The judgment of the Delhi High Court granting bail to activists Devangana Kalita , Natasha Narwal , and Asif Iqbal Tanha — they have been in jail for over a year (without trial) for their alleged role in the 2020 Delhi riots — is significant for many reasons. Most importantly, it brings to a close many months of jail time for three people who are yet to be proven guilty of any crime, something that should be anathema to any civilised justice system. What is also significant, however, is that the judgment represents an important judicial pushback to the authoritarian legal regime under the Unlawful Activities (Prevention) Act (UAPA) .
The root of the issue
Ostensibly designed to check and address terrorism, the UAPA is perhaps one of the most abused laws in India today. The root of the problem lies in Section 43(D)(5) of this Act , which prevents the release of any accused person on bail if, on a perusal of the case diary, or the report made under Section 173 of the Code Of Criminal Procedure, the court is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”.
It is important to break this down. Broadly speaking, India follows the adversarial system of criminal justice, where two sides to a dispute attempt to persuade the court that their version of events is true. At the heart of the adversarial system of justice is the testing of evidence through cross-examination. Each side is afforded the opportunity to scrutinise, challenge, and question the evidence produced by its opponent; and the best way for a judge to unearth the truth — or the closest approximation of it — is to consider which side’s evidence is left standing, and appears more persuasive, after the rigours of cross-examination.
Production of evidence, and cross-examination, involves witnesses, recoveries of incriminating objects, tests of handwriting or voice samples, and many other elements. It constitutes the bulk of a criminal trial. In India, with our overburdened courts and creaking justice system, criminal trials take years. In high-profile cases such as the Delhi riots case, where the record is bulky, and the witnesses number in their hundreds, trials can take many years — even a decade or more.
Importance of bail
For this reason, bail becomes of utmost importance. If an individual is not able to secure bail from the courts, they will languish as under-trials in prison, for the duration of the case, no matter how many years it takes (in recent memory, there are cases of people being found innocent in terrorism cases after 14 and even 23 years in prison). Bail, thus, becomes the only safeguard and guarantee of the constitutional right to liberty.
In ordinary circumstances, when considering the question of bail, a court is meant to take into account a range of factors. These include whether the accused is a flight risk, whether he or she might tamper with the evidence or attempt to influence witnesses, and the gravity of the offence. But it is here that Section 43(D)(5) of the UAPA plays such a damaging role. As we have just seen, under the classical vision of criminal justice, truth — about innocence or guilt — can only be determined after the evidence of both the prosecution and the defence has been subjected to the rigours of cross-examination. However, as lawyers and scholars such as Abhinav Sekhri and Anjana Prakash have also pointed out, Section 43(D)(5) short-circuits that core assumption. For the grant of bail, it only looks at the plausibility of one side’s evidence — that is, the Prosecution’s. It binds the court to look at only the case diary or the police report, which has not been challenged by cross-examination, and requires that bail be denied as long as the unchallenged prosecution case appears to be prima facie true.
The perversity of Section 43(D)(5), thus, is that it forces the court to make an effective determination of guilt or innocence based on one side’s unchallenged story, and on that basis to deprive individuals of their freedom for years on end. In a democratic polity, which is committed to the rule of law, this is a deeply troubling state of affairs.
The effect of Section 43(D)(5), as one can see, is that once the police elect to charge sheet an individual under the UAPA, it becomes extremely difficult for bail to be granted. Even outlandish or trumped-up cases can sound convincing until people have a chance to interrogate and challenge them. In short, unless the police prepare an extremely shoddy case — that is riddled with internal contradictions, for example — a case diary or a report will invariably make out a “ prima facie ” case against an individual.
Finer points of the judgment
It is here that the Delhi High Court’s judgment becomes important. The Bench of Justices Siddharth Mridul and Anup Jairam Bhambani correctly note that even though Section 43(D)(5) departs from many basic principles of criminal justice, there are other fundamental principles that remain of cardinal significance. These include, for example, that the initial burden of demonstrating guilt must always lie upon the prosecution; and also, that criminal offences must be specific in their terms, and read narrowly, to avoid bringing the innocent within their net. On this basis, the court’s judgment notes that as the UAPA is meant to deal with terrorist offences, its application must be limited to acts that can reasonably fall within a plausible understanding of “terrorism”. “Terrorism” is a term of art, and not a word that can be thrown around loosely. Thus, to attract the provisions of the UAPA — the judgment holds — the charge sheet must reveal factual, individualised, and particular allegations linking the accused to a terrorist act.
The judgment then finds that even if the police’s claims are taken to be true, no such allegations exist. At the highest, the accusations against the activists involve calls for protests and chakka jams (road blockages). There is no act, overt or covert, attributed to the activists that could constitute a terrorist offence. And, importantly, inferences or hypotheticals drawn by the police do not count at the stage of granting bail. Coupled with the significance of the right to protest and to dissent under our constitutional scheme, the judgment therefore holds that even prima facie , a case under the UAPA has not been made out, and therefore, there is no question of the application of Section 43(D)(5).
The Delhi High Court’s judgment indicates a pathway forward in the quest for finding a balance between citizens’ civil rights and the imperatives of anti-terrorism legislation such as the UAPA. A position under which citizens can be jailed for years on end just on the basis of police reports and case diaries, with courts precluded from granting them bail, is completely inconsistent with democracy, and redolent of authoritarian or tyrannical states. However, the court’s analysis shows how even within — and consistent with — the terms of the UAPA, there is an important role for a conscientious judiciary to play. By scrutinising the police case on its own terms, and according a strict interpretation to draconian legislation such as the UAPA, courts can ensure that civil rights are not left entirely at the mercy of the state.
At the time of writing, the High Court’s judgment has been appealed by the Delhi Police to the Supreme Court of India . It now remains to be seen whether the highest court will also endorse this crucial ruling, which restates the responsibility of an independent judiciary in checking executive impunity.
Gautam Bhatia is a Delhi-based lawyer