Deconstructing a draconian law

The Delhi High Court verdict directing the release of three student leaders is significant as it has analysed certain harsh provisions in the UAPA with a sense of legal realism, at a time when state-induced suffering has become the order of the day.

Students outside Tihar Jail in New Delhi on June 17, awaiting the release of Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita.

“Bail is a constitutional recognitionof the presumption of innocence,” said Justice Siddarth Mridul in the CAN Foundation webinar, while addressing the issue of personal liberty in India ( Bar and Bench , January 21, 2021). It was the Delhi High Court Bench consisting of Justices Mridul and Jairam Bhambhani that delivered the landmark verdict on June 15, 2021, by which student leaders Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita were directed to be released on bail. Constitutionally guaranteed freedom is an imperative. This is a cardinal principle underlying the working of any democracy. Every judge in the country at all levels, from the trial court to the top court, is supposed to adhere to this postulate. The Delhi High Court did what it was supposed to do.

But freedom is no longer taken for granted. The ecstasy on the release of the students must not distract us from the truth of the situation where we have accepted that state-induced suffering is the order of the day. Call for liberty, however, has been taken sometimes as judicial romanticism, given the draconian nature of certain enactments and provisions. The Unlawful Activities (Prevention) Act (UAPA) does not hold any kind of presumption of innocence. On the other hand, it poses a presumption of guilt. Therefore, Section 43(D)(5) of the Act inter alia says the person accused under the Act “shall not be released on bail or on his own bond if the court …is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” The Delhi High Court has deconstructed the harsh law since it is convenient for any authoritarian state to level accusations against its political opponents, as part of a witch-hunt. A significant character of the Narendra Modi-II regime is that it attacks intellectuals and activists who are not part of the established opposition, to create an atmosphere of fear. It haunts youngsters like Disha Ravi or Amulya Leona Noronha and elders like Stan Swamy, invoking the provisions of either the Indian Penal Code (IPC) or special laws such as the UAPA. In an earlier essay, Thulasi K. Raj and this writer have explained how the UAPA becomes a tool of oppression for an illiberal state (“Crushing free spirit”, Frontline , April 19, 2021).

The significance of the Delhi High Court verdict is that it tries to analyse the law with a great sense of legal realism. When an enactment permits a time period up to 180 days for filing the charge sheet (instead of 90 days as per the Code of Criminal Procedure, or CrPC) and allows detention of a person essentially on the basis of a false tag of terrorism, it is an imperative process that the bail court is bound to undertake. It needs to analyse the allegations in the charge sheet and see if they make out the offences as defined under the enactments. Solicitor General Tushar Mehta argued before the Supreme Court that the High Court had “turned the UAPA on its head”.

The Delhi High Court has examined the charge sheet to see whether there is a prima facie case built under Sections 15, 17 and 18 of the UAPA, which talk about the offences, to satisfy the requirement of Section 43 D(5) of the UAPA. Section 15 defines a terrorist act, Section 17 is about punishment for raising funds for a terrorist act, and Section 18 is about punishment for conspiracy, and so on. According to Section 43D(5), before granting bail the court should satisfy itself whether the accusation is prima facie true or not. When the statute demands the court to do this exercise, the state cannot find fault with the court for doing that exercise for the sole reason that the outcome of that exercise is not in favour of the state. If the enactment has the inherent tendency to persuade the judge to do an act resembling a miniature trial, even while considering the question of bail, it is no longer an issue with the court but with the very enactment. Therefore, the lamentation of the Solicitor General that the Delhi High Court practically pronounced an order of acquittal is an argument against the enactment itself rather than the orders of the Delhi High Court. If the High Court chose to grant bail by way of a cryptic order, the Centre would have alleged non-compliance with Section 43 D (5), in the Supreme Court.

Police behaviour

The Delhi episode is a classic case that exposes the way in which the regime stifles dissidents. Justice Madan B. Lokur, former judge of the Supreme Court, has openly criticised the Delhi Police for the way in which they dealt with the three students ( The Telegraph , June 24, 2021). Whenever they were about to get bail, the police would book them for some other offence. Thereafter, the police explicitly misused the provision, that is, the proviso to Section 43D(2) in the UAPA, and often breached the limited right of the accused to get a copy of the charge sheet and to understand the allegations. It was on September 17, 2020, that the trial judge directed the Delhi Police to hand over the copy of the charge sheet. Instead of the hard copy of the charge sheet, the students were given only pen drives, which they were unable to open and read as they were in jail. Prosecution said the charge sheets ran into thousands of pages and, therefore, it was expensive to get a physical copy that could be given to the accused. The Delhi Police justified the delay saying that the government will have to sanction funds to meet the expenditure to make photocopies. It was in this context that Justice Lokur wondered in an interview to The Telegraph whether there were no financial hurdles to meeting the train and air fares to travel to Bengaluru to arrest the climate activist Disha Ravi (and move her to Delhi subsequently).

The Division Bench of the Delhi High Court had examined the entire background of the case. It said in one of the orders that “mere use of alarming and hyperbolic verbiage” in the charge sheet could not make out offences under the UAPA. The court said: “Allegations relating to inflammatory speeches, organising of chakka jaam , instigating women to protest and to stockpile various articles and other similar allegations, in our view, at worst, are evidence that the appellant participated in organising protests, but we can discern no specific or particularised allegation, much less any material to bear out the allegation, that the appellant incited violence, what to talk of committing a terrorist act or a conspiracy or act preparatory to the commission of a terrorist act as understood in the UAPA.” More importantly, the court warned against “fostering extremely grave and serious penal provisions” on citizens, observing that such a course would “only trivialise” the provisions.

True that after the Supreme Court’s June 22 order, the Delhi High Court verdict loses precedential impact, at least for the time being. This, however, does not take away the message that it carries. When there are embargos or legal limits on granting bail or anticipatory bail under a particular enactment, it is an imperative for the court to see if the allegations make out any offence under the provisions. If they do not, bail could be granted.

Statutory contexts

This legal position is well settled in different statutory contexts. For example, Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the S.C./S.T. Act), says that courts cannot grant anticipatory bail to any accused who is booked under this statute. The Supreme Court, taking note of this provision, warned that “a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the S.C./S.T. Act has been prima facie made out” ( Vilas Pandurang Pawar and others vs State of Maharashtra and others; 2012). The same position was reiterated in Union of India vs State of Maharashtra (2019) where the apex court said that “the bar created under Section 18 (of the S.C./S.T. Act) on the grant of anticipatory bail is not attracted when there is “misuse of provisions of the Act.”

Take another instance: The Muslim Women (Protection of Rights on Marriage) Act, 2019, the law brought by the Bharatiya Janata Party (BJP)-led government at the Centre that criminalises instant triple talaq, contains a somewhat analogous provision. Section 7 (c) of this enactment says no person accused of offences under this Act shall be released on bail, unless the magistrate “is satisfied that there are reasonable grounds for granting bail to such person”. A bench led by Justice D.Y. Chandrachud interpreted the rider under Section 7 (c) and said, “This substantiative condition is only a recognition of something which is implicit in the judicial power to grant bail.” The court added: “The substantive condition in Clause (c) (of Section 7) does not deprive the court of its power to grant bail.” The court emphasised that the Section did not postulate inapplicability of Section 438 of the CrPc, which grants the competent court the power to grant anticipatory bail ( Rahna Jalal vs State of Kerala ; 2020).

It is not to suggest that the restriction against granting bail in these enactments are in the same manner. In the S.C./S.T. Act, it is stricter, when compared with the penal legislation on triple talaq. This has been noted in Rahna Jalal . The irresistible conclusion is that the bail court should exercise its discretion fairly, objectively, and judiciously even when the accused are booked under a stringent statute such as the UAPA. This is what the Delhi High Court has done with an elaborate judgment.

These decisions of the apex court also show the way out for a country that is suppressed by an aggrandising executive that constantly invokes “ the terror of laws ” ( Frontline, April 9, 2021).

However, despite these judgments, the top court was unable to act in many instances where it was supposed to act. This led to continued incarceration of many, including the accused in the Bhima Koregaon case. One of the exceptions, however, was the stay order against the coercive steps against two Telugu channels. It said that certain Sections in the IPC, Section 124 A (sedition), Section 153 A (promoting enmity in society) and Section 505 (statements conducing to public mischief), would need a revisit “particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation” ( Live law, May 31, 2021).

The Delhi High Court verdict has a great educative value for institutions. The top court is considering the challenge against certain amendments made to the UAPA in 2019 (Live Law , September 6, 2019). The court has already admitted challenges against Section 124A of the IPC, an equally misused provision ( Kishorechandra Wangkhemcha and another vs Union of India , order dated April 30, 2021). Sooner or later, the apex court may have to strike down these draconian enactments on ostensible sounds. But until then, the courts in India dealing with citizen’s liberty must act prudently, fairly, and democratically. Viewed in this way every court, including the trial court, is performing the duties of safeguarding the constitutional rights. The legal and political fraternity need to re-educate the judicial institutions and the individuals running them.

Kaleeswaram Raj is a lawyer at the Supreme Court of India.