Snippet: The Delhi High Court Order In Sharjeel Imam's Case

Yesterday, on July 10, the Delhi High Court delivered its judgment and final order in a petition filed by Sharjeel Imam [Crl. M.C. 1475/2020] challenging the order passed under Section 43-D(2) of the UAPA, by which the police have been granted additional time to complete the investigation in a case filed against him. The extension order was upheld.

The Order itself and the law on Section 43-D(2) are bound to receive close attention in the coming days. But what caught my attention upon reading the order was a specific observation passed by the Court at Para 51 of its order:

"Having heard the learned counsel for the parties and perused the record, at the outset I may state that the petitioner has not challenged the addition of Section 13 of UAPA to the list of offences, he is accused of. ..." [Emphasis mine]

This observation seems to be in response to a submission made by the Additional Solicitor General, which is recorded at Para 24 ["Mr. Lekhi submitted that Ms. John did not challenge the addition of Section 13 of the UAPA to the list of offences of which the petitioner is accused of ..."]. In turn, this entire exchange seems to have been a result of submissions made on behalf of Imam, where Senior Counsel argued that the invocation of UAPA offences on the 88th day of the investigation displayed the bad faith of the police.

This exchange is interesting because, seemingly inadvertently, it reveals a very serious problem within the Indian criminal justice system. This is the near-absolute discretion vested with police for adding offences to an ongoing investigation, and the limitations upon aggrieved persons to challenge these decisions. 

For appreciating this, let's take a step back. Normally the criminal process begins with lodging a "First Information Report". This not only summarises the initial allegations, but also notes the various kinds of offences made out by the allegations. As an investigation proceeds and more material is gathered, it is not uncommon for police to add more offences to the case. 

All this seems pretty tolerable. But things get a little tricky when we consider that the same set of factual allegations can make out many different kinds of offences. For instance, someone raising slogans against the unity of India can seemingly fit the definition of Sedition (Section 124-A IPC), and at the same time it can fit the crime of engaging in "Unlawful Activities"(Section 13 UAPA). 

The kind of offence that is invoked by police during an investigation is a choice which carries serious substantive issues. Continuing with the above example, Section 124-A IPC and Section 13 of UAPA have different possible punishments upon conviction, and arguably a prosecution for "Sedition" carries greater stigma. 

At the same time, this choice also carries serious consequences from a procedural standpoint. Not only is the procedure for trial of offences different, depending on the maximum possible punishments, but this is a factor which also affects valuable procedural rights of persons who are being accused of crimes. There are some offences for which police can arrest without warrant (cognizable) and where the person so accused does not have a right to bail (non-bailable). 

The core issue in Imam's case was also a procedural one — a UAPA case carries a possibility for extending time-limits on custody during investigation by ninety days, in addition to the regular ninety days that police get for serious crimes such as Sedition. Here, on the 88th day of the initial ninety, police had chosen to add UAPA offences in the case and immediately sought an extension for his custody while they completed their investigation. The Senior Counsel for Imam argued that this belated addition of the UAPA offence was clear indications of bad faith. But, as pointed out by the State, Imam had not challenged this decision.

Which brings me to the issue — how do accused persons challenge this decision of police to add offences to an ongoing investigation? Some thoughts are below: 

• There is enough and more judicial rhetoric which has held that the domain of investigations is solely that of the police and courts mustn't interfere with that process. At the same time, there are very recent decisions (the most recent being from 2019) which blur these lines and actively invite trial courts to "monitor" investigations. Should one take the High Court's observations in Sharjeel Imam as an indirect suggestion to accused persons, that they should explore this option in respect of the decision of police to add offences in a case, by asking the trial court to examine the basis for adding offences during an investigation?
• The more conventional route for challenging any aspects of investigations has been to move a High Court under its extraordinary jurisdiction (the alacrity with which this was happening, in fact, had prompted one Supreme Court judgment to suggest monitoring by trial courts). Normally though, the High Court is invited to quash the investigation altogether (quash the FIR as it is called). So should we read the observations in Sharjeel Imam as a suggestion that accused persons could perhaps move the High Court against the invocation of specific offences?  
• The observations in Sharjeel Imam are made in the nature of an aside (thankfully). Still, it makes one think about how should courts test arguments of bad faith in this context. I say this because the Court in Sharjeel Imam did not say that a bad faith argument was misplaced. If that is the case, then we certainly need some clarity to help adjudicate such pleas. Will my claim appear more genuine if I have pursued independent remedies? Should it matter?
• If either of these avenues does exist, then what does this mean for the general way in which criminal law works in India? I say this because, normally, an accused person is not really an active "subject" in an investigation. Instead, the accused is an "object" to whom things may happen, as the police go about their job of unearthing the truth. Are we witnessing a change in judicial attitudes where courts are themselves encouraging more participation from the side of the accused, perhaps recognising this is necessary towards securing the promise of an adversarial system of justice like India's claims to be?

It will be interesting to see whether this innovation happens in the near future or do these observations in Sharjeel Imam get lost to the pages of history.

[This post was updated at 5:30 PM on July 11, to add the point about adjudicating bad faith pleas]

Guest Post: Lessons From Abroad — R v Tran and Provocation in India

(This is a guest post co-authored by Varshini Sudhinder and Jibraan Mansoor)

SATURNINUS: Because the girl should not survive her shame, And by her presence still renew his sorrows; 

OTHELLO: I will chop her into messes! Cuckold me?; 

Introduction

Shakespeare’s cuckold has been a prominent theme in various works such as, The Merry Wives of Windsor, Cymbeline, and The Winter’s Tale. But what was supposed to be a literary feature has often made inroads into the halls of justice. For instance, in R. v. Mawgridge [(1707) Keil. 119], Judge Holt wrote,“[A] man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property”. It is not uncommon to find Indian courts reaching the same conclusions. For instance, when in C. Narayan (1958 Cri LJ 476) a wife was strangled to death by her husband after she confessed her adultery, and in Murugian (AIR 1957 Mad 541) when a husband killed his wife in response to her defiance about her adultery, in both these cases courts agreed that this was not murder as the accused had acted under provocation.

In this post, we attempt to re-complicate some of these conclusions. Borrowing from the Canadian experience we argue that at the heart of the “provocation for adultery” question rests a need to carefully balance human frailty with considerations of sexual autonomy. The post broadly covers four aspects. First, we briefly explain how Indian law has come to understand provocation and we identify certain issues which remain unanswered. Second, having identified the issue, we discuss the Canadian case of R v. Tran (2010 SCC 58) [Tran], to understand how the Canadian Supreme Court has made attempts to resolve these issues. The third section showcases a possibility of using the Canadian decision to good effect in the Indian Context. Finally, we discuss how Indian courts might consider changes to granting provocation in cases of adultery at a time when adultery is no longer a crime per se. 

Indian Courts, and Provocation as an Exception to Section 300

The statutory text of provocation needing to be “grave” and “sudden” tells us barely half the story; judicial decisions have added a great deal of nuance in applying this test. Stanley Yeo, in his paper, Gravity Of Provocation Revisited, having analysed the Indian experience, suggests that the judicial inquiry into a provocation plea involves first analysing if a “reasonable man” would be so provoked, when placed under a similar situation, to lose his self-control like the accused. After such an examination, and seeing if the accused did the same, we need to trace the fatal blow to the “influence of passion” which arose from the provocation, and not after having sufficient time to “cool down”, to prevent any scope of premeditation.

However, as R.V. Kelkar in his paper, Provocation as a defence in the Indian Penal Code notes, the judiciary has not always clarified things. One of the main reasons for this is the acceptance of the objective standard, that of a reasonable man, to analyse the defence of provocation. Using the “reasonable man” standard can lead to a lot of problems because the associated characteristics of a reasonable man have not remained consistent over time, as courts have acknowledged that obviously no person is ideally reasonable, and in fact is associated with “mistakes” and “defects”.

The canonical Nanavati (AIR 1962 SC 605) highlighted the need for the “reasonable man” to belong to the same class category and social realities, as the accused, to bring within it the “emotional background” of the social class to which the accused belongs. The court associates this reasonable man with certain characteristics, customs, manners, ways of life, etc. Some courts over the years have reinterpreted “reasonable man” to be an “ordinary” or “normal” one. Yeo stresses on the relevance and the importance of doing something like this because all persons are differently placed and come from diverse backgrounds. According to him, an accused’s characteristics may be of relevance either if the provocation was directed at particular characteristics of himself/herself; or, if the accused belonged to a class of persons who tend to possess self-control which is less than others.

Even though the above discussions are important as they recognise the need to account for human frailty, yet they also raise concerns about not allowing sexual autonomy to women. More broadly, they make one wonder that if we allow for the “sudden and grave” provision to be exercised by those in power, then do we completely dismiss the normative horizons that criminal law seeks to achieve by altering individual behaviours? So, will the Indian Jurisprudence allow a defence of provocation to an ultra-conservative Hindu belonging to a culturally sensitive class who murders a Muslim offering Namaaz in front of them? Further, to what extent can psychological factors which do not directly harm one, can become justification for the person to employ the defence of provocation? In order to address some of these questions, at least in the context of adultery, we undertake a comparative jurisdiction analysis, or “lessons from abroad”, by analysing the Canadian Supreme Court in Tran, and try to analyse the applicability of the Canadian Court’s decision in the Indian context.

R v Tran and New Beginnings 

The facts of R v Tran (2010 SCC 58) are straightforward. A man estranged from his wife snuck into their former home to discover her in bed with her new lover. He then flew into a rage, fatally stabbing his estranged wife’s lover with a knife, while also harming his estranged wife with that weapon. While there were various aspects in the decision which have interesting implications — how the court read the facts to understand “sudden” — for our purpose, the court’s assessment of what constitutes as a harm enough to allow for provocation is central. 

The court explains that the “… ordinary person standard must be informed by contemporary norms of behaviour…”, but these must not derogate the fundamental values of equality (the court refers to the Canadian Charter of Rights and Freedoms) and the “accused must have a justifiable sense of being wronged”. The court gives examples of how it would be apposite if the “ordinary person” included the relevant racial characteristics, had they been at the receiving end of a racial slur, but not homophobic characteristics had they been the recipient of a homosexual advance. Furthermore, it held that “there can be no place in this objective standard for antiquated beliefs such as ‘adultery is the highest invasion of property’ nor indeed for any form of killing based on such inappropriate conceptualizations of ‘honour’.”

We see in this decision that the court is making a conscious attempt to limit the attribution of certain characteristics in determining whether provocation took place. More specifically, the Court is acknowledging that they have to balance between accounting for human frailty and justice. It is trying to denude the power differentials that are ascribed to people just by virtue of their birth and belonging, as opposed to individual choices. Furthermore, the court by recognising that the “accused must have a justifiable sense of being wronged”, seeks to highlight that there ought to exist some legitimate harm, wherein legitimate has to be understood as a normative exercise constrained by institutional principles — which was accrued to the accused for the partial defence to be granted. But can we reconcile this approach with the manner in which we historically understand provocation as a category, i.e., if provocation is to be understood as a psychological question accounting for human frailty in the Indian experience, would placing social normative values be a plausible exercise? 

Is R v Tran possible in India?

Botswana’s High Court in State v. Segana Seleke [1974 (1) BLR 102 (HC)] made certain interesting observations about the Indian experience. While the court recognised that the English experience has applied “considerations of social morality to what in the final analysis is a psychological problem”, but in “many jurisdictions in India such a distinction, [issues] based wholly on the question of whether or not a relationship sanctioned and approved by the law exists between the accused and the other party to the adultery, is not countenanced.”

This observation of Botswana's court can be re-affirmed by (Kota) Potharaju [AIR 1932 Mad 25]. Here the accused found his “mistress ... in the arms of a former lover, lest control of himself and stabbed her”. The Madras High Court accepted a plea of provocation and held: “One cannot supply considerations of social morality to a purely psychological problem. The question is not whether the appellant ought to have exercised, but whether he lost control over himself. When a man sees a woman be she his wife or his mistress, in the arms of another man he does not stop to consider whether he has or has not the right to insist on exclusive possession of her person … she is a woman, of whose person he desires to be in exclusive possession and that is, for the moment, enough for him”.

This case was contested in Murgi Munda [(1939) ILR 18 Pat 101], where prevalent custom dictated that any unmarried man and woman may cohabit with each other, but if the woman is impregnated by a man, he must marry her. In this case, the deceased, Gansa, used to be in that kind of a relationship with Bandai, and when he moved away, she and Murgi entered into a relationship. The night when Murgi found Bandai and Gansa together, he killed the latter in rage, and then pleaded provocation in the Court.

Justice Fazl Ali and Justice Agarwal held that they disagreed with (Kota) Potharaju, since, “the mere fact that a person’s desires are thwarted does not in law justify him killing the person who is thwarting him. The provocation which is mentioned in the 1st exception to section 300, Penal Code, is something which is recognized as provocation in law and not merely something which arouses the uncontrollable anger of a particular individual.” Further, “In the case of a wife the position is entirely different. The law recognizes that a husband is entitled to expect fidelity from her”. And in the present case, their relationship was not one where Bandai owed him any form of fidelity. 

Murgi Munda further cited Palmer [(1913) 2 K.B. 29] to justify the need for fidelity in order to explore the nature of relationships which legitimately allow the defence of provocation. Palmer is important since the Court of Criminal Appeal held, “… the relation between the parties was not that of husband and wife, nor was it a case of unmarried persons living together as husband and wife. They were simply persons who were in the position of being engaged to be married. Under those circumstances if the effect of the summing up was to leave the jury under the impression that they could not properly find a verdict of manslaughter we think that it was right.” In both Murgi Munda and Palmer, we notice how the courts are eager to distance themselves from the kind of reasoning seen in Potharaju, as the courts are highlighting that there are certain relations which aren’t socially perceived as being as sacrilegious as others, and hence shouldn’t be entitled to the defence of provocation. Immediately, one suspects of whether the Indian courts are completely treating provocation as a psychological issue to begin with or not. Further, one wonders how Murgi Munda’s decision which relied upon the law recognising the husband’s entitlement of fidelity from his wife, would change after Joseph Shine [AIR 2018 SC 1676].

The second engagement between the High Courts which is relevant for the current issue can be seen by analysing Murugian and Jairam Chandrabhan. In Murugian [AIR 1957 Mad 541], Basheer Ahmed Sayeed J. observed, "But it should be noted that these decisions apply to the society in England and countries of western culture and civilization. It is well known that in western societies, marital laws and violations thereof are looked upon with such (sic) greater latitude and the award of damages in Civil Courts would constitute sufficient redress. Adultery is not made punishable as it is in our country where a more serious view is taken of offences against marital rights." However, in Jairam Chandrabhan [AIR 1959 Bom 463], where the accused murdered his wife as he saw her enter someone else's house and when confronted told the accused that she'd continue engaging in the relationship, the court disagreed with Murugian. The court held that “In our opinion, it would be extremely hazardous to apply the First Exception to Section 300 to a case of the kind we have here merely on the ground that offences against marital rights are made punishable by the law in India ... Bearing in mind the fact that adultery though frowned upon in our country is not uncommon in the village community and bearing also in mind the fact that even before the law made a provision for obtaining a divorce, a customary form of divorce has prevailed in the village communities, it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries.”

The court subsequently held that the offence would not constitute “grave and sudden provocation” for the accused to be given the partial defence from 300. Even though the court in Jairam Chandrabhan does not explicitly denounce adultery, it is anxious to allow violation of marital rights from becoming the sole ground for allowing for the partial defence to be granted. So instead of following the reasoning seen in R v Tran, the court tried to ignore the Indian courts’ approach of “cumulative provocation” and held that mere exchange of words between the accused and his formerly deceased wife—completely ignoring the act of adultery itself—couldn’t constitute as “grave and sudden” provocation. Even though Jairam Chandrabhan could be accused of compounding the confusion as it erodes “cumulative provocation”, the importance of this case is a) in its ability to recognise that violation of marital rights might not be enough to constitute provocation and b) given the widespread norm of adultery, the anxiety of male heterosexual violence which might be perpetuated if the partial defence is guaranteed. [Note: Jairam Chandrabhan also becomes important for it subtly challenges the assumption about the various attributes of the “ordinary person” (by questioning the distinction between village communities and western countries), while Indian courts attempt to be sensitive to cultural contexts. However, the implications of this observation are beyond the scope of this post.]

Indian courts have not resolved these questions directly and have more often than not continued to allow for adultery to be a ground for provocation. But from the above discussions, if there is a possibility of social morality becoming the guiding force of what we consider as “provocation” enough, it might be so that today when adultery is no longer a crime following Joseph Shine, instances of adultery in some cases might not be enough to be treated as an exception to 300.

Joseph Shine’s impact on Provocation

The main focus in Joseph Shine was constitutional questions posed by the adultery offence (Section 497 IPC) Even so, the various opinions made some extremely important remarks about how questions of adultery are in essence gendered questions concerning monogamy, sexual subjugation and treatment of women as property. For instance, Chandrachud J. noted that, “throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these”, and further, ”To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.”

While Section 497 IPC operated in clear gendered differentia, it might not be too difficult to claim that provocation as a defence in cases of adultery has empirically more often than not been used by men. By the court recognising that adultery being treated as a harm enough is an impediment to constitutional rights of women, one cannot help but wonder whether allowing adultery to be a provocation “grave” enough, ends up embedding the same stereotypes which allow for exercising control and dominion over a woman’s body? 

We are even more afraid when we take into account the importance that the judiciary has attributed to notions of property over the years. For example, in a case like Muthu, [(2007) 12 SCALE 795] where the victim was killed for merely throwing garbage into the property of the accused, we see the Court allowing provocation to be granted to the defence. Just like Muthu, we are worried that the courts are yet again placing undue premium on conception of property, especially from a man’s perspective, as opposed to recognising or at least deliberating the question of a woman’s control over her autonomous body. 

Framed otherwise, the above discussion leads to two questions: (1) While historically adultery had connotations of property, can we now move to a place wherein we recognise adultery as an autonomous private decision, and thereby limit the attribution of psychological provocation that courts have historically undertaken, and (2) Keeping in mind Palmer, Jairam Chandrabhan, Murgi Munda line of cases and R v Tran, do Indian Courts need to re-assess the question of provocation by recognising the need to balance human frailty with the normative horizons that criminal law wishes to achieve by altering human behaviour? These are both questions which the courts have to engage with seriously, for us to be able to have a just, clearer and more concrete understanding of provocation, as seen in exception to 300.

Guest Post: The Unchartered Territory of Customer Liability under Section 370-A IPC

(This is a guest post co-authored by Rupam Jha and Ashwin Vardarajan)

On 20th September, 2014, suspecting organised prostitution, the Telangana police inspected a colony located in Cyberabad, Telangana. They arrested two individuals, allegedly, for hiring prostitutes; and both were booked under Section 370A of the Indian Penal Code, 1860 [‘IPC’] that criminalises sexual exploitation of trafficked persons. Praying for the FIR to be quashed, the two accused, then, approached the Hyderabad High Court (‘HC’), contending that an offence under Section 370A was not made out against them. The HC, however, rejected this argument, observing, inter alia, that Section 370A takes “in its fold the customer[s] also.” [Naveen v. State of Telangana (2015)]. Three years later, the Karnataka HC in Pradeeban v. State (2018), confronted with the same question, noted that Section 370A “in no way attract[s] for punishment so far as the customers are concerned”. This contrast in judicial interpretation raises a pertinent issue, and it is in this light that we aim to discuss Section 370A IPC — to determine whether criminal liability of a customer [of prostitution] is intrinsic to this provision.

Legislative Genesis of Section 370A

The law pertaining to sexual exploitation of trafficked persons is broadly provided under two statutes in India: The Immoral Traffic (Prevention) Act, 1956 (‘ITPA’) and the IPC. In order to understand the conundrum of Section 370A we must undertake a brief study of its legislative history, which involves both these statutes.

An amendment bill to amend the ITPA, inserting, inter alia, Section 5C into the said act, was tabled before the Parliament in 2006. Section 5C of the bill provided punishment for any person “who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons”. This provision, quite visibly, criminalises the act of a person sexually exploiting a trafficked person, without adequately laying down the standards of intent or knowledge that the accused must have while engaging in such exploitation. The bill was, then, referred to the Parliamentary Standing Committee (‘PSC’). On 23rd November, 2006, providing its assessment, the PSC released the 182nd PSC Report. The report noted that the provision had received ‘mixed reactions’ — conveying the concerns of certain NGOs who believed that the provision fails to acknowledge the very likelihood of consensual and voluntary prostitution (para. 13.3). Further, the report put forth several arguments against Section 5C pertaining to, inter alia, how an accused person visiting a brothel would ideally not be able to distinguish between a trafficked and a non-trafficked person, there being no definition of ‘sexual exploitation’, and the potential harassment by the police of every person visiting brothels [See paras 13.6-13.8].

Then, in 2012, the Nirbhaya incident happened, which threw light on many lacunae in the framework of criminal laws in India especially sexual offences. Accordingly, the JS Verma Committee (‘JSVC’), tasked with the duty to recommend changes to the existing framework of criminal law, recommended several amendments to the IPC in its 2013 Report. In response to the need of “a comprehensive code to deal with trafficking and sexual exploitation (both commercial and otherwise)”, the Committee amended Section 370, and added Section 370A to criminalise the act of “employing” a trafficked person/minor for “forced labour” (p.172 & 439). The provision, as originally recommended, was also endorsed (at para.5.16.1) by the 167th Department Related PSC Report on the Criminal Law (Amendment) Bill, 2012. Notably, there was an unnamed member who opined that Section 370A should be confined to offences relating to ‘sexual exploitation’ and not ‘forced labour’ (para. 3.2.26). Section 370A (2) as proposed by the JSVC read as follows:

“Whoever, despite knowing, or having a reason to believe that an adult has been trafficked, employs such adult for labour, commits the offence of forced labour of a trafficked adult, and shall be punished with rigorous imprisonment for a term which shall not be less than three years but may extend to five years.” (Emphasis added)

However, when Section 370A was formally introduced vide the Criminal Law (Amendment) Act, 2013, its focus shifted from those employing trafficked persons into ‘force labour’, to those engaging in ‘sexual exploitation’ of trafficked persons/minors – thereby critically deviating from the amendment proposed by the JSVC. The inserted provision of Section 370A (2) now reads as follows:

“Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.” (Emphasis added)

The legislature offered no justification for this change. Further, in their move to alter the proposed Section 370A, the Parliament has brought back the concerns echoed by the PSC on the 2006 ITPA amendment bill. 

The Shallow Judicial Explication

In the backdrop of this alteration, the Hyderabad HC in Naveen held the customer, that is — in this context - the person who engages the services of a prostitute, may be tried under Section 370A — a decision that has since been followed quite a few times (illustratively, see here). In doing so, the courts implicitly raise either of the two presumptions against the customer: firstly, the accused's knowledge about the victim being trafficked; or, secondly, a reason for the accused to believe so. This eliminates the difference between a customer “who engages the services of the prostitute” and the individual who “engages such [trafficked] person for sexual exploitation”. What is more, such interpretation fails to take note of the element of volition, in so far as the sex worker is concerned, and places an arguably undue burden on the customer to conduct a backdrop check of the sex worker. 

Bewilderingly, in holding the “customer” liable under the provision, the Hyderabad HC in Naveen relied on the JSVC Report — observing that this interpretation fell in line with “the object with which the report was submitted”. As has been previously established, Section 370A bears no resemblance to the suggestion made in the committee report. JSVC suggested a provision criminalising the engagement of trafficked persons for forced labour, while Section 370A now criminalises engagement of trafficked persons for sexual exploitation. Therefore, it is unclear how the Courts reached the conclusion that they did, considering, particularly, that not once has the text of the bare provision been satisfactorily discussed in any case.

This difference in the judicial opinions of the Hyderabad and Karnataka HC (as discussed earlier) in this regard were brought to the notice of the Hyderabad HC in Mohd. Riyaz v. State of Telangana (2018). The petitioners contended that the decision in Naveen did not lay down the correct law under Section 370A — thus warranting reconsideration. However, the HC rejected this argument and held that a person coming to a brothel, or hiring a prostitute/sex worker, for participating in sexual intercourse “is said to have engaged in sexual exploitation” and may thus be liable under Section 370A. This explanation fails to consider the entire text of the provision. Put simply, Section 370A does not criminalise the very act of hiring a prostitute. Rather, it criminalises the act of engaging a trafficked individual for sexual exploitation. The interpretation offered by the Courts lends to the belief that hiring a prostitute, irrespective of the consensual nature of the act, by its very nature, is tantamount to sexual exploitation of a trafficked person. Now, although, Section 2(f) of ITPA, defines prostitution to include sexual exploitation, the key word for us to consider here in the text of Section 370A is trafficked, and the knowledge of the same. 

Moreover, as noted by the 182nd PSC Report, this allows the police the power to harass anyone who hires a prostitute, or goes to a brothel. Interestingly, Shashi Tharoor, during the Lok Sabha discussions on Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, too criticised Section 370A for being interpreted too “liberally by the Police and the courts, going well beyond the legislative intent of those provisions.”

Conclusion

To summarise, a literal interpretation of Section 370A is capable of encompassing customers – as prostitution is also considered a form of ‘sexual exploitation’. The catch here is whether the customer had ‘knowledge’ of him/her sexually exploiting a ‘trafficked’ person/minor. This determination of knowledge under Section 370A is seemingly difficult in comparison to other offences under IPC. Lastly, it has a detrimental effect on the rights of trade and livelihood of sex workers – as this interpretation directly discourages a profession (prostitution) which is not criminalised per se. It is pertinent, therefore, that this interpretative lacuna be looked into at length, and its implications be duly weighed by the courts in the future.

Guest Post: Trapped and Purged – the Foreigners Tribunal Regime in Assam and the Criminalisation of the citizen

(This is a guest post by Padmini Baruah)

The latter half of 2019 witnessed an uproar in India over a packet of legislation / executive policy consisting of the National Population Register [“NPR”], National Register of Citizens [“NRC”] and the Citizenship Amendment Act [“CAA”]. This NPR-NRC-CAA triumvirate sparked off a wave of protests against the violation of the foundational principles of secularism and equality as protected in the Indian Constitution. This was preceded by the release of the National Register of Citizens in Assam in August, 2019; an exercise designed to oust “illegal immigrants” which led to 1.9 million Indian citizens being excluded from its roster.

The fate of these people merits careful consideration; their status will be determined by Foreigners Tribunals [“FT”] in Assam. In this context, I examine the genesis of this notorious body, and how it has been operating as a quasi-criminal court over the past 5 decades.

The FT find their roots in the Foreigners Act, 1946. This Act defines a foreigner as a person who is not a citizen of India, and places the burden of proving that one is not a foreigner on the person themselves. Established through an executive order – the Foreigners Tribunal (Order) 1964 — the FT performs the task of filtering out whether or not one is a foreigner. Between 1985 till date, FTs have declared over 1,00,000 people as foreigners through processes that are arbitrary, and overstep the bounds of procedural fairness in multiple ways.

The FT Process

An FT process is initiated in two ways – through reference by the Assam Border Police and through the Election Commission of India’s identification of a person as a Doubtful Voter in the voting list.There are no guidelines determining how this reference is made — in my scrutiny of multiple Border Police references, I have seldom come across any grounds for suspicion. Procedural aberrations begin at this stage – to initiate proceedings, notice must be provided to the suspected foreigner, but, as an examination of High Court challenges to FT cases shows, in multiple instances, there is a failure to serve notices in a proper manner, meaning that many people are unaware that their citizenship is under scrutiny. Despite this clear breach of procedure, FTs forge ahead with ex parte proceedings, where people are declared foreigners without being provided the opportunity to present their case. Thus far, over 63,000 people have been declared foreigners in this manner.

It is pertinent to note that FTs are styled in the manner of civil court governed by the provisions of the CPC in terms of summoning and enforcing the attendance of any person, examining them under oath, discovery and production of documents, and the examination of witnesses. FTs have been given the flexibility of determining their own procedure; the Supreme Court has held that “…Tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act”

However, it is seen that FTs apply provisions of the Indian Evidence Act, 1872 in an extraordinarily stringent and selective manner, effectively applying the same standard as a criminal trial. Public documents proving citizenship, such as voter lists, are to be certified before submission. Sections 61—65 of the Evidence Act are applied to private documents; thus, critical identifiers such as residence certificate issued by the village headman, nikahnama, Panchayat certificate proving lineage with the father are rendered inadmissible in the absence of testimony from the issuing authority.

Women face the brunt of this disproportionately, as the system bases itself on the notion of patrilineal descent. Despite there being proof of women’s names appearing in voter lists, in the absence of proven linkage with the father’s side of the family, they are declared as foreigners. Moreover, deposition by family members (who are citizens) attesting to their relationship with the person accused is often disregarded, in clear contradiction to the principles of Section 50 of the Evidence Act. FTs also rule against persons on the basis of minor discrepancies in documentation, such as spelling errors and contradictory dates, disregarding all other evidence. They are strongly incentivised to declare people as foreigners, which contributes to their disregard of documents and testimonies.

Immcarceration

Finally, the repercussions of FT adjudications amount to criminal penalties. A person declared foreigner is stripped of citizenship, and rendered face to face with the prospect of detention as a prelude to deportation. Detainees fare worse than those convicted of crimes; in the absence of parole, access to work, healthcare or recreation, their existence is a testament to the “immcarceration” regime propagated by FTs. In the event that the person is not detained, they exist in limbo, with no citizenship, and therefore no access to any rights whatsoever.

The fact that a person is subject to such strict standards of evidence and procedure for a civil proceeding, failing which the consequences are so extraordinarily harsh is tantamount to a failure of the rule of law. Most people hauled up before the Foreigners Tribunals are from backgrounds where they can ill-afford proper legal representation. The FT regime leans towards making criminals out of those who are unable to prove their citizenship. This system reinforces the adoption of a crimmigration regime – the boundary lines between citizenship laws, procedures and practices and crime control strategies are increasingly blurring. The use of the law enforcement system in the form of the Assam Border Police to identify migrants, and the penalisation highlight the use of criminal law practices to regulate citizenship related offences. Procedural aspects have come to overlap for citizenship and criminal matters.

Through a combination of flawed procedure and arbitrary use of evidence law, they impose extraordinary consequences on those who are unable to navigate the complex tangle of bureaucracy and legal procedure. Given that most people who are brought before the FTs are from vulnerable socio-economic communities, the hurdles they face in the process are often insurmountable. FTs have made stateless criminals out of India’s own citizens without tangible proof of guilt. The system effectively ‘otherises’ and removes the offender from society, either through detention or deportation. This kind of societal removal is analogous to a criminal conviction, but without the presumption of innocence that the criminal justice system recognises and puts in place. 

Snippet: "Unlawful Activity", the 1967 UAPA, The Attorney General, and a "Ministry of Astrology"

India's primary anti-terror legislation, the Unlawful Activities Prevention Act 1967 ["UAPA"] continues to make headlines as a legislation reportedly used to stifle dissent and legitimate criticism of India's central government, even as the world grapples with the Coronavirus. This has, justifiably, prompted a rise in the conversations around the UAPA.

"Unlawful Activity"

A vast majority of these conversations about the UAPA focus on the provisions concerned with alleged "terrorist acts". But, originally, the UAPA was never designed to punish terrorism. Instead, it set out to create a new crime, of engaging in "Unlawful Activity". Section 2(f) of the UAPA as it originally stood [Section 2(o) today] defines this crime as follows:

"Unlawful activity", in relation to an individual or association, means any action ... 

(i)  which is intended, or otherwise supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory from the Union, or which incites any individual or group of individuals to bring about such cession or secession;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; [Emphasis supplied]

This is, by any stretch of imagination, a broadly worded definition. It is, I would argue, so broad as to take within its fold legitimate discussion and / or criticism of government policy, especially in connection with issues arising in border territories. This brings the definition of "Unlawful Activity" within the teeth of the constitutional guarantee to citizen's of a freedom of speech and expression. In a representative democracy where debates over government policy are constitutionally protected, how can a statute create crimes out of criticism?

The Joint Committee and the Attorney General

The seemingly anachronistic situation created by the UAPA generated heated debate within Parliament at the time. This was in no small means buttressed by the rise in power of regional parties, whose earlier espousal of secessionist agendas had in fact contributed to the government bringing in the UAPA. When the UAPA Bill was sent for examination to a Joint Parliamentary Committee [The report is available on the e-parliament library website], many members voiced their concern about the criminalisation of speech under this new law and the erosion of fundamental rights. 

To address any questions about the supposed unconstitutionality of the law, the government agreed for the Attorney General of the day, Mr. C.K. Daphtary, to depose as a witness before the Committee. Daphtary's endorsement of the UAPA before the Joint Committee was to become the cornerstone of the government's approach during the parliamentary debates over the UAPA. Any comment or suggestion about this law being unconstitutional would be swatted aside by invoking the Attorney General's by Home Minister Y.B. Chavan.

This, naturally, demands that we take a very close look at just what the Attorney General did and did not say when he appeared before the Committee as a witness on October 16, 1967. Three specific exchanges between Daphtary and the Committee, really stand out.

First, in his introductory remarks, Daphtary notes how he was "not called upon to express any opinion except the legal opinion one", and this opinion was that the law is "going as far as one can go." "These are drastic powers", the Attorney General acknowledged, and later on also made it clear that we must always assume that "those who are going to exercise those powers will do so honestly and properly. ... Whether that will be so or not, one cannot say." Later on, when B. Shankaranand noted that according to Daphtary the Bill is perfectly constitutional, the Attorney General quickly retorted: "Not 'perfectly' constitutional; I say, it is constitutional.

Second, and perhaps most engaging, was his reply to queries by P. Ramamurti. One specific exchange takes place as Ramamurti questions Daphtary's support of the Bill by referring to the Supreme Court's old decision in V.G. Row. Daphtary responds:

The outlook on fundamental rights and what is reasonable or proper protection has, as you are sure aware, gone through a series of changes in that particular court. There was a time in the beginning when the fundamental rights were quite firm. Then came a period when they were eroded and gradually Article 14 almost ceased to exist. Then again came a period when the fundamental rights were put up firmly and everything was properly tested. Perhaps we are again coming to a period when they will not be looked at as seriously as they used to be. ... Therefore the dicta of judgments do not carry us anywhere.

Third, and finally, at the end of this exchange itself, Daphtary expresses his lack of personal knowledge about the situation in various parts of the country that might justify the "drastic measures" of the law. Thus, he says, "I cannot go further than expressing my personal opinion." And this he does: "I think it is regrettable that the State has reached such a position that it is necessary to pass this legislation."

A "Ministry of Astrology" for Constitutional Questions

At one level, I am still astonished by the level of candour on display by Daphtary in his deposition before the Joint Committee.  Reading his replies, it becomes evident that his support for the UAPA was far from uncritical. In fact, it is almost tragic that the Home Minister somehow managed to use this deposition as the mainstay of his defence of any constitutional questions raised about the UAPA. After all, can it really be said that Daphtary defended the law? Daphtary merely said that a Court willing to look askance at fundamental rights questions might let the issues slide, which is not really a defence of any sort. 

As P. Ramamurti acerbically noted in his Minute of Dissent appended to the Joint Committee's Report, "What basis there is for this astrological forecast of the behaviour of the Supreme Court, he did not tell the Committee." If Parliament were to forsake the position of the law as it stood while considering the legality of any statutes and instead go by political forecasts on constitutional questions, Ramamurti notes, then "there must be a Ministry of Astrology in Government."

As history would have it, questions about the constitutionality of the UAPA provisions did not reach the Supreme Court once the law was passed in December of 1967, and so the astrological predictions of the Attorney General never got a chance to be tested.

[P.S.: Of course, if the conversations were to happen today, then the so-called "Ministry of Astrology" would also have to contend with an additional prediction besides that of a strong court or weak court taking up the case — that of an evasive one keeping it pending forever.]

Guest Post: Bail in Letters but not in Spirit — Karnataka High Court on Persons Accused under Foreigners Act, 1946

(This is a guest post by Mr. Basawa Prasad Kunale, Advocate)

The concept of bail emerges from the conflict between the police power to restrict the liberty of a person who is alleged to have committed a crime and the presumption of innocence in his favour. The State, in its anxiety to protect its subjects from the onslaught of criminals, has invested the police with powers of arrest and approaching the criminal courts with a prayer for keeping the accused in custody, for the purpose of keeping the accused present at the time of trial and to prevent the accused person from tampering with the evidence. However, it would be not only improper but also unjust to keep an accused person under custody of the State with the object of punishing him before the conclusion of the trial, this in fact defeats the entire purpose of the trial.

Therefore, while answering the question whether to or not to grant bail to a person, it is for the judges to balance the State’s power to restrict an individual’s liberty with the constitutional protection of personal liberty.In Indian bail jurisprudence it has been established that bail is a rule and jail is an exception. This has been recognised as a rule for not only against alleged heinous offences committed on other person but also in alleged serious offences against the State. Section 439 of CrPC along with several other provisions under special enactments entrusts power upon the High Court or Sessions Courts to grant bail, in order to recognise liberty of an individual from States authority. The principal rule to guide release on bail is to secure the presence of the applicant who seeks to be liberated, along with the principles established by various judicial precedents and guidelines, as summarised below, which are to be taken into consideration while exercising this power: 

1. The nature and gravity of the circumstances in which the offence is committed;
2. The position and the status of the accused with reference to the victim and the witnesses;
3. The likelihood of the accused fleeing from justice;
4. Possibility of tampering with evidence; and
5. Chances of repeating the offence.

In its recent decision, the Hon’ble Karnataka High Court, while deciding on the issue of grant of bail under Section 439 of CrPC, restricts the liberty of the accused, by going beyond the powers conferred the said provision. In the case the Petitioners approached the Court under Section 439 of CrPC, for being arrayed as accused under Section 14A and 14B of the Foreigners Act, Section 25 of the Indian Arms Act, 1959 and Section 34 of the Aadhaar Act, 2016.While deciding the petition, the Hon’ble Court in Para 51 of the judgment acknowledged that there exists no specific bar to grant bail under Section 439 of CrPC for persons accused under the special enactments governing foreigners, especially the Foreigners Act, 1949, unlike under section 37 of the NDPS Act and section 43D (5)of the UAPA, which permits bail only in limited circumstances. However, the Court was of the view that the persons accused under Foreigners Act cannot wander around the country freely, as if they are citizens, once the bail has been authorised by the Court as such an authorisation cannot be considered as license to move around the country. Therefore the Court being of the opinion that there were no specific guidelines in this context as to how accused persons under Foreigners Act, 1949 should be treated during the course of investigation, inquiry, trial, and after acquittal or conviction by the Courts, the Hon’ble Court laid down exhaustive 16 point guidelines [Para 112], concerning the manner of enquiry under the Foreigners Act, conditions of detention centres and of the inmates along with many others, for the Courts and the competent authorities to follow while dealing with persons facing proceedings under the Foreigners Act, 1946.

However, for the purpose of this article, we will look at guideline no. 4 laid down by the Court, which reads as follows:

(4) If for any reason the Court grants bail including anticipatory bail, in any criminal case where the offender is a foreign national, and the offence are under the Foreigners Act and/or also under any other Laws for the time being in force, and their Visa is cancelled or lapsed, or they have no Passport, or they are illegal migrants, then Courts shall specifically order to keep them in detention centres, unless the competent authority has passed any order under section 3(2) (a) to (f) of the Foreigners Act, 1946, or till further orders of the Court or till they are deported to their mother country.

Before going into the legality of this guideline, it is important to examine the relevant statutes governing the detention of the Foreigners. Section 3 of the Foreigners Act, 1946, empowers the Central Government to make Orders for the purpose of prohibition, regulation, or restriction of the entry of foreigners, into India, or their departure therefrom or their presence or continued presence therein in the manner provided under Section 3(2)of the said Act, including arrests and detention or restriction of movements.

In Para 66 of the judgment, the Court records that this power came to be delegated to State governments and Union Administrations under Article 253 of the Constitution through a notification issued in the year 1958, wherein now these authorities were entrusted with the power to restrict the movements, arrest and detention or confinement of Foreigners.

However, in order to exercise the power under section 3 of the Act, it is important to determine as to who is a foreigner. This determination of whether the person is a foreigner has to be done, in consonance with definition a foreigner under section 2 (a) of the Foreigners Act, 1946, which states that a person who is not a citizen of India is a foreigner and further in order to determine whether a person is a foreigner, the Tribunals are constituted for this purpose, under The Foreigners (Tribunal) Order, 1964. 

The said Order of 1964(except procedures for the State of Assam are different), empowers the Central Government or State Government or the Union Territory administration or the District Collector or the District Magistrate, to refer the question as to whether a person is not a foreigner within the meaning of Foreigners Act, 1946 to a Tribunal. The said Tribunal shall have all the powers of Civil Court while trying the suit under the Code of Civil Procedure and while exercising such power it shall give enough opportunity to the person whose Indian citizenship is in doubt before arriving at an opinion, by way of issuing notice, providing opportunities to produce evidence and hearing arguments, and then submitting its opinion to the officer or authority in the order of reference.This opinion of the Tribunal is of paramount importance, since this opinion, by way of determining if a person is foreigner, also determines the citizenship rights of a person. It is based on this opinion of the Tribunal that a person is foreigner that the competent authorities under Section 3 of the Act will take appropriate actions as laid down in Section 3(2) of the Act, including arrests and detention or restriction of movements of the said person.

This being the law of the land, let us come back to guideline no. 4 in question.We see that the Court presumes that every person who is alleged to have committed an offence under any special enactments governing foreigners or the under the Foreigners Act, is a foreigner, and by doing so, it denies such persons of entire procedural safeguards provided in the Foreigners (Tribunal) Order, 1964.

Right to approach under Section 439 are infructuous: As mentioned earlier the power to grant bail is with sole objective of recognising the liberty of persons from State’s authority over restricting it, however the said guideline makes this power entrusted upon the Courts under section 439 of CrPC infructuous, as in lieu of this guideline, if a person has been granted bail, he continuous to be detained in the detention centres established under Section 3(2) of the Foreigners Act, making it pointless for a person to approach the Courts for bail. Furthermore, it is important to note that there is no enactment which empowers Courts to keep a person in continuous detention even after bail has been granted, let alone Section 439 of CrPC.

Violation of “Procedure Established by Law”-Article 21 of the Constitution guarantees every person, irrespective of their nationality, right to life and liberty, except for procedure established by law. For the purpose of this article, the procedure established by law to detain persons under the Foreigners Act, is entirely authorised upon the Central Government, State Governments or to the Union Administrations. It is important to note that not even a quasi judicial adjudicating body, i.e. the Tribunal constituted under the Foreigners (Tribunal) Order, 1964, has the authority to detain a person if in its opinion such person is a foreigner. Such being the situation, the guideline under scrutiny, goes beyond the procedure established by law and continuous to detain the persons who has been granted bail and denies liberty to him without authority of law, thereby violating Article 21 of the Constitution.

The National Registry of Citizens, under the under the Citizenship Registration of Citizens Rules, 2003 has been severely criticised for not providing any criteria or details that would be necessary for entry into the said registry of citizens and instead leaves it to the whims and fancy of the local Taluk level officers to make such decisions.The appeal process within the rules, in case of exclusion from the registry, being mere procedural provision, does not provide any safeguards to the persons preferring appeal in the form of providing sufficient time period to prefer such appeal as well issuance of notice or issuance of such order of exclusion from the list. Further the said rules are also silent with regard to the status of persons who would be excluded from the registry, giving a free hand for the police authorities to register baseless FIR’s under the Foreigners Act against such persons. The victims in this entire process will be persons who are unable to make any kind of socially and economical influence, which would play an important role for entries in the registry of citizens and to escape the possible abuse of powers under the police authorities. Adding to all this, the guideline no. 4 under scrutiny will only be one more hurdle for this disadvantaged group, whereby now bail will only be in letters but never in spirit.

Guest Post: Silence and 'Pragmatism': Skirting the Bail Conditions in the UAPA

(This is a guest post by Ms. Nitika Khaitan, Advocate. The author thanks Jawahar Raja and Chinmay Kanojia for their help as always with locating UAPA orders; and Sanya Kumar and Megha Bahl for their incisive comments.)

The denial of bail to Safoora Zargar last week drew fresh attention to harsh conditions in the Unlawful Activities Prevention Act 1967, which make it exceedingly difficult to secure bail. Under S. 43D(5) of the Act, no person accused of certain UAPA offences can be released on bail if the court finds reasonable grounds to believe that the accusations against her are prima facie true. Amidst overly broad definitions of these offences, and a low prima facie threshold, how then have courts granted bail? Sometimes, by narrowly interpreting offences or holding that the evidence against the accused is contradictory. At other times, as is the focus of this post, by simply leaving out any mention of the Act or its mandate altogether.

In 2016, for instance, the Supreme Court granted bail to the Dalit activist Angela Sontakke, accused of being a member of the Communist Party of India (Maoist), which is banned as a terrorist organisation. The Bombay High Court had earlier held that her bail was barred by S. 43D(5), since she appeared to be an active member unlike some of her co-accused (who had thus been granted bail by a different High Court bench). While allowing Sontakke bail, the Supreme Court order records that she is charged with offences under Chapters IV and VI of the UAPA, which attract S. 43D(5). But the order doesn’t mention the section. It doesn’t even briefly refer to the evidence against her, let alone record a different prima facie finding from the High Court’s. It speaks merely of balancing the serious charges against her with the facts that she is a woman, has spent years in custody and has yet to see her trial begin.

This is far from the only order that reads as if S. 43D(5) doesn’t exist. In 2017, while granting bail to three Kabir Kala Manch activists accused in the same case as Sontakke, the SC doesn’t even mention the UAPA. Other orders mention just the section number. In the 2017 bail plea of Malegaon blast accused Lt. Col. Prasad Shrikant Purohit, his counsel contended that S. 43D(5) wouldn’t apply since the blast occurred before the amendment that enacted the section. The SC order holds that this plea must be considered at the time of trial and not now. Without excluding the application of S. 43D(5) though, the SC proceeds to effectively ignore it. (The judgment also, oddly, refers to the state as having “rights” to investigate, instead of calling it what it is, a power.)

The SC’s reasoning for granting him bail reads like an order under ordinary law. The SC refers to prima facie satisfaction in support of the charge as one of the factors to consider (true for regular bail), not as the factor that S. 43D(5) elevates above all else. The only other time the Court uses the phrase is in holding that there is a “prima facie case for release on bail,” decidedly not the finding it is mandated to return. Attempts to hunt for the missing reasoning elsewhere in the order fail. The SC does say that there are “variations” and “material contradictions” in chargesheets filed by different investigating agencies (this was also discussed in the Bombay HC order granting bail to another Malegaon blast accused, Pragya Singh Thakur). But before one can infer that this is what led the SC to believe a prima facie case wasn’t made out, the order promptly states that these contradictions too need “to be tested at the time of trial and this Court cannot pick or choose one version over the other.” Almost as if to overcompensate for its missing finding on the evidence, the order repeats thrice on the same page that “at the stage of granting bail, a detailed examination of the evidence” need not be undertaken. (The general proposition is correct, but as held by the SC in the context of another law imposing similar restrictions on bail, “The duty of the court at this stage [of bail] is not to weigh the evidence meticulously… However, while dealing with a special statute… the court may have to probe into the matter deeper”). The order ends by going beyond the usual caveats and emphasises that the grant of bail here “shall be no consideration for grant of bail to other accused persons in the case.”

In none of the cases above did the Court say it was using its extraordinary powers to grant bail where other courts, in light of S. 43D(5), would have been unable to. How do we read the Court’s silences in these orders? Explicitly engaging with S. 43D(5) of course has its pitfalls. As the Andhra Pradesh HC recognised, at the stage of bail, taking the view that the accusations against an accused are not true could dent the prosecution; while taking the opposite view may be akin to “pre-judging the charges.” But even if we allow for the possibility that the Court wanted to refrain from making any observations that would influence lower courts, to not even mention S. 43D(5) in an appeal from a HC that has rejected bail on these grounds goes too far. That this violates the Supreme Court’s own pronouncements is trite. See, for instance, its 2019 decision making clear that courts must apply their mind to the prima facie truth of the accusations. More importantly, while the SC’s orders above indicate an obvious unease with the years in custody that harsh bail conditions inflict on people, they also reflect an unwillingness to fix this unease with anything besides ad-hoc measures, falling far short of the jurisprudence a constitutional court could choose to build.

In the cases above, long years of incarceration played a key role in the Court’s reasoning in favour of bail—over five years for Sontakke, close to four for the Kabir Kala Manch activists and eight years and eight months for Purohit. (This same concern, and elision of the S. 43D(5) mandate, is evident in some High Court orders as well. A 2019 Bombay HC decision, for instance, partly engages with the lack of grounds to prima facie believe the allegations made for certain offences. But for other alleged UAPA offences, the HC simply states that they are punishable with merely two, seven and ten-year imprisonment terms, and the accused had already served nearly four years in jail.) In implicitly acknowledging the injustice of such pre-trial incarceration, while refraining from any systemic change, these SC orders mirror its earlier decisions in the context of other laws with onerous bail conditions.

In 1994, in the context of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the SC noted that “to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable” and “if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.” But noting also that the constitutionality of similarly restrictive bail provisions in the Terrorist and Disruptive Activities (Prevention) Acts, 1985 and 1987 (TADA) had been upheld earlier that year, the Court asks itself, “What then is the remedy?” The Court passes a “one-time” order. It directs all undertrials charged with certain offences to be released on bail, if they’ve spent a certain number of years in custody. The Court says that given the percentage of acquittals under the Act, “we cannot be oblivious to the fact that many innocent persons may also be languishing in jails.” But nothing in the order of course was “intended to interfere” with the future grant of bail by lower courts, which would continue as restrictively as before and presumably also lead to many innocent persons languishing in jails till another one-time SC order.

In a similar order two years later in the context of TADA (Shaheen Welfare Association v. Union), the Court even more explicitly recognised that “when the release of undertrials is severely restricted as in the case of TADA” and a speedy trial is “not practical, release on bail… may, in some cases, be necessary to meet the requirements of Article 21.” Acknowledging that “many of the under-trials may be found to have completed the maximum punishment provided by law by being in jail without a trial,” the Court again offered a “pragmatic approach” / “one-time measure.” The Court divided TADA undertrials into different categories based on whether they were roped in for possession offences or overt acts directly attracting TADA sections, or by virtue of vicarious liability and conspiracy provisions; and directed release on bail on different conditions for each category. The Court recognised that it was overriding the ordinary operation of TADA by creating these classes but held that “while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick.”

What of pragmatism and justice post the one-time measure then? In Shaheen Welfare Assn., the Court recognised that stringent bail conditions “can be justified… on the presumption that the trial of the accused will take place without undue delay.” The Court had then focused on the inadequacy of Designated Courts set up to try TADA cases as the cause for this undue delay. But gross delay is of course pervasive, not exceptional. While upholding TADA’s constitutionality, the Court had also recognised that TADA was often unscrupulously invoked merely to deny bail. It stopped, however, at terming this sheer “misuse and abuse” and merely exhorting prosecutors and courts to do their job better. But what of the extensive material to show that misuse and abuse are woven into the provisions of extraordinary laws? Particularly in the context of the current repository of most of TADA’s provisions, the UAPA, under which the ‘independent’ authority set up to sanction prosecution is appointed by the executive itself.

Despite repeatedly being confronted with the reality that onerous bail conditions equal years of incarceration without guilt, courts have more often than not resorted to elision and ad-hocism. In a series of decisions from November 2019, the Punjab and Haryana High Court called this out. These decisions were delivered in the context of harsh bail provisions for some offences in the Companies Act, 2013, which prohibit release on bail unless the court is satisfied of reasonable grounds to believe that the accused is “not guilty” of the alleged offence amidst other conditions. The High Court orders state that there is an “inconvenient question, which has not been shown… to have been answered by any court so far, including the Hon’ble Supreme Court. The question is - for how long an accused can be kept in custody on the basis of non-fulfillment” of restrictive bail conditions? The HC order decries “unfortunate situations where a court may not even find the moral courage or the legal sanctity to tell to the accused that he shall have to wait in custody till conclusion of the trial, despite and in face of the legislative policy contained in provisions of Section 436A of the Cr.P.C.” S. 436A of the CrPC mandates the release of under-trial prisoners if they have been incarcerated for half the maximum term of imprisonment for their alleged offence. S. 436A itself carves out an exception for offences punishable with death, but non-obstante clauses in special laws like the UAPA exclude the benefit of S. 436A even for offences punishable with imprisonment for three years. Despite such non-obstante clauses, the HC emphasises that years of custody without trial “cannot be used to curtail the liberty of an accused in violation of Article 21” and poses more inconvenient questions—“In such a situation the court would do substantial justice; or would stick to the [bail] conditions…Even if the courts are to stick to such condition; then how much injustice to the accused would be sufficient to off-set or to balance” the conditions? The HC goes on to hold that unless these questions are “categorically answered to say that till the conclusion of the trial such a person cannot be released on bail,” the onerous conditions cannot be held to be mandatory. (Also see the same bench’s 2018 decision with respect to NDPS cases).

In the context of the UAPA as well, certain High Courts reflect a more sustained engagement with these questions. In a 2014 decision, the Andhra Pradesh HC lays out, colourfully, the cautious and delicate approach needed with provisions like S. 43D(5), comparing it to “the care which a cat is expected [to take] while carrying the kitten in its mouth from one place to another.” The order dilates for several paragraphs on motivated prosecutions; emphasises that “an accused cannot be equated to a convict, even before the trial is conducted;” and goes on to lay out guidelines for courts to appropriately form the prima facie opinion required by S. 43D(5), while taking concerns of liberty seriously.

Such guidelines ultimately may not make too much of a difference—the inherently low threshold of S. 43D(5) no doubt ties the hands of lower courts. Till more authoritative pronouncements on these bail conditions, thus, the road ahead looks bleak. But as I’ve argued in the context of a different set of provisions under the UAPA, judicial logics often defer to state ones with anti-terror laws, accepting the need for extraordinary measures to combat ‘extraordinary’ threats, and making any such authoritative pronouncements unlikely. The history of personal liberty, as a judge from another time had said, is largely the history of insistence upon procedure. Not so with S. 43D(5), where liberty has oft been secured by ignoring it.