Courts will examine the probative value of evidence and then they will not. Prosecution counsels will be unavailable. Judges will recuse themselves from a case. In this grind, is it alright if a young scholar turns into an old man?
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LAST year, in an event organised by the Bar Council of India, Chief Justice of India Dr D.Y. Chandrachud (CJI) said: “Judges at the grassroots level are reluctant to grant bail … there is a sense of fear of being targeted for granting bail in heinous cases.”
September 13 marked three years since activist and former Jawaharlal Nehru University student Umar Khalid was arrested under the anti-terrorist legislation Unlawful Activities Prevention Act, 1967 (UAPA), on allegations of being part of a larger conspiracy responsible for the North East Delhi riots of February 2020.
Under the UAPA, police or any other investigating agency are given up to 180 days to file chargesheets.
As per Section 43D(5) of the UAPA, the court cannot grant bail, if, on perusal of the police diary or report, there are reasonable grounds to believe that the accusations are prima facie true.
Charges against Khalid
On February 23, 2020, communal violence broke out in northeast Delhi in the backdrop of the anti-Citizenship (Amendment) Act, 2019 (CAA) and the proposed National Register for Citizens protests. Khalid was accused of being one of the “masterminds” (along with 17 others) for orchestrating the violence.
According to the chargesheet filed by the Delhi police (which has been under scrutiny for its role in the riots) Khalid delivered an inflammatory speech in Amravati, Maharashtra, a week before the riots broke out in northeast Delhi.
Two first information reports (FIRs) were filed against Khalid.
Under the UAPA, police or any other investigating agency are given up to 180 days to file chargesheets.
In one of the FIRs, charges under Sections 147 (punishment for rioting) and 148 (rioting, armed with deadly weapons), 149 (every member of unlawful assembly is guilty of the offence committed in prosecution of common object) and 302 ( punishment for murder) of the Indian Penal Code (IPC), along with charges under Sections 13 ( punishment for unlawful activities), 16 (punishment for terrorist act) and 18 (punishment for conspiracy) of the UAPA have been framed against him and 17 others.
Charges under the Arms Act, 1959 for the use of arms during riots have also been framed against him. Additional charges under Sections 124A (sedition) and 153A (promotion of enmity between groups on the ground of religion, race, place of birth, residence, etc.) of the IPC were also framed by the Delhi police in 2021.
Also read: As Dr Umar Khalid completes 1,000 days behind bars, it is the justice system which is on trial
In another FIR, Khalid, along with others, has been accused of vandalism and arson. The FIR accuses Khalid of being part of a large crowd at Khajuri Khas in northeast Delhi that was pelting stones at people and the police and setting vehicles on fire.
While he was granted bail in the second FIR, he continues to be denied bail in the first FIR.
On October 18, 2022, a Delhi High Court division Bench of Justices Siddharth Mridul and Rajnish Bhatnagar found the allegations against Khalid in the first FIR prima facie true.
Before the Bench heard his application, the court had put off the hearing on the ground that the Supreme Court was hearing a batch of petitions challenging the constitutionality of the sedition law.
Khalid was granted interim bail in December 2022 for a week to attend his sister’s marriage.
The bail conditions included that he would not be in touch with any of the witnesses in the case and he would daily video call the investigating officer.
Khalid’s co-accused in the case, student activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, were granted bail by the Delhi High Court Bench comprising Justices Anup Jairam Bhambhani and Mridul in June 2021.
While granting them bail, the court remarked that in its “anxiety to suppress dissent, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’.”
Life, liberty and protracted incarceration
The stringent conditions of bail under the UAPA strike at the core of the fundamental right to life and personal liberty.
The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) provided that an accused has to be granted bail if the court “is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail”.
Similarly, the Prevention of Terrorism Act, 2002, another repealed anti-terror law, provided that an accused is entitled to bail if the court is “satisfied that there are grounds for believing that he is not guilty of committing such offence”.
In another FIR, Umar Khalid, along with others, has been accused of vandalism and arson. The FIR accuses Khalid of being part of a large crowd at Khajuri Khas in northeast Delhi that was pelting stones at people and the police and setting vehicles on fire.
These provisions read with Section 43D(5) of the UAPA clearly suggest that the burden of proof must be on the prosecution, as held by the Delhi High Court is Asif Iqbal Tanha versus State of NCT Delhi (2019).
Also read: Why did the Gujarat High Court deny Teesta Setalvad bail last week?
However, the Supreme Court turned the onus of proof on its head in its judgment in National Investigation Agency versus Zahoor Ahmed Shah Watali (2019).
In that case, the court held that while considering a bail petition under the UAPA, a court cannot go into the probative value of the evidence, but should only form a prima facie opinion on broad possibilities.
This case made it almost impossible to obtain bail in UAPA matters because the threshold of bail conditions was raised beyond the reach of the accused and their counsels.
Against this judgment, the Supreme Court in Union of India versus K.A. Najeeb (2021) held that the bail embargo does not oust the ability of constitutional courts to grant bail on violation of fundamental rights, particularly the fundamental right to a speedy trial.
In K.A. Najeeb’s case, where the accused was arrested in 2015 and the charges were only framed in 2020, the court granted bail because of the prolonged incarceration of the accused and the unlikelihood that the trial would commence soon.
The Delhi High Court relied on the reasoning developed in K.A. Najeeb while granting bail to Tanha, Kalita and Narwal.
In their bail Orders, the high court laid down two common principles to be considered while taking a decision on granting bail to accused persons under the UAPA.
First, the more stringent a penal provision, the more strictly it has to be construed. This principle was elaborately explained by a Constitutional Bench in the Sanjay Dutt versus State through CBI(II) (1994) in terms of interpreting the TADA.
The court said: “When a law visits a person with serious penal consequences, extra care must be taken to ensure that those whom the legislature did not intend to be covered by the express language of the statute are not roped in by stretching the law.”
In Tanha’s case, the Delhi High Court gave a narrow interpretation to the meaning of ‘terrorism’ under the UAPA.
Second, the allegations levelled against the accused in the chargesheet must be “specific, factual, and particularistic”.
Taking a cue from the Watali judgment, the high court said that it must not be called upon by the State to draw inferences and conclusions.
In National Investigation Agency versus Zahoor Ahmed Shah Watali (2019), the court held that while considering a bail petition under the UAPA, a court cannot go into the probative value of the evidence, but should only form a prima facie opinion on broad possibilities.
It is the chargesheet that must disclose the commission of a ‘terrorist act’ or ‘conspiracy’ or an act ‘act preparatory’ to the commission of a terrorist act.
The high court pointed out that although a chargesheet was filed in Tanha’s case, there were 740 witnesses and the trial was yet to begin.
The court said: “Should this court wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely negated before it steps in and wakes up to such violation?”
However, when the Orders were challenged in an appeal, the Supreme Court, while upholding the bail Orders, observed that the Delhi High Court’s judgment should not be considered as precedent.
Two sides of Justice Mridul
Justice Mridul failed to apply the principles he had developed himself in the Tanha case in Khalid’s case.
In Tanha’s case, Justice Mridul had clearly stated that there was nothing to show the commission of a terrorist act or conspiracy in the anti-CAA protest as against the argument of the State that the protest was to shake the integrity and foundation of India.
However, in Khalid’s case, the court took a “broad reading” of all statements of the witnesses which according to the court disclosed “incriminating evidence” against the accused.
These statements disclosed that Khalid was a member of certain WhatsApp groups, participated in several meetings, and gave a reference to former President of the United States Donald Trump in his Amravati speech, all of which ultimately led to the hatching of a larger conspiracy.
For Justice Mridul, Khalid’s participation elevated the anti-CAA protests from “a typical protest” into something much more.
The more the time spent in jail, the quicker the possibility of bail
Senior advocate Rebecca John, in a recent book launch, said that the possibility of getting bail in UAPA cases depends on how long a person has spent in jail.
John was speaking on the recent judgment of the Supreme Court granting bail to Vernon Gonsalves and Arun Ferreira (whom she represented) accused in the alleged Bhima Koregaon–Elgar Parishad criminal conspiracy case.
She said that though the bail Orders questioned Watali’s reasoning, she could only get a favourable Order after having spent more than a year arguing for bail, out of the five years Gonsalves and Ferreria spent in prison without a trial under UAPA charges.
John said: “Had Vernon and Arun not spent five years in jail, I perhaps would not have got this Order from the Supreme Court…
“This brings us to this compromise that the judiciary has brought out. They ask what is the time spent [in prison]. If you have spent a minimum of four or five years, they are more inclined to grant bail. But you have to get through that period of incarceration before they are willing to look at the materials even if they have no probative value.”
Stats do not lie
Khalid’s case falls in the category of multiple incarceration as the Supreme Court has not afforded him the right to be heard.
The CJI, during the de-operationalisation of Article 370, said: “Access to our court for ventilating the grievances of citizens is within the framework of the Constitution. It is a constitutional right in itself.”
Access to justice is really all about the right to be heard. However, Khalid has become a victim of the court’s constant adjournments, unannounced recusals and the prosecution counsel’s unavailability.
Access to justice is really all about the right to be heard. However, Khalid has become a victim of the court’s constant adjournments, unannounced recusals and the prosecution counsel’s unavailability.
Khalid filed an appeal against the Delhi High Court’s Order before the Supreme Court in May this year.
On May 18, the division Bench of the Supreme Court comprising Justices A.S. Bopanna and Hima Kohli issued notice to the Delhi police. The matter was listed for hearing after six weeks.
On July 12, when the matter came up for hearing before a Bench comprising Justice A.S. Bopanna and M.M. Sundresh, Delhi police sought more time to file counter-affidavits.
Sibal objected to the counter-affidavits. He said: “In a bail matter, what counter is to be filed? The man is inside for two years and 10 months.”
The court agreed to adjourn the matter to July 24, stating: “Bail application may take one–two minutes.”
When the matter came up before a Bench comprising Justices A.S. Bopanna and Bela M. Trivedi on July 24, Sibal circulated a letter of adjournment.
The matter was then listed on August 9 before a Bench of Justices A.S. Bopanna and Prashant Kumar Mishra. However, Justice Mishra recused himself without giving any reason.
The matter came up again on August 18 and September 5.
Finally on September 12, a Bench comprising Justices Aniruddha Bose and Bela M. Trivedi said that they would examine the bail application on documentary evidence.
One among many
But Khalid is not alone.
In the Bhima Koregaon conspiracy case, 16 leading activists, scholars, lawyers and artists were arrested in 2018 for inciting violence.
Of the sixteen, fifteen have spent an average of three years in prison without a trial.
Tribal rights activist and Jesuit priest father Stan Swamy succumbed to death at the age of 84 awaiting bail on medical grounds.
As per the 2019 crimes in India report compiled by the National Crime Records Bureau, only 2.2 percent of cases registered under the UAPA between 2016–19 ended up in conviction by the court.
The Supreme Court will have to navigate its way through a seventeen-thousand-page chargesheet filed against Khalid and hundreds of witnesses to impart justice to a scholar.
Between 2016 to 2019, 5,922 persons were arrested under the UAPA and only 132 have been convicted.
Of those arrested in 2018–20 under the UAPA, 53 percent are persons below thirty years of age, as per the statistics of the Ministry of Home Affairs.
The Supreme Court will have to navigate its way through a seventeen-thousand-page chargesheet filed against Khalid and hundreds of witnesses to impart justice to a scholar.
When the Supreme Court came to the rescue of journalists Teesta Setalvad and Arnab Goswami saying “deprivation of liberty even for a single day is one day too many”, should not three years of youth be enough for the court to at least give a fair hearing to Khalid?
