SAHRDC Backgrounder[1] 10 August 2021
On 15 June 2021, a two judge bench of the Delhi High Court composed of Justices Siddharth Mridul and Anup Jairam Bhambani issued orders granting bail to three student activists charged under the Unlawful Activities (Prevention) Act (UAPA). The students – Ms Natasha Narwal, Ms Devangana Kalita, both members of Pinjra Tod[2], a Delhi women’s rights organization and Mr Asif Iqbal Tanha[3], had been charged under UAPA for “instigat[ing] the local population in certain Muslim dominated areas of Delhi, particularly women, and incit[ing] in them feelings of persecution, which subsequently led to violence and rioting”.[4]
The bail orders of the three student activists constituted one of the most significant rulings by a high court granting bail to individuals charged under UAPA. While maintaining that the bail orders were not to be viewed as precedent, and thus agreeing to technically stay them, the Supreme Court of India nevertheless declined to apply the stay to the three student activists,[5] effectively approving their bail.
Though the tout court constitutionality of the bail orders are awaiting more thorough review by the Supreme Court, an examination of the Delhi High Court’s decision outlining the Justices’ reasons for granting bail to the students, read together with rulings from various other courts, presents an opportunity to delve with more depth into what is unlawful even if, as of now, not yet illegal about the UAPA. Additionally, the Delhi High Court’s bail orders, if sustained by the Supreme Court as precedence, may provide remarkable guidance on how to go about establishing a compensatory jurisprudence to compensate individuals unlawfully detained for long stretches of time under UAPA.
Distinguishing Dissent from Terrorism
Introduced in 1967 as a law to ostensibly respond to situations that assailed the “integrity and sovereignty of India”, not the least of which were separatist movements in Jammu & Kashmir, Nagaland, and Mizoram, UAPA has since then undergone several amendments that have expanded its scope. Shifting from a law whose core was effectively the “defence of India”, the UAPA has, since its 2004 amendment, when the language of “terrorist activities and … matters connected therewith”[6] was added to its preamble, been misused by the state to quell peaceful protest and dissent.
In 2019, the Bharatiya Janata Party (BJP)[7] dominated Lok Sabha, the lower house of the Indian Parliament, passed a bill to amend the UAPA. Section 15 of the 2019 act, loosely defining what constitutes a “terrorist act”, provided a broad basis for the government to designate various individuals opposed to some of its activities, from intellectuals decrying the stealing of Adivasi[8] land, to indigenous rights activists fighting to keep their land, as terrorists. Sections 17 and 18, detailing the punishments for raising funds for “terrorist activities”, and for “conspiring to implement a terrorist plan”, respectively, enabled the government to detain suspected “terrorists” without so much as a trial, let alone a conviction.
Thus in 2020 and 2021 alone, individuals have been arrested for leading funeral prayers[9], for possessing “anti-national” banners,[10] for issuing “provocative” sermons,[11] for playing cricket in honour of a dead “militant”,[12] for “glorifying militancy”[13] while resisting arrest, and other such either overtly ridiculous or otherwise blandly non-specific charges.
The Delhi High Court ruling presents a refreshing reprieve against the breadth of Section 15’s definition. Terrorism, the court said in Tanha’s bail order, is distinct from most other offenses, regardless of how “grave, egregious or heinous” those other offenses are.[14] The definition of a terrorist act, the Court insisted, must “partake of the essential character of terrorism”.[15]
Referring to the Supreme Court’s ruling in People’s Union for Civil Liberties v. Union of India & Others,[16] The Delhi High Court stated that a terrorist act was one whose implications were “inter-state, international or cross-border in character… a challenge to the whole nation and invisible force of Indianness that binds this great nation together…”.[17] “In its anxiety to suppress dissent”, The Delhi High Court wrote, the state had blurred the line “between the constitutionally guaranteed right to protest and terrorist activity”.[18]
The Delhi High Court’s ruling is important in defining who the state can term a terrorist. Dissidents, protesters, and those otherwise exercising civil disobedience, the Delhi High Court makes clear, ought not be charged under UAPA because the activities they engage in, no matter how unpalatable to the state, are not acts of terrorism.
Further, the Delhi High Court sees the state’s casual invocation of UAPA charges in order to suppress dissent as threatening to “democracy” itself. India’s foundations, the Delhi High Court notes, “stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a university situated in the heart of Delhi”.[19] To charge such people under UAPA is, per the Delhi High Court, to take the seriousness out of the act; an act meant to combat actual terrorism.
Eliminating “Punishment by Procedure”
Section 43 D (5) of the Indian Penal Code, inserted by Act 38 of 2008, provides that an accused person “shall not be released on bail or on [his] own bond if the court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true”[20].
Technically, 43 D (5) ought to constitute a burden of proof standard, even if a light one: the prosecution has to prima facie prove to the court that the accused is guilty of whatever they are charged with. In reality, however, the standard usually merely constitutes a burden of production: the prosecution, in many UAPA cases, has only to present accusations in the First Information Report (FIR) alleging that the accused committed the crime(s) they’re accused of. Moreover, the defense is generally not allowed to present its side, as to do so would purportedly be to turn a bail hearing into a trial.
Thus, 43 D(5) often forces courts to take the prosecution at their word, not allowing courts to investigate with any reasonable depth whether the charges put forth by the prosecution are fabricated or, until the Delhi High Court bail hearings, even unspecific and exaggerated. This prosecutorially deferent standard was set by the Supreme Court ruling in National Investigation Agency v. Zahoor Ahmad Shah Watali [21]. Watali provided that bail under Section 43 D(5) could be denied by relying upon the chargesheet and the FIR alone, even if the allegations in these documents would be inadmissible as evidence during the trial[22].
43 D(5) has resulted in police presenting trumped-up charges, or charges too general – as, for example, “implicating national security”, in a bid to get courts to deny bail to accused persons. Mohammed Irfan, for instance, spent nine years in jail without any evidence of his guilt having ever been presented by the National Investigative Agency (NIA). Though granted bail by the Bombay High Court, Irfan’s bail orders were later reversed by the Supreme Court, based on a submission by the NIA that “there [wa]s likelihood of recurrence of commission of offence which might affect the security of the nation”.[23] Similarly, Bashir Ahmad Baba spent eleven years in jail before being acquitted. The accusation against him, brought under UAPA, was that he had been in contact with a leader of the terrorist group Hizbul Mujahideen.[24] In the case of the Bhima Koregaon 16, the most noted of whom was the late Father Stan Swamy, pro Adivasi intellectuals have been denied bail on nebulous, unsubstantiated charges such as “conspiracy to assassinate the Prime Minister”, “giving provocative presentations and speeches” and “anti-national activity”.[25]
What this denial of bail and continued detention without evidence constitutes is what has been termed “punishment by procedure”. Charged under UAPA and thus denied bail, accused persons languish in jail for as many as 12 years. There, they suffer various indignities, like Father Stan who, suffering from Parkinson’s disease, was denied a sipper to help him drink water[26]. Others lose family members and are unable to attend their funerals, as is the case of Habib Mia, a man from Tripura held in detention for four years with no specific charges having been filed against him nor any evidence produced[27]. And yet others, like Father Stan, again, die in prison, with no substantive charges ever being brought against them[28]. The fact that only roughly 2.2% of UAPA cases between 2016 and 2019 resulted in convictions[29] elucidates how detention under UAPA constitutes punishment by procedure rather than any actual quest for justice by the state.
In Natasha Narwal’s bail order, the Delhi High Court took note of this “punishment by procedure” tactic, employed through charging people under UAPA, and curtailed the prosecution’s ability to employ it. Noting that there was “no specific, definite, or particularised act […] attributed to her (Narwal), apart from the admitted fact that she engaged herself in organizing anti-CAA and anti-NRA protests”, the court set what the normative standard for bail denial under UAPA ought be. In Asif Tanha’s bail order, The Court noted that there was, in the chargesheet, a “complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence…”[30].
The Delhi High Court thus determined that just as the Watali ruling barred it from considering evidence that could prove the accused not guilty, so too Watali restrained it from deriving inferences from the bare allegations of the prosecution. Organizing anti-CAA protests and anti-NRA protests; belonging to WhatsApp groups planning said protests; the court’s ruling states, cannot be inferred to constitute “terrorism” unless specific charges substantiating the same are put forth.
The Delhi High Court furthermore recognized the police’s “wanton use of serious penal provisions” that “only trivialise[d] them”[31]. Many of the charges brought against accused people under UAPA were only brought under that statute because of its capacity to punish through procedure. The allegations that the Chakka jaam (road and highway blockade) organized by Kalita, Narwal and Tanha turned violent, for example, the court noted in Tanha’s bail order, were not specific enough to substantiate that Tanha incited violence, let alone engaged in terrorism.[32]
Hearkening to a Supreme Court ruling affirming the Kerala High Court’s judgement to grant bail to a man accused of coordinating an attack against a professor, the Delhi High Court noted its opposition to the kind of indefinite imprisonment called for by UAPA charges. In that ruling, K.A. Najeeb vs. Union of India,[33] The Supreme Court had held that accused persons charged under UAPA could be granted bail if their right to a speedy trial had been abrogated.
The Delhi High Court took the Najeeb ruling to its logical extension in deciding the Tanha bail grant case. Noting that there were 740 prosecution witnesses waiting to be deposed in the Tanha case, and acknowledging the amount of time such depositions would take, the Delhi High Court remarked that such a time frame would effectively mean that the accused’s right to a speedy trial was violated, thereby contravening Najeeb. The Court stated that Najeeb’s dictate did not require it to “wait until the appellant has languished in prison for a long enough time to be able to see that it [will] be impossible to complete the deposition of 740 prosecution witnesses in any foreseeable future, especially in view of the prevailing pandemic when all proceedings in the trial are effectively stalled”[34].
Foresight, therefore, the court stated, was necessary in preventing the expected violation of the accused’s right to a speedy trial guaranteed by Article 21 of the Indian constitution. This, again, was the Delhi High Court’s way of deeming punishment by procedure unlawful.
The Point of Bail
In its discussion of the general principles of bail, the Delhi High Court enunciated what it viewed as the object of bail: that it was “neither punitive nor preventative, but principally [meant] to secure the presence of the accused at the trial… that punishment beg[ins] only after conviction and that everyone is deemed to be innocent until duly tried and found guilty”[35]. The most important thing about bail, the Delhi High Court clarified, was the “necessity to secure the attendance of the accused at trial”[36].
In granting Tanha’s bail, the Delhi High Court noted that seeing as Tanha had already been admitted to bail in a previous, related case[37], there was “no material or basis to suspect, nor [wa]s there any reasonable apprehension that the appellant w[ould] tamper with evidence or intimidate witnesses”[38]. The same reasoning held for why Tanha was unlikely to abscond. “The gravity of the offense”, were Tanha and co-accused to be found guilty, the court noted, “would beget the length of the sentence … awarded upon conclusion of trial”[39]. Thus even here, in cases implicating UAPA, the Delhi High Court insisted that the maxim of “Innocent until proven guilty” operated. The default is bail, not jail.
Right to Compensation
Though India is a signatory to the International Convention on Civil and Political Rights (ICCPR)[40], it acceded to the convention with some reservations – euphemistically termed “declarations”. One such declaration regarded Article 9 (5) of the ICCPR charter: that the victims of unlawful arrest would have an enforceable right to compensation.
Within the country’s internal jurisprudence, only Articles 21 and 22 of the Indian Constitution have been interpreted by the Supreme Court as providing a right to state compensation. In Rudul Sah v. State of Bihar & Ors[41], for example, the Supreme Court ordered the state government of Bihar to compensate a man who’d been illegally detained for 14 years. Interpreting Article 21’s constitutional power to “guarantee life and liberty”, and Article 32 as permitting The Court to grant compensatory relief under a habeas corpus petition, The Court ordered that the state monetarily compensate Mr. Sah.[42]
Yet crucially, though Article 22 protects against arrests and detentions, it does not do so in “certain cases”. Notably, clause 7 subclause (a) provides for situations where parliament may delineate circumstances requiring that a person be detained for more than three months. Such a provision overrides clause 4’s requirement that detentions be kept to a maximum of three months. UAPA undoubtedly falls under these “certain cases”[43], and no doubt the parliamentary amendments that the Act has undergone, and the BJP government’s wanton abuse of UAPA, have been in exploitation of this constitutional loophole.
Moreover, The UAPA lacks explicit deterrent mechanisms, leaving officers and the state to abuse it as they please. This is unalike an earlier Act, which had deliberately put in place mechanisms to prevent officers and the state from abusing them. Section 58 of the now lapsed 2002’s Prevention of Terrorism Act (POTA), for instance, provided not only compensatory recourse for wrongly accused persons, but also held officers who abused the mandates of the act liable. “Any police officer who exercises powers corruptly or maliciously, knowing that there are no reasonable grounds for proceeding under this Act”, the section held, “shall be punishable with imprisonment which may extend to two years, or with fine, or with both”.[44]
However, the Delhi High Court’s ruling, if upheld and extended, may signal the beginning of a more robust compensatory jurisprudence for UAPA victims. The Delhi High Court’s strong emphasis on establishing a firm distinction between “terrorist” activities and what ought otherwise be seen as dissent or protest may provide individuals with recourse for relief under Articles 21 and 22. Though UAPA would still retain its “certain cases” standard that warrants the invocation of 22 7(a), were the Delhi High Court Ruling to become precedence, courts would disallow UAPA charges unless the charges were specific and actually involved terrorism, not merely dissent or protest. Doing so would curtail the reach of UAPA – and by extension the state’s ability to deploy it as a weapon.
Those charged unfairly under UAPA and kept in detention would then have recourse to sue under Articles 21 and 22. Moreover, courts, by granting bail in cases of dissent or protest cloaked as “terrorism”, and thus by ensuring that unlawful detention under UAPA does not occur in the first place, would effectively render moot the need for a compensation scheme.
Finally, a compensatory jurisprudence would provide a strong incentive for the state not to abuse the UAPA, as it has done so far. The knowledge that the state would be financially responsible for compensating individuals wrongly detained under UAPA would make the state less eager to deploy UAPA as a weapon to merely suppress dissent or protest.
Conclusion
That UAPA has been unlawfully used by the Indian state to curtail dissent and protest under the guise of fighting terrorism has been clear for a long time. But the deference courts have given to the government thus far has meant that the UAPA’s misuse has had very few sustained legal challenges. The rulings of the Delhi High Court in the bail cases of the three student activists present a refreshing divergence from the judicial deference that the state has so far enjoyed. More importantly, the Delhi High Court orders provide robust, fleshed-out reasoning for the unconstitutionality of how the state deploys the UAPA. In doing so, the orders not only carefully delineate the grounds on which UAPA can eventually be curtailed, ensuring that the constitutional rights of defendants against unlawful detention are respected, they also articulate the possibility for the development of a compensatory jurisprudence to recompense those unjustly incarcerated.
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[1] SAHRDC acknowledges with thanks the useful comments received on the draft from Mr. Mihir Desai, senior counsel in the High Court of Bombay and Supreme Court of India.
[2] Literally translates to “ Break the cage”
[3] Tanha is not part of Pinjra Tod)
[4] Devangana Kalita v. State of Delhi NCT, Paragraph 5, CRL.A..90/2021
[5] SC Says Delhi HC’s UAPA Bail Order Won’t Have Precedent Value, but Protects Activists’ Freedom. https://thewire.in/law/supreme-court-uapa-bail-delhi-hc-narwal-kalita-tanha
[6] See, The Unlawful Activities (Prevention) Amendment Act, 2004. No. 29 of 2004. https://www.mha.gov.in/sites/default/files/2004-310320154_0.pdf.
See also, Asif Iqbal Tanha v. State of NCT of Delhi, Paragraphs 7 – 13, CRL.A. 39/2021 (discussing the implications of the 2004 amendment)
[7] The right wing Hindu fundamentalist ruling party.
[8] Tribal and Indigenous peoples
[9] Sudden Arrests, No Information: J&K Residents Learn About UAPA the Hard Way. The Wire. 04/20/2021. https://thewire.in/rights/jammu-and-kashmir-uapa-arrests
[10] Arrest of a 15-Year-Old Under UAPA in J&K Shows the Govt’s Insecurity. The Wire. 06/04/2021. https://thewire.in/rights/kashmir-uapa-15-year-old-arrest
[11] Shabir Ibn Yusuf. 2 Booked for Delivering Provocative Speeches. Greater Kashmir. 03/02/2020. https://www.greaterkashmir.com/news/front-page-2/2-booked-for-delivering-provocative-speeches/
[12] Azaan Javaid. 10 Kashmiri Youths Booked under UAPA for Playing Cricket Match ‘in Memory of Slain Militant’. The Print. 09/03/2020. https://theprint.in/india/10-kashmiri-youths-booked-under-uapa-for-playing-cricket-match-in-memory-of-slain-militant/495319/
[13] Jehangir Ali. Kashmir Belongs to Us,’ Woman Cop in Viral Clip Booked Under UAPA. https://www.thequint.com/news/hot-news/jk-cops-defend-dismissal-of-former-spo-slapped-with-uapa#read-more
[14] Asif Iqbal Tanha v. State of Delhi, 39/2021. Paragraph 57
[15] Supra 9, Paragraph 54
[16] (2003) 2 SCR 1136
[17] Supra 9, Paragraph 9
[18] Natasha Narwal v. State of Delhi NCT, 82/2021. Paragraph 36
[19] Supra 9, Paragraph 58 subsection i.
[20] See, National Investigation Agency vs Zahoor Ahmad Shah Watali, 578/2019, Paragraph 16 (quoting and interpreting the Indian Penal Code)
[21] Id
[22] See Watali, Supra 15, Paragraph 44 (Discussing Section 21 (4) of the Maharashtra Control of Organised Crime Act – MCOCA.)
[23] Business Standard. SC stays HC order granting bail to suspected LeT operative. 12/3/2019.. https://www.business-standard.com/article/pti-stories/sc-stays-hc-order-granting-bail-to-suspected-let-operative-119120300851_1.html
[24] Kashmir man acquitted of UAPA charge after 11 years in Gujarat jail, returns home. https://scroll.in/latest/998987/kashmir-man-acquitted-of-uapa-charge-after-11-years-in-gujarat-jail-returns-home
[25] American Bar Association Center for Human Rights. Preliminary Report: Arrest of Indian Attorneys and Activists in Apparent Retaliation for Human Rights Work (October 2019). https://www.americanbar.org/content/dam/aba/administrative/human_rights/JD/Asia/preliminary-report-india-bhima-koregaon.pdf
[26] The Indian Express. Stan Swamy, 83, waits as the buck is passed on his sipper and straw. 7/19/2021. https://indianexpress.com/article/india/stan-swamy-sipper-and-straw-nia-uapa-elgar-parishad-7071253/
[27] Hindutva Watch. “My Father Died Hearing Allegations Against Me:” Tripura Muslim Man Acquitted After 4 Years In Jail In Terror Case. 7/1/2021. https://hindutvawatch.org/my-father-died-hearing-allegations-against-me-tripura-muslim-man-acquitted-after-4-years-in-jail-in-terror-case/
[28] Stan Swamy: India outrage over death of jailed activist. BBC News. 7/7/ 2021. https://www.bbc.com/news/world-asia-india-57718361
[29] See, National Herald: Rate of Conviction lower than 2% in UAPA cases between 2015-19. https://www.nationalheraldindia.com/india/rate-of-conviction-lower-than-2-in-uapa-cases-between-2015-19-ncrb
See also, National Crime Records Bureau . Crime in India Table Contexts. https://ncrb.gov.in/en/crime-in-india-table-addtional-table-and-chapter-contents?field_date_value%5Bvalue%5D%5Byear%5D=2019&field_select_table_title_of_crim_value=36&items_per_page=100
[30] Supra 9, Paragraph 66
[31] Id
[32] Supra 9, Paragraph 35
[33] (2021) 3 SCC 713
[34] Supra 9, Paragraph 67
[35] Supra 13, Paragraph 31
[36] Id
[37] Sessions Court Case, First Information Report (FIR) No. 298/2019
[38] Supra 9, Paragraph 78
[39] Id
[40] A multilateral treaty adopted by the United Nations General Assembly in 1966, the ICCPR is an extension of the international Bill of Rights. The ICCPR provides a list of rights to be guaranteed by all its state signatories, and the measures to be taken to ensure that those rights are guaranteed.
[41] 1983 SCR (3) 508
[42] Id, Headnote
[43] Indeed, the initial timeline provided to police to investigate UAPA cases is 180 days, double the usual timeline provided under the Criminal Penal Code.
[44] POTA was allowed to lapse in 2004 due to public outcry over its gross misuse.