BAIL ORDERS IN THE DELHI RIOTS CASES AND THEIR STYMIED SIGNIFICANCE: AN ANALYSIS

This article has been authored by Dhruv Bhatnagar. He is a litigation lawyer based in New Delhi, India, and a 2017 law graduate from Gujarat National Law University, Gandhinagar.

Recently, the Delhi High Court (“DHC”) passed orders in three cases, Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal (“Orders”), granting bail to students charged with the commission of several offences, including under the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), for their alleged involvement in the anti-CAA protests in Delhi. DHC broadly ruled that since the Delhi Government had failed to establish a prima facie case of offences under the UAPA against the accused, the onerous bail conditionalities under this anti-terrorism statute would not apply and the accused deserve to be released per the general principles for grant of bail.

Despite the DHC’s dispassionate application of law and lucid reasoning, the Supreme Court (“SC”), in its June 18, 2021 interim order, passed in respect of the Delhi Government’s appeals against the Orders (“Appeals”), directed that the Orders “not be treated as a precedent” during the pendency of the Appeals. However, bail granted to the accused has not been revoked yet.

This piece traces jurisprudence on UAPA’s bail provision which guided the DHC’s decision to grant bail in these cases, crystallises key findings in the Orders, and assesses whether the SC was correct in thwarting their precedential value.

Law on bail under the UAPA

According to Section 43(D)(5), UAPA, no persons accused of offences punishable under Chapters IV and VI thereto, can be released on bail: (i) unless the public prosecutor has been heard; and (ii) the presiding Court finds, upon a perusal of the case diary or police report, levelled accusations to be prima facie true. This provision has been interpreted by the SC in two notable decisions, Watali and Najeeb, both of which were relied upon in the Orders.

In Watali, the SC ruled that while deciding bail applications Courts should not conduct an “elaborate examination or dissection of the evidence”. Pertinently, by precluding Courts from evaluating the prosecution’s case and supporting materials in detail, which is all they are allowed to consider while deciding bail pleas under the UAPA, SC’s Wataliverdict makes grant of bail almost impossible before completion of trial.

Subsequently, to harmonise statutory limitations under the UAPA with constitutional rights under Part III of the Constitution, particularly the right to a fair and speedy trial under Article 21 of the Constitution, the SC in Najeebpermitted bail even in cases where: (i) there is no likelihood of trial being completed within a reasonable time; and (ii) the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. This ruling has been correctly described as significant by commentators for throwing open possibilities of claiming Article 21’s protection in other situations as well, including where prolonged pre-trial incarceration violates the accused’s right to health and medical care.

Key findings in the Orders

1. The Ambit of ‘terrorist acts’: The Parliament’s legislative competence to enact UAPA can be traced to the “defence of India” entry in List I, Seventh Schedule of the Constitution. This demonstrates the exceptional nature of terror offences under the UAPA contradistinguished from ordinary crimes. The theme of Section 15, UAPA (terrorist acts) is to proscribe acts that are intended or likely to threaten ‘security of the State’ or ‘strike terror’. Such acts are of markedly greater gravity than those aimed at disrupting ‘law and order’ or even ‘public order’, and therefore, fall within the smallest of the three “concentric circles” theorised by the SC in its Ram Manohar Lohia verdict. Thus, even though the language of this provision is wide and vague, settled tenets of statutory interpretation require that it be construed narrowly to prevent taking within its sweep persons whom the legislature never intended to punish.

2. Need for particularised allegations: The Delhi Police’s chargesheet lacked “specific, particularised, factual allegations” against the accused, which could have prima facie established the ingredients of the alleged offences under Sections 15, 17, and 18, UAPA. Further, the State cannot link the accused’s actions to the violence which occurred during the protests through hyperbole and stretched inferences. Since the Watali verdict interdicts Courts from delving into the merits or demerits of evidence when deciding bail pleas, logically, Courts must also refrain from considering the prosecution’s “suspicions and inferences”.

3. Applicability of general principles for grant of bail: When no prima facie case of offences under the UAPA has been made out against the accused, general principles for grant of bail and not Section 43(D)(5), UAPA, would prevail. Applying these principles, bail pleas in the present cases deserved to be allowed since there was no reasonable apprehension that the accused would: (i) abscond; (ii) tamper evidence; (iii) intimidate witnesses; or (iv) otherwise impede trial, if released.

4. Right to a fair and speedy trial: The accused had been in jail for over a year and there was no possibility of the trial concluding within reasonable time, considering that it had not even commenced and there were over 700 prosecution witnesses who would have to be examined once it began. Keeping the accused detained for such an inordinate duration would fully negate their right to a fair and speedy trial, upheld by the SC in its Najeeb verdict.

Precedential value of the Orders rightly stayed?

The Orders demonstrate DHC’s commitment towards upholding constitutional rights even within the restrictive confines of UAPA. Since DHC assessed bail pleas on merits, these Orders can serve as blueprints to decide similarly placed cases under UAPA and other specialised penal statutes with stringent bail restrictions. This could eventually create evolved jurisprudence on bail matters that respects personal liberty and deprecates the practise of unfair pretrial incarceration based on flimsy allegations and weak evidence. Additionally, DHC’s clear explanation of the exceptional nature and high threshold for invoking terror offences under the UAPA, offers a compelling defence against the cavalier application of this draconian statute to stifle expression which challenges the actions and ideology of the prevailing regime.

Unfortunately, the SC’s June 18 interim order has denuded the Orders of their precedential value, without conclusively examining their correctness. Consequently, these orders can no longer be cited or relied upon in subsequent cases involving similar curtailment of personal liberty, at least until the SC finally decides the Appeals.

Reportage of the June 18 Appeals hearing informs that the SC was flummoxed by the DHC’s discussion of “all law” and length of the Orders even though DHC was deciding bail applications where constitutionality of UAPA’s provisions was not under challenge. The SC also appears to have been swayed, to some degree, with State’s contentions that the DHC has: (i) diluted UAPA’s provisions by reading them down; and (ii) trivialised violence as a mere expression of the ‘right to protest’. SC’s observations and the State’s arguments, which grossly misinterpret the Orders, merit examination:

1. Firstly, the DHC’s analysis of UAPA and bail provisions under other penal statutes, was vital to accord cogent reasons to its findings. Indeed, the SC has itself described reasons as the “soul of orders” and insisted that orders granting or rejecting bail pleas record “reasons which have weighed with the court for the exercise of its discretionary power”.

Perhaps the SC would have been able to appreciate the distinction between attribution of reasons to support findings from commentary on UAPA’s constitutionality, had it perused the Orders with some degree of granularity. However, before conducting this evaluation, hastily placing the Orders in abeyance where they are neither fully stayed nor completely overruled, does not appear to be a legitimate exercise of SC’s appellate jurisdiction. Pertinently, SC’s direction to not treat the Orders as precedent also squarely contradicts its recent ruling in Ramesh Bhavan Rathod wherein the practise of disavowing bail orders of their the precedential value on grounds of parity was deprecated.

2. Secondly, the State appears to be conflating the concepts of ‘reading down’ and ‘strictly reading’ provisions of penal statutes. DHC strictly interpreted UAPA’s provisions because that is how the SC requires penal statutes prescribing severe punishments to be interpreted, to prevent their wanton abuse. ‘Reading down’, as explained by the SC, would have entailed consciously recasting UAPA’s provisions to save them from unconstitutionality, which the DHC clearly did not do in the Orders since constitutionality of these provisions was never at-issue in these cases.

3. Lastly, the State’s allegation that DHC is trivialising violence is seemingly founded on a selective reading of the Orders. The DHC merely restated the contours of legitimate protests, demarcated by the SC, to find that even if organising chakkajams, delivering allegedly inflammatory speeches, and instigating protestors, transgressed constitutionally permissible limits of the right to protest under Article 19(1)(b), these actions of the accused still did constitute ‘terrorist acts’ or a ‘conspiracy’ or ‘acts preparatory’ to their commission under UAPA. At no point did the DHC legitimize violence, and in fact, consciously chose not to examine whether the protests at issue crossed the line of peaceful protests.

In recent decisions, such as Mahipal v. Rajesh Kumar and Prabhakar Tewari vs State of UP, the SC has narrowed the scope for interference with orders granting bail broadly to, (i) cases involving non-consideration of relevant factors or non-application of mind by the subordinate court; or (ii) decisions which are not borne out of a prima facie view of the evidence on record. Plainly, DHC’s well-reasoned Orders do not attract any of these grounds, which should make it difficult for the SC to justify reversing the DHC’s verdict, if it chooses to do so. One can only hope that while finally deciding the appeals against the Orders the SC recognises the Orders’ significance, limits the grounds for examining their propriety to those delineated in its prior rulings, and abandons the ill-conceived reasons accorded to staying their precedential value.