How the State uses ‘national security’ to spellbind the process of justice

As the J&K High Court recently reiterated, allegations of 'terrorism' have become a copy-paste template that the State uses to muffle dissent, but why do courts freeze the process of criminal justice on hearing 'national security'?

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PRESUMPTION of innocence is one of the cardinal principles of the criminal justice system in India. The Supreme Court has interpreted it as a "due process" guarantee under Article 21 (protection of life and personal liberty).

Presumption of innocence simply means that the accused is innocent until proven guilty. This also implies that the burden to prove the accused's guilt lies with the prosecution. This principle comes into play at the very early stage of a criminal trial: at the time of granting bail.

It is reflected in Section 167 (procedure when investigation cannot be completed in twenty-four hours) of the Code of Criminal Procedure (CrPC), where an accused person, depending upon the gravity of the crime committed, could be detained in police custody for up to sixty or ninety days. After the said period expires under Section 167 of CrPC, the person has to be released on bail as a matter of statutory right.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has now replaced the CrPC, has modified Section 167 CrPC to Section 187, which says that police custody of fifteen days can be authorised in whole or in parts at any time during the initial forty or sixty days out of the sixty or ninety day period of judicial custody. After the said custody is over, the accused must be released on bail.

Reversal of presumption of innocence via twin-bail conditions

The principle of innocence is said to be severely undermined in certain "special laws" enacted to deal with extraordinary offences that cannot be dealt with under general criminal law.

Also read: Bail continues to evade Umar Khalid's name

For instance, Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) says:

"No person accused of an offence under Chapters IV and IV of this Act, shall, if in custody, be released on bail or on his bond unless:

• The public prosecutor has been given an opportunity of being heard on the application for such release.

• Provided that the 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 under Section 173 (report of police officer on completion of investigation) of the CrPC is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

This is an example of what is termed "twin-bail conditions". Such conditions were also present in the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and Prevention of Terrorist Act, 2002 (POTA), which replaced the UAPA, making it the primary legislation in India dealing with the offence of "terrorism".

The constitutionality of rigorous bail conditions in the TADA, the POTA and now the UAPA has been consistently upheld by courts. For instance, the Supreme Court in Kartar Singh versus State of Punjab (1994), for the first time dealing with the constitutionality of the TADA, upheld the anti-terror law because it dealt with a newer offence that shakes the rule of law which is the structural basis of any democracy.

It described terrorism as: "The objective of such unconventional war is to destabilise and weaken the government and break up the social, political and economic order."

The court added that the State is morally justified to take measures as necessary to combat terrorist activities.

In Kartar Singh, the court made an extremely crucial distinction that the TADA is not in pith and substance a law relating to public order. The court referred to Ram Manohar Lohia (Dr) versus State of Bihar (1966), in which the Supreme Court had said that public order must be comprehended as disorders of less gravity than those affecting the security of the State and law and order must be comprehended as law and order disorders of less gravity than those affecting public order.

Also read: Bhima Koregaon: The process continues to clot as punishment as another year passes by

The court said: "One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not the security of the State."

However, the distinction between public order and national security is often blurred because not only is the cardinal principle of presumption of innocence reversed, but the burden on the prosecution to prove the merit of evidence is also reversed.

Extremely low standard of prima facie scrutiny

Under the UAPA, instead of the "burden of proof", the prosecution has to show that the allegations against the accused are "prima facie true".

The Supreme Court through certain judgments such as the National Investigation Agency versus Zahoor Ali Watali (2019), Gurwinder Singh (2024) and Union of India versus Barakathulla (2024) has given primacy to the veracity of evidence brought by the prosecution and has stated that the court must not ascertain the probative value of the evidence.

In Watali, the Supreme Court division Bench of Justices Justices A.M. Khanwilkar and Ajay Rastogi said that the "expression 'prima facie true' would mean that the material or evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given face or the chain of facts constituting the stated offence, unless rebutted or contradicted."

In Gurwinder, upholding the Watali judgment's reasoning, a Supreme Court division Bench of Justices M.M. Sundresh and Aravind Kumar held that "jail, not bail, is the rule under the UAPA".

Whereas, in Vernon versus State of Maharashtra (2023), the Supreme Court Bench of Justices Aniruddha Bose and Sudhanshu Dhulia, while granting bail to trade unionist Vernon Gonsalves, and lawyer and activist Arun Ferreira in the Bhima Koregaon-Elgar Parishad case, disagreed with the Watali judgment's reasoning.

Also read: "Blatant attempt to circumvent due process of law," says Supreme Court, quashing the arrest of Newsclick's Prabir Purkayastha 

It held that the prima facie test under Section 43D(5) will not be satisfied unless there is at least a "surface analysis of the probative value of the evidence".

Against this jurisprudence is the observation of the Supreme Court in Union of India versus K.A. Najeeb that the Section 43D(5) embargo runs independently of the Article 21 guarantees which protects the accused person against prolonged incarceration.

Criminal law jurisprudence requires that the more stringent the law is, the more strictly and cautiously it has to be applied. However, considering the wide interpretation given to the powers, much less emphasis on the words "reasonable grounds" and an extremely low threshold of prima facie scrutiny under Section 43D(5) of the UAPA, there is effectively no safeguard available to the accused person.

The jurisprudence has resulted in widening the coercive powers of the police and investigation agencies. Since the court only forms its assessment on broad probabilities, a pattern has emerged from the evidence submitted by the prosecution in a wide range of UAPA cases where there is a similarity in terms of enormous allegations running into thousands of pages, generalised testimonies of witnesses; most of which are protected witnesses, lack of incriminating evidence and heavy reliance on electronic evidence and literature.

There are similarities in three specific instances: those arrested in the backdrop of the 2018 Bhima-Koregaon violence, deoperationalisation of Article 370, and 2020 Northeast Delhi riots.

For instance, in the 2020 Northeast Delhi riots, the Delhi police registered more than 700 first information reports (FIRs), mostly against unknown persons, under the UAPA, and relevant provisions of the Indian Penal Code, 1860 (IPC). Investigation in most cases remains pending, while trial in another half is yet to commence.

The Delhi police made activist and former student of Jawaharlal Nehru University Umar Khalid the "mastermind" of the conspiracy to instigate violence and terrorism-related activities during these riots along with his 17 associates namely Athar Khan, Asif Iqbal Tanha, Devangana Kalita, Gulfisha Fatima, Ishrat Jahan, Khalid Saifi, Meeran Haider, Mohammad Faizan Khan, Natasha Narwal, Safoora Zargar, Saleem Khan, Salim Malik, Shadab Ahmed, Sharjeel Imam, Shifa-ur-Rehman, Tasleem Ahmed and Tahir Hussain, for planning and carrying out organised protests which culminated in the riots.

Also read: Safeguards under the UAPA: Section 43A and 43B

The police arrested Khalid on September 13, 2020 for various offences under the UAPA and the IPC and his trial is yet to commence.

The Delhi police accused Khalid of having given provocative speeches at different locations and appealing to people to come out of their homes and block the streets during the visit of former US President Donald Trump so as to grab media attention at an international level that minorities were being targeted and discrimination against in India.

The speech in question was given in Amravati, Maharashtra, a week before the riots broke out in Delhi, in connection with the Citizenship (Amendment) Act, 2019 (CAA) and the proposed National Register for Citizens (NRC).

The chargesheet states: "The appellant [Umar Khalid] is a 'veteran of sedition' and a 'top most conspirator' in the conspiracy behind the Delhi riots. That his role in the conspiracy first found tangible manifestation on December 5, 2019 when upon his directions, co-accused Sharjeel Imam constituted a WhatsApp group calling Muslim students of JNU (hereinafter 'MSJ')."

It is further stated: "That on December 7, 2019 the appellant attended an anti-CAA protest organised by 'United Against Hate' at Jantar Mantar, New Delhi which was also attended by Sharjeel Imam and other members of the MSJ.

"It is mentioned that the appellant introduced Sharjeel Imam to Yogender Yadav, who along with the appellant instructed Imam to mobilise students of JNU, Jamia Millia Islamia, Aligarh Muslim University and Delhi University. Apparently, at this meeting it was decided that these three persons would use social media for large-scale indoctrination and mobilisation of youths for chakka jams in order to protest against the CAA. A meeting was also planned for the next day."

By and large, the police submitted evidence in the form of WhatsApp messages, pamphlets, printed materials, photographs, call detail records and statements of recorded protected witnesses. Heavy reliance was made on the various meetings attended by Khalid with his associates.

Despite the enormity of the allegations, the trial in Khalid's case is yet to commence. There continue to be material inconsistencies and the lack of incriminating evidence against him.

Also read: Was the trial judge who convicted G.N. Saibaba biased? We will never know, and that is part of the injustice 

For instance, over 800 witness statements were recorded by the Delhi police, most of which are of protected witnesses. Khalid's counsel has consistently alleged that Khalid's case is only dependent on the statements of a few witnesses, some of which have been taken on face value and are hearsay.

One of the main arguments has been that Khalid was not present at the incident of purported violence between February 22–25, 2020. This, the counsel has argued, could also be considered from the fact that Khalid is neither seen in any CCTV footage nor has any witness made any statement about his presence in the incident.

The Delhi Police called Khalid a "silent whisper" alleging that even though he was not present at the crime scene, he planned everything from a distance.

A Delhi High Court Bench comprising Justices Siddharth Mridul and Rajnish Bhatnagar found that based on a broad reading of all the evidence and the statements, the role of Khalid as a conspirator was apparent.

But the same standard was not applied to the Delhi High Court Bench of Anup Jairam Bhambhani also comprising Mridul while granting bail to Tanha, Narwal and Kalita despite the fact that the evidence against them are same as those submitted in Khalid's case.

The Bench while deciding on Tanha's bail application termed the accusation as "mere allegations" and said that the court was not convinced prima facie of the veracity of it. It held that there is absolutely nothing in the chargesheet by way of any "specific or particularised" and "factual" allegation that would show the possible commission of a "terrorist act" within the meaning of Section 15 UAPA.

In Kalita's case, the court remarked: "The making of inflammatory speeches, organising chakka jams, and such like actions are not uncommon when there is widespread opposition to governmental or parliamentary actions.

"Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakka jams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our constitutional guarantee, that however would yet not amount to commission of a 'terrorist act' or a 'conspiracy' or an 'act preparatory' to the commission of a terrorist act as understood under the UAPA."

The court concluded by stating: "We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed 'right to protest' and 'terrorist activity'. If such blurring gains traction, democracy would be in peril."

Also read: 'Jail, not bail': Is the SC setting the clock back, asks PUCL about Gurwinder Singh judgment

In Bhima Koregaon-Elgar Parishad case, where sixteen leading human rights defenders, lawyers, scholars and artists were allegedly arrested for waging a war against the Indian government, overthrowing democracy and plotting to assassinate Prime Minister of India Narendra Modi, the Maharashtra police and National Investigation Agency (NIA) has heavily relied on electronic letters retrieved primarily from the computers of Rona Wilson and Surendra Galding.

On January 1, 2018, thousands of Dalits gathered in the village of Koregaon, on the banks of river Bhima, to commemorate the bicentenary of the Battle of Koregaon. However, what followed was communal violence between Hindutva forces and Dalits resulting in injuries and death of one person.

Although the police initially arrested some Hindutva instigators of the riots, it ultimately went on to rest its case based on the sixteen accused persons, alleging that they had formed a nationwide urban network of Maoist terrorists to overthrow the government.

The police have also relied on the hard discs of the computers that were seized from the homes of all 16 accused persons during the 2018 raids, which was followed by their arrest. However, the clone copies of the hard disc were supplied to them after two years.

In fact, various press conferences were organised by the Maharashtra police after the arrest of the 16 accused persons, where police claimed that they had 'conclusive proof' when the said documents were not given to the defence lawyers or were recorded before the court.

The chargesheet filed by the police against them runs into thousands of pages.

The contents of the letters along with other electronic evidence were used to prove the membership of two other accused Vernon Gonsalves and Arun Ferreira with banned Maoist organisations Communist Party of India (Maoist).

The electronic incriminating evidence seized by the NIA was "planted" through NetWire, a sophisticated malware, in the electronic devices of two accused Surendra Gadling and Rona Wilson, as was revealed by a United States-based digital forensic analysis firm Arsenal Consulting.

Also read: Why Mahesh Raut needed an interim bail on top of regular bail to attend his grandmother's funeral 

The report confirmed a Pegasus spyware attack on the electronic devices of the Bhima Koregaon accused persons and on their families and friends.

In 2021, it was revealed that over 300 individuals including politicians, lawyers, activists and journalists from India were among a list of 50,000 for cyber-surveillance targets across the world done by Pegasus, a phone hacking software developed by Israeli-tech company NSO Group.

Given these revelations, Gonsalves and other accused persons requested a Supreme Court-appointed technical committee to direct the NIA to hand over their phones for inquiry to the committee, to check for infection by malware.

The Supreme Court, while granting bail to Gonsalves and Ferreira, said that the letters are in the nature of hearsay evidence. It rejected the Watali reasoning and held that the evidence needs to be analysed.

In Gonsalves and Ferreira's case, the NIA had allegedly recovered "extreme left-wing" literature, including books and pamphlets stating that it was used to propagate violence and promote the overthrow of a democratically elected government through an armed struggle.

However, the Supreme Court Bench Justices Aniruddha Bose and Sudhanshu Dhulia held that "mere holding of certain literature through which violent acts may be propagated" would not ipso fact be considered as a terrorist act within Section 15 UAPA.

In the Bhima Koregaon case, the trial is yet to begin while most accused persons remain incarcerated.

Similarly, the NIA relied heavily on the "Naxalite literature" allegedly seized from Dr G.N. Saibaba, who was arrested for being an active member of the CPI (Maoist) and its frontal organisation, the Revolutionary Democratic Front.

Saibaba, a former professor at Delhi University, is wheelchair-bound due to a 90 percent physical disability along with multiple health issues. He was arrested in 2014 for indulging in activities amounting to waging war against the country and thereafter, wrongfully convicted by a Gadchiroli sessions court in 2017.

He was acquitted by the Nagpur Bench of the Bombay High Court in 2017. However, the case went for a fresh hearing before the high court after a Supreme Court Bench of Justices M.R. Shah and Bela S. Trevidi suspended the Order on a non-working day and another Bench of the Supreme Court remitted it back to the high court.

Also read: Jail, not bail, is the rule under UAPA: Supreme Court 

In Saibaba's case, the NIA had allegedly recovered a microchip SD memory card containing "vital Maoist communications".

The NIA had strongly argued that recovery of incriminating material from the site of the offence attracts a statutory presumption under Section 43E (presumption as to the offence under Section 15) that a terrorist act has been committed in the context of Section 15 UAPA.

However, the court rejected this interpretation and held that "mere finding of some incriminating material in the form of pamphlets and electronic data cannot be termed as a recovery of the articles in terms of sub-clauses (a) and (b) of Section 43E of the UAPA."

In the context of Naxalite literature, it held: "The contents of these documents, if taken cumulatively, would perhaps demonstrate that the accused were sympathisers of a Maoist philosophy or sympathised with the cause of certain tribal groups or certain people who were perceived to be marginalised or disenfranchised, and mere possession of such literature, having a particular political and social philosophy by itself is not contemplated as an offence under the UAPA."

On March 11, the Supreme Court acquitted Saibaba for want of legal sanctions under the UAPA, after he had spent 10 years lodged in the Nagpur Central Prison.

Similarly, a pattern of reliance by the NIA on generalised allegations against human rights defenders and journalists of Jammu and Kashmir has emerged in the backdrop of the deoperationalisation of Article 370. 

Prominent human rights defender Khurram Parvez remains incarcerated for the last two years in a UAPA case in connection with alleged funding of secessionist and separatist activities in 2020.

Parvez's arrest highlights the larger crackdown on free speech and human rights in Kashmir. Irfan Mehraj, Fahad Shah, Abdul Aala Fazili, Sajad Gul and Aasif Sultan are some of the prominent names of human rights defenders, scholars, and journalists who have been arrested on similar charges of promoting secessionist activities. Some of them remain incarcerated without a trial.

Most of these accused have been charged under the UAPA and the Jammu & Kashmir Public Safety Act, 1978 (PSA), based mostly on the grounds that they have authored literature that promotes the secession of Jammu & Kashmir from India.

Also read: Two years on, human rights defender Khurram Parvez waiting for his human rights to be defended

For instance, in Shah's case, the allegation against him was that the NIA had recovered a write-up titled "The shackles of slavery will break" co-authored by Fazili and uploaded on the online news portal The Kashmir Walla.

The piece was authored on November 6, 2011. However, the charges under UAPA were framed only in 2022 when the two promoted "narrative terrorism". They were also charged with sedition under UAPA as the piece was "highly provocative and seditious".

The website and social media handles of The Kashmir Walla have been banned by the government without official notice.

The high court, while also granting bail to Shah, had said that the piece did not promote accession of J&K with Pakistan nor did it encourage people to take up armed struggle against the Indian government.

Similarly, in the case of Parvez and Mehraj, both of whom have regularly reported human rights abuses and the impunity enjoyed by Indian armed forces under the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 through the only functional human rights organisation Jammu Kashmir Coalition of Civil Society (JKCCS).

The reports by JKCCS have highlighted how in the last 22 years, no sanction has been granted by the Union government to prosecute armed forces personnel under AFSPA or how the disruption of the internet in the Valley has led to the denial of human rights to the people of J&K.

Another phenomenon that has emerged in UAPA cases is the denial of a copy of FIR to an accused person as happened in the case of Newsclick founder Prabir Purkayastha arrested in an alleged terror-funding case or in Parliament security breach case.

Recently, the Supreme Court termed Purkayastha's arrest as illegal and accused the NIA of a "blatant attempt to circumvent due process".

Denial of evidence despite the fact that the accused cannot challenge the veracity or admissibility of the evidence at the stage of bail is a clear violation of the fair trial principles enumerated in Articles 21 and 22 (protection against arrest and detention in certain cases) of the Indian Constitution.

Are courts doing enough to balance the scale of justice?

Recently, the High Court of Jammu and Kashmir and Ladakh in Khursheed Ahmad Lone versus Union Territory (2024) remarked that in UAPA cases, the investigation agency only has generalised arguments to offer that the offence is heinous and that if the accused is granted bail, it would be against the interest of the nation.

Also read: Incarceration of Khurram Parvez and Irfan Mehraj has made human rights work in Kashmir extremely difficult, FIDH's Juliette Rousselot 

A division Bench of Justices Atul Sreedharam and Mohammad Yousuf Wani said: "These arguments [of investigation agencies] are copy pasted in every case under the UAPA. In fact, experience has shown that the main thrust of the prosecution's argument is usually on these aspects, rather than the specific material, which appears, against the accused person."

In this case, an accused person was arrested in 2013 under the PSA and the UAPA but was released on bail for the charges under the PSA.

Thereafter, he was arrested in 2022 as the NIA took nine years to complete the investigation. The high court, while granting bail, added: "The initial and main thrust of the UT's [Union Territory] argument is to make an attempt to psychologically overawe the court by bringing in elements of national security, nationalism, allegiance to Pakistan (of the accused), radical Islam-Islamist and Islamism (as the influence on the accused), secession of Jammu and Kashmir from India and its accession to Pakistan (as the goal of the accused) etc., which this court acknowledges as elements relevant in a case under the UAPA but which should be supplemental submissions in addition to the material raising a prima facie view that the accused may have committed the offence."

The court has bemoaned the government for influencing the court by the often forceful submission of internal security of the State when it has utterly failed to disclose any material against the accused that could raise the prima facie involvement.

It termed this a "sure shot recipe for miscarriage of justice" and added that "an overbearing subliminal belief in the primacy of internal security of the State in the subconscious mind of the judge, could result in the inadvertent oppressive application of a draconian law resulting in the denial of liberty, unsupported by judicially cognisable material".

However, despite the growing opposition against the UAPA, the Supreme Court continues to widen the scope of powers that could be exercised by the investigation agencies.

Recently, the Supreme Court division Bench of Justices Bela M. Trivedi and Pankaj Mithal in Barakatullah (2024) held: "National security is always of paramount importance" and "any act in aid to any terrorist act-violent or nonviolent is liable to be restricted".

In this case, members of Popular Front of India, an Islamic organisation, were accused of conspiring to commit terrorist acts, raising funds for committing terrorist activities and recruiting members to further their extremist ideology.

When courts themselves justify the supremacy of the State's power, how do they justify the separation of powers and their role as protectors of the fundamental rights of citizens?