. Simply put, the court merely has to rely on the words of the investigating agency and see whether the allegations fit the offences. In view of such stringent bail provisions and lengthy trials there was no way for undertrials to get bail even though they ultimately they might end up getting acquitted. Thus, an accusation under UAPA becomes as good as conviction and a way for the State to punish people without subjecting them to a fair trial.

The lack of any interim relief paved the way to a particularly odious practice i.e., informal plea bargaining. Since undertrials languished in jails for years and years they end up serving a significant portion of the sentence of the crime they are accused of even before the trial has concluded. This leads to the accused reaching an informal arrangement with the prosecutors wherein the former plead guilty, resulting in a conviction that is usually for the period already served as undertrial or a reduced sentence. It is not unlikely that quite a few accused who were actually innocent pleaded guilty just so that they can get out of prison. The fact that a person is forced to plead guilty for a crime that they did not commit is illustrative of how UAPA is doing grave injustice to the accused and violating their right to liberty.

It is in this context that the decision of the SC becomes very important. The court has held that bail can be granted to an undertrial irrespective of Section 43-D (5) of the UAPA if the court finds that right to speedy trial under Article 21 is being violated. In the instant case the accused had spent nearly five years in prison out of maximum 8-10 for which he could potentially get convicted. Moreover, 276 witnesses who were left to be examined when the matter came before the SC. It held Section 43-D (5) is not a bar when right to speedy trial is violated and accordingly granted bail in this case. The decision of the court is welcome, however the decision itself has opened up a few questions which I will now explore.

A Few Concerns

First, it is not exactly clear what is the standard used by the Court to arrive at the finding that right to speedy trial has been violated. The court seemed to have been led by two considerations – a) the period of time spent in jail and b)- the possibility of early conclusion of trial. With respect to the first condition the accused had spent five out of the maximum of 8-10 years for which he could be convicted. However, the court stopped short of giving any principled reasoning which could be used in future cases to decide whether the right to speedy trial has been violated. Currently s. 436A of CrPC (which does not apply to UAPA) states that if an accused has spent half the period of time out of the maximum period of punishment specified for that offence, the accused has to be released on bail. This provision was not a part of the original CrPC and was added in 2005. Although the Statement of Object of Reasons to the CrPC amendment does not talk about s. 436A, the rule of giving bail on spending half the time specified for that offence is prison emerges out of the jurisprudence of SC in cases concerning right to speedy trial. In Hussainara Khatoon v Home Secretary, State of Bihar (which laid the foundation of right to speedy trial)- the court observed how several undertrial prisoners has spent more than one half of the maximum punishment of which they could be convicted. The court directed the government to appoint lawyers for such undertrials and file an application for bail. In Supreme Court Legal Aid Committee v UoI, another case dealing with right to speedy trial, the court issued a number of directions with respect to pending cases. One such direction was to release those undertrials who were accused of an offence under NDPS Act carrying maximum punishment of five years or less and have spent time in jail which is not less than half the punishment provided. It was only after this line of cases that s. 436A was added to the CrPC. It can be safely be assumed that the legislature was inspired by jurisprudence on right to speedy trial. It is therefore submitted that the rule contained in s. 436A of CrPC i.e., half the maximum punishment as undertrial can be a good standard for UAPA cases where the right to speedy trial is being prayed because the source of this rules itself is jurisprudence on right to speedy trial. If not as a fixed rule, it should at least give a presumption that the right to speedy trial has been violated and then the burden should shift on the state to justify continued detention.

Second, the court also took into consideration the time which it would take to conclude the trial. The court was of the opinion that in the present case since 276 witnesses were yet to be examined the trial will take long to finish and the accused ought to be released. It will be noticed that in the present case the court is concerned with a particular stage of criminal justice process, i.e., trial. However, it is well settled that right to speedy trial extends to all stages including investigation, inquiry, trial, appeal, revision and re-trial. In the context of UAPA it is important to pay attention to one particular stage i.e., investigation. This is because the NIA which is India’s anti-terror agency deliberately slows the investigation to keep the accused in prison for as long as possible. This is done by filing chargesheets and supplementary chargesheets with long gaps, which ensures that the trial is kept in suspended animation and the accused is in prison. This is especially done when the agencies know that their case is weak and will not stand a trial. This strategy has been adopted by the agencies in Delhi Riots case and Bhima Koregoan case. In both these cases the accused have been mostly denied bail. Since the right to speedy trial includes the stage of investigation the courts in the future will have to take this reality into account and expand the scope of SC’s decision in K.A. Najeeb. The SC’s jurisprudence on speedy trial and long period of investigation itself does not inspire much hope. In Rahubir Singh v State of Bihar the police of Bihar were accused of delaying the investigation to keep the accused in jail at any cost. The accused were a group of people caught while they were secretly attempting to cross the Indo-Nepal border at the height of Sikh militancy in 1984. It turned out that one of the persons was himself suspended from Indian Police Services for his anti- India activities. The court observed that the investigative agencies were justified in extending the investigation because the case involved ‘suspected conspiracies bristling with all manners of complexities’ and therefore even though there were ‘lulls’ in investigation it cannot be said that right to speedy trial was violated. While these considerations might have been true in that case, it is well known that arguments of ‘national security’, and ‘conspiracies involving complex investigation’ are a slippery slope to giving the executive free hand to trample on the liberties of its citizens. This exceptionalism might well play a role in future cases because the UAPA itself deals only with such suspected conspiracies and threats to national security and the Indian judiciary is notorious for buying into such arguments of ‘national interest’ and ‘national security’ too easily.

Third, India’s bail jurisprudence is notoriously inconsistent and discriminatory. For example, the MP High Court did not even apply the well settled principles of bail law in Munawar Faruqui case and inexplicably relied on Fundamental Duties to deny bail. Similarly, while bail was granted to Arnab Goswami in Article 32 petition because the courts thought the police was misusing its power, journalist Siddique Kaplan is languishing in jail and his Article 32 petition was rejected and when Arnab Goswami case was cited, it was simply remarked that every case is different. If constitutional courts fail to apply even well settled principles of bail law to regular cases, only time will tell how K.A. Najeeb will be applied in the future especially because the judgment does not even lay down any concrete principle on which bail is to be given and therefore remains susceptible to inconsistent and unprincipled application.

Conclusion

K.A. Najeeb has the potential to remedy injustice that is caused by stringent bail condition under s. 43-D(5) of UAPA.  However, this potential can be realized only if there is principled application of the judgment. In K.A. Najeeb the court relied on two considerations the period of time in jail as undertrial and the time left for conclusion of trial in order to determine whether right to speedy trial was violated but failed to specify any principled rule to decide future cases. In this post firstly, I have argued how the law can take shape in the future firstly showing how the rule in s. 436A of the CrPC can be a good indicator if not a brighline rule for violation of right to speedy trial; secondly, I have argued that the courts need to take into account the delaying tactics used by investigative agencies to effectively enforce right to speedy trial. In conclusion it is submitted that only if we have some settled principle based on which bail can be given in UAPA cases can we hope to effectively enforce right to speed trial and remedy the injustice caused by UAPA.

The Unwholesome Servility of the Kerala High Court

In 2020, while dismantling the constitutional guarantees of personal liberty, our Courts gave us some memorable lines as background score to accompany the clanking of prison bars. The prize for the best essay was finally split between the J&K High Court’s invocation of the Greek tyrant Menelaus and the Patiala House District & Sessions judge’s sanctimonious “if you play with embers…” Four days into 2021, however, a Kerala High Court Division Bench of Hariprasad and Haripal JJ have already beaten all comers for this year, with something truly extraordinary. In paragraph 39 of their judgment setting aside a well-reasoned bail order of the NIA Court, these judges note that:

“We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon’ble Judges who authored the judgments which is unwholesome.”

First of all, what is an “order … prepared as if it is a court of record”? We do not know, but if the order served up to us by Hariprasad and Haripal JJ is supposed to be an example of what “courts of record” do, then perhaps the learned NIA judge would be well-served by taking this gratuitous piece of advice to heart. But it is the second line that is truly mind-boggling. Hariprasad and Haripal JJ appear to believe that Supreme Court judges are not public servants who have sworn an oath to uphold the Constitution, but gods on high whose “names” lesser mortals like a mere NIA judge (and presumably, by extension, the rest of us who do not sit on “courts of record”) ought not to take. After all, who knows what would happen if all of us started taking the names of Supreme Court judges in vain? Plagues, perhaps, or frogs from the sky, or maybe we’d just vanish in a cloud of contempt-tinged smoke. All very unwholesome occurrences. But jokes apart, this needs to be called out for what it is: two High Court judges browbeating and bullying a subordinate judge for daring to do his job, while signalling a servile fealty to the Supreme Court. And that is how the worst of hierarchies work: admonishment to those below, obsequiousness to those above.

It would have been bad enough if paragraph 39 was the worst of it, but unfortunately, it does not even begin to scratch the surface. The NIA Court had granted bail to two men accused of offences under the UAPA. The case of the Prosecution was that these men had been found in possession of materials that promoted Maoist ideology and advocated the “liberation” of Jammu & Kashmir. What is notable about this case is that whereas in other UAPA cases, the Prosecution makes at least a token attempt to link the accused with actual terrorist activities, or tangible associations with a banned organisation (for example, collecting funds, or collecting arms), here the Prosecution’s case was actually only limited to the possession of Maoist literature and sloganeering, apart from accusations of “attending meetings” and preparing “cloth banners.”

The Supreme Court – the names of whose judges we cannot take – has laid down clear jurisprudence on this issue. “Membership” of a banned organisation – according to the Supreme Court – has to be understood as being limited to “active membership”, i.e., incitement to violence. If passive membership was also held to be a part of the UAPA, then its sections would be unconstitutionally broad, and would have to be struck down. Consequently, these judges – who shall remain nameless – have made clear that even at the prima facie stage – and notwithstanding Section 43(D)(5)’s high threshold for granting bail – it must at the very least be shown that if the Prosecution’s case was taken to be true, it would have to meet the threshold for active membership.

It is obvious that in the present case, taking the Prosecution’s own case at face value (as laid down in the Watali judgment), the offence of active membership had not been made out. However, in exhorting the learned NIA judge not to dare name Supreme Court judges, Hariprasad and Haripal JJ seemed to have simultaneously exempted themselves from studying Supreme Court judgments. While there are copious references to Watali on the issue of bail under the UAPA, Hariprasad and Haripal JJ seemed either oblivious of Supreme Court judgments on the scope of the UAPA offences, or – for reasons best known to themselves – decided that it is optional to engage with Supreme Court judgments that go in favour of individual liberty.

Not only are Hariprasad and Haripal JJ wrong on law, but their judgment also contains multiple leaps of logic. In para 23, they go from “the accused were in possession of CPI(Maoist) literature” to “the accused are protagonists” of the CPI(Maoist) – not so much a logical leap as a running long-jump over the Grand Canyon. In my house, I have a lot of literature written by winners of the Hugo Awards, and I do wish that ipso facto made me a winner of a Hugo Award. Unfortunately, that is not how the world works, something that most people are aware of (but not, it would appear, Hariprasad and Haripal JJ). Hariprasad and Haripal JJ then go on to cite evidence that the accused had a “rapport” with persons having “close links” with the banned organisation: note, not that the accused were part of a banned organisation, not that they had close links with a banned organisation, but that they had a “rapport” with “persons who had close links” with the banned organisation. Not only are we at opposite ends from the Supreme Court’s requirement of “active membership”, but we are at opposite ends from any respectable concept of causation in criminal law. Similarly, Hariprasad and Haripal JJ go on to refer to “ocular evidence” that the accused were attending “meetings” of the banned organisation – failing to recognise, yet again, the distinction between “active membership” and attendance at meetings.

If this were not disturbing enough, we now come to something profoundly alarming. In paragraph 26, Hariprasad and Haripal JJ state:

True, the prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint.

In short: you are guilty if there is evidence against you. But you are also guilty if there is no evidence against you, because that only shows how good you are at operating “surreptitiously”. The State always wins. At this stage we are in Stalinist show-trial territory. Hariprasad and Haripal JJ then go into how the accused made “photocopies” (!) of documents, how they perceived the State to be their “foes”, and how the documents referred to overt and covert comrades. Things then pass into surreal territory, where Hariprasad and Haripal JJ observe that one of the documents mentioned the dangers of phone hacking, that the accused did not have their phones with them when they were arrested, and that this shows that they were “following a diktat.” If Hariprasad and Haripal JJ had spent their free time studying judgments of the Supreme Court (whose judges, I must remind you, we cannot name) instead of reading The Day of the Jackal, this “court of record” may have produced a better judgment than something reading like Frederick Forsyth’s fevered dream.

Hariprasad and Haripal JJ then put the cherry on top of this concoction by stating that the accused were in possession of documents involving J&K that bear “the seeds of a secessionist ideology.” Much like the “if you play with embers” line in Safoora Zargar’s bail order and the J&K High Court’s invocation of King Menelaus, this is that part of the judgment where you can tell the Court is hiding behind metaphor and imagery because, deep down, the judges know that the law requires something different. What on earth does “seeds of a secessionist ideology” mean? Which law defines “seeds …. of an ideology”, secessionist or otherwise? We do not know, and we cannot know, because the Courts have long sacrificed rigorous legal reasoning at the altar of the crudest nationalist rhetoric.

Hariprasad and Haripal JJ then end with the ringing declamation of the line that has been music to the ears of tyrants and authoritarians at all times and places. “individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail.”

Ein volk, ein reich. Indeed.

These days, the “courts of record” (with a few honourable exceptions) appear to be in a race to become more pro-Executive than the Executive. Hariprasad and Haripal JJ’s effort has set the tone for 2021 in that respect, and will probably take some beating. But last year was full of surprises, and no doubt, soon enough, we will have a judgment where a judge will preside over a hearing but whose name will mysteriously vanish from the record, so that people actually can’t take his name.

Oh, wait. That already happened.

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

[This is a guest post by Nitika Khaitan.]


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

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

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

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

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

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

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

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

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

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

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

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


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

Imprisonment by Metaphor: The Safoora Zargar Bail Order

“… when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire.”

 

When a Court needs to rely upon metaphor instead of law to justify keeping an individual in prison, it is perhaps time for the justice system to take a long, hard look at itself. The Order passed today by a District and Sessions Judge at Patiala House, New Delhi, denying bail to Safoora Zargar, an accused in what has colloquially come to be known as the “Delhi riots case”, is a deeply disturbing one. It is disturbing because it takes the Unlawful Activities Prevention Act [“the UAPA”], a law so stringent that it precludes judges from granting bail if even a “prima facie” case is made out, and then stretches its provisions from one side, and the facts from the other, to ensure that the prima facie case is made out. In the process, what it effectively does – as we shall see – is criminalise the exercise of one set of constitutional rights (the freedom of speech and expression), and deny the exercise of another (personal liberty).

A close reading of the bail order reveals the following:

  1. Taking only the Prosecution’s case (as this was a bail hearing), there is evidence that there existed a “conspiracy” to block a road, which the accused was involved in (the role of the accused in this “conspiracy” – even prima facie – is not spelt out, only some WhatsApp messages and disclosure statements are referred to).
  2. That “one cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and such a magnitude that it would lead to disorderliness and disturbance of law and order at an unprecedented scale.” The Order does not clarify what “unprecedented scale” means. It does not clarify whether the “unprecedented scale” refers to the same “conspiracy” referred to in (1), or whether it refers to something else; if the latter, the Order does not clarify how the participation of the accused was deduced in that separate “conspiracy”; if the former, the Order does not clarify the link between the “conspiracy” to block the road and its “unprecedented scale”, in a country where blocking roads happens every second day.
  3. That although there was no evidence of the accused committing any act or making any speech that instigated violence, nonetheless, as there existed a “conspiracy”, nonetheless “when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire”, and that consequently, the “acts and inflammatory speeches of the co-conspirators are … admissible against the accused.” Now, it is unclear what the “acts” are, as the Order never mentions them; it is also unclear what the “inflammatory speeches” are, as the Order does not mention them either.

The lynchpin of the Order, therefore, is a prima facie finding of a “conspiracy”, in specific terms, to “block a road.” This conspiracy rose to an “unprecedented level” – we are not told how. But the fact that the accused is also – prima facie – one of the conspirators (regardless of specifics, because this remains a prima facie appraisal), meant that ipso facto the “acts and inflammatory speeches” (we are not told which) were attributable to her. It should be immediately clear that such an approach casts the net of criminality so wide, that just about anyone can be brought within its ambit. At the threshold level, it dispenses with the gravity requirement needed to trigger the UAPA, by failing conspicuously to specify how “blocking a road” reaches that threshold; at the more substantive level, upon a prima facie finding of a “conspiracy”, it dispenses with the need to show any causal connection between the accused and the events in question.

This would be problematic for acts (which the accused didn’t commit) as well, but when it comes to “inflammatory speeches” (which the accused didn’t give), it becomes even more problematic. This is because, recognising the problematic character of laws such as the UAPA which make the grant of bail effectively impossible, both the Supreme Court (in Arup Bhuyan, while examining the similarly-worded TADA) and the Bombay High Court (in the Kabir Kala Manch cases) have narrowly interpreted the substantive offence, limiting it to cases involving the incitement of violence. This is, indeed, nothing new: going back to the field of metaphors, as the Supreme Court held in S. Rangarajan, the proximity between speech and consequence needs to be like that of a “spark in a powder keg” for criminality to be imposed.

Now, the image of a “spark in a powder keg” suggests a relationship of immediacy and inevitability. The metaphor chosen by the Sessions Court on the other hand – that of playing with “embers” that the wind then “carries” is the exact opposite of a “spark in a powder keg”. The wind can carry embers as far, and in any direction, that the State or the judge might please; what this effectively does is do away with any causal requirement between speech-act and consequence. Such a doctrine, therefore, buries the fundamental right to free speech: if there is no need for a causal requirement between speech-act and consequence, anything can be criminalised, taking us directly into the territory of thought-crimes.

A reading of the Order, therefore, makes it clear that insofar as both the law and the facts stood in favour of bail, the Court got around the first barrier by replacing legal doctrine with a metaphor of its own invention, and vaulted the second barrier by replacing an accounting of the facts with a set of adjectives (“unprecedented scale” and “inflammatory speeches”) that spared it the necessity of an explanation. In this way, the law was stretched from one side, and the facts from the other, and they met in the middle to make out a prima facie UAPA case.

This prima facie case was then used to justify keeping a pregnant woman in an overcrowded prison in the middle of a nationwide pandemic. What that says about the state of the justice system is best left to the readers’ judgment.

Civil Rights at the High Courts: Sedition and Transgender Identity

This month has seen two important civil rights judgments come out of the High Courts. The Kerala High Court reaffirmed the narrow scope of sedition, while the Madras High Court reaffirmed the right of self-determining one’s gender identity. Neither judgment broke new ground; but affirming – and entrenching – existing jurisprudence is often equally important, especially in circumstances where the possibility of erosion is ever-present.

The Kerala High Court, Sedition, and the UAPA

In Union of India v Shameer and Ors, a group of men were convicted of sedition (along with other provisions under the IPC and the UAPA). The gravamen of the offence, according to the Prosecution, was that in 2006, the accused organised a meeting where seditious pamphlets (of the banned SIMI organisation) were distributed, and seditious speeches were made. Two of the accused had stated that:

Indian army are killing Muslims who are doing jihad in Kashmir. Other Muslims are being tortured with oppressive laws like TADA, NSA etc., against which all of us should fight under the leadership of SIMI.

Present India was made by Britishers. Earlier, we were ruled by Nizams and Mughals. We should go back to that Old India for which we should fight through SIMI and no one else can destroy SIMI.

On the basis of this, the NIA Court convicted five out of the seventeen accused, of both sedition as well as membership of a banned organisation [SIMI] under the UAPA, and acquitted the rest. Both the convicted men, as well as the State, appealed. The Kerala High Court began by noting that if at all anyone had committed an offence, it was the two speakers – Accused No. 2 and 3. There was no evidence to demonstrate a larger conspiracy involving the people who had booked the hall, and therefore, at the threshold, the other convictions could not stand.

What this left, it will be seen, was a pure speech offence: the convictions of accused nos. 2 and 3 were purely on the basis of what they had said at the meeting. In this context, the bench of Shaffique and Menon JJ. held, reading S. 124A narrowly, that the offence of sedition had not been made out because the speech did not target the government established by law in India. The Court read the references to the Nizam and to the Mughals as expressing discontent with the way that India was governed, but that this, in itself, did not rise to the level of sedition. On the question of the UAPA, the Court held, following Arup Bhuyan, that the mere fact of holding a meeting – and even clapping and applauding through it – did not constitute the offence of “membership” of a terrorist organisation.

The High Court’s narrow reading of the substantive part of the definition – of both sedition and the UAPA – is welcome. Indeed, there has been very little judicial analysis of what, precisely, “government established by law” means in the context of S. 124A, and the High Court’s narrow interpretation does well by Article 19(1)(a) of the Constitution. To this we can add one further point: even if the Court had found, in this case, that the speech in question was against the “government established by law” (S. 124A), and that the accused did come to the meeting with the intention of “propagating SIMI ideology”, it would still not constitute either the offence of sedition, or of membership under S. 10 UAPA. After Shreya Singhal and Arup Bhuyan, it is clear beyond cavil that the appropriate legal standard to apply in these cases is that of “incitement to violence”; mere speech – including advocacy of revolutionary ideas – does not make out either offence. In this case, the High Court did not need to address that issue because of its findings on the content of the speeches, as well as on the nature of the meeting, but we should not lose sight of that larger point.

The Madras High Court and Transgender Identity 

Meanwhile, in Arunkumar & Sreeja v The Inspector-General of Registration, the High Court of Madras was called upon to decide whether a marriage between a man and a transwoman could be validly solemnised under the Hindu Marriage Act. G.R. Swaminathan J. held that it could, correctly noting that “by holding so, this Court is not breaking any new ground. It is merely stating the obvious.”

The dispute arose when the Registrar of Marriages refused to register the marriage, on the basis that Sreeja, as a transwoman, did not count as a “bride” within the meaning of the Hindu Marriage Act, as the scope of that expression was limited to “woman”. The Madras High Court held, however, that the Registrar’s actions were contrary to the ruling in NALSA v Union of India (subsequently upheld in Puttaswamy and Navtej Johar); at the heart of the NALSA ruling was the principle of self-determination as to gender identity. Consequently:

… the second petitioner herein has chosen to express her gender identity as a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination. (paragraph 9)

In view of this, Swaminathan J. held, the word “bride” in the Hindu Marriage Act had to be interpreted with the times, and in light of the principle of self-determination of gender identity.

It would … include an intersex person/transgender person who identifies herself as a woman. The only consideration is how a person perceives herself. (paragraph 15)

Interestingly, the Court then also went on to note the existence of multiple genders beyond the male/female binary, as well as going on to ban sex re-assignment surgery for minors (i.e., below the age of consent). As the Court noted:

A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned. (paragraph 24)

 

There are a few important points to be noted about this judgment. This is perhaps the first time after NALSA that a Court has interpreted existing legislation in order to bring it line with the principle of self-determination of gender identity. It is, therefore, a landmark moment where the NALSA dictum has finally been given some kind of teeth, and a precedent has been set for future disputes involving the need for updating our existing laws that remain stuck within the male/female binary. This judgment constitutes the blueprint for doing so. Secondly, it is a judgment that moves beyond the rhetoric of self-determination of gender identity, and applies it to a situation where real consequences follow from that recognition (in this case, the right to marry). Of course, unlike affirmative action, marriage is not a situation involving identity-targeted distribution of scarce benefits; it is, therefore, a relatively easy case in which to affirm the principle of self-determination (it remains to be seen how the courts will navigate situations where distribution of scarce benefits does turn upon gender identification).

Perhaps most importantly, however, by placing the self-determination of gender identity – as well as the choice to opt out of the gender binary – upon a constitutional pedestal, Swaminathan J.’s judgment casts serious doubt upon the constitutional validity of the much-criticised Transgender Bill. Recall that that bill denies rejects self-determination of gender identity, as well as maintaining the gender binary and denying the primacy of choice. With the Madras High Court’s judgment, however, locating both these principles within Part III of the Constitution, it is evident that in its exiting form, the Transgender Bill will fail constitutional scrutiny.

Conclusion

The last few years have seen an unfortunate, top-heavy shift towards the Supreme Court, when it comes to constitutional cases. This has led to a gradual erosion of the High Courts as important forums for developing and articulating important constitutional principles. While I believe this has been a mistake, there does remain an important task for the High Courts, even under status quo: and that is to ensure that constitutional principles are entrenched through repeated and consistent application. Without that, Supreme Court pronouncements remain mere words, and can be very swiftly eroded or forgotten. And this is why the judgments of the High Courts of Kerala and Madras are significant additions to the struggle for a progressive civil rights jurisprudence in India.

Guest Post: The UAPA – some interpretive issues

(This is a guest post by Sharanya Shivaraman.)

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

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

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

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

Looking into the Legislative intention:

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

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

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

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

Literal interpretation and violation of Fundamental Rights:

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

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

Strict interpretation of penal statutes and principle of ejusdem generis:

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

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

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

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

Contemporary application of UAPA:

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

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

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

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

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

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

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