Guest Post: A 'ubiquitous power disparity' - on the discharge order of Sharjeel Imam, Asif Iqbal Tanha & ors.

(This is a guest post by Gautam Bhatia, cross posted with permission from the ICLP Blog)

On the ICLP blog, we have discussed in some detail various judicial proceedings that have arisen out of the events of late 2019 and early 2020, commonly referred to as the “Delhi riots cases.” Most of these cases have involved bail applications under the Unlawful Activities Prevention Act [“UAPA”]. The judiciary’s conflicting orders in these cases (sometimes handed down by the same judge) have reflected a deeper tension in how our courts engage with the UAPA. 

There is a pro-liberty strain of judgments that subjects the State’s case to a degree of scrutiny, and refuses to fill in the gaps in the chargesheet through inferences and assumptions (see the bail order in Asif Iqbal Tanha); but there is also a pro-executive strain that does the exact opposite (see the bail orders in Safoora Zargar, Umar Khalid (I) and Umar Khalid (II). 

In this context, the discharge order passed by Additional Sessions Judge Arul Varma, on 4th February 2023, in another of the Delhi riots cases, is an important addition to the pro-liberty strand. At the outset, we must note two features which distinguish this case from the bail cases discussed above. First, the case did not involve UAPA offences, and was limited (for the most part) to more benign offences under the Indian Penal Code. And secondly, the case was not about bail, but discharge. 

This very fact, however, is what makes the order significant: when a judge is deciding whether or not to frame charges against an accused, they must decide whether “there are sufficient grounds to proceed,” on the basis of the police chargesheet. Readers will recognise that this is a standard somewhat (although not entirely) similar to the prima facie standard under bail proceedings under the UAPA. Therefore, even if the case itself did not involve UAPA offences, Arul Varma J.’s reasoning is nonetheless significant and instructive in thinking about those cases where the UAPA is applied. 

Indeed, the facts of the case show striking similarities with the UAPA cases that have arisen out of the Delhi riots (some of the protagonists – such as Sharjeel Imam, Safoora Zargar, and Asif Iqbal Tanha – are also arraigned in UAPA cases). The basis of the police case was that a protest organised in the area of Jamia University on 13th December 2019 – with the avowed objective of marching to Parliament to oppose the Citizenship Amendment Bill – turned violent, with stones being thrown at the police, and the deployment of tear gas. According to the chargesheet, the accused were all present at the scene, and were part of a common object and conspiracy to breach prohibitory orders and engage in an unlawful assembly. 

The Court found, however, that at no point had it been alleged or shown that the accused persons had committed any overt act of violence. This, then, raised the question of whether the presence of the accused in an assembly that had allegedly turned violent and broken the law, was sufficient to charge them under the unlawful assembly provision of the IPC. 

Readers will recall that in the bail cases that we have flagged above, the facts were often similar: there was no overt violent act that could be attributed to an accused person, and therefore, the question boiled down to the extent to which the Court was willing to bridge the gap between the legal overt action (a speech, or presence at the scene, or the exchange of WhatsApp messages) and the allegation (conspiracy to commit riots, to engage in an unlawful assembly, etc.)

Arul Varma J, however, gave short shrift to any suggestion that it was the Court’s task to fill in the gaps in the prosecution’s case. He repeatedly noted that the Prosecution had failed to show any overt act – beyond presence – from which it could be legitimately inferred that the accused shared a common object. Following Supreme Court precedent, Arul Varma J noted that the standard was one of actual knowledge: that is, the accused persons should have known that an offence was likely to be committed in the course of the unlawful assembly. In this case, however: 

There is no evidence on record which reflects that the accused herein were even aware that other protestors were armed or not. The accused were protesting against a piece of legislation, and sloganeering against enactment thereof. Positive knowledge that their sloganeering would result in such a maelstrom, is something that cannot be attributed to them sans any cogent proof. (paragraph 33)

While this may sound like basic common sense, it is significant in the present context. Recall, for example, that while denying bail to Safoora Zargar (see above) – despite the fact that no overt act of violence had been attributed to her – the trial court had noted that “when you choose to play with embers, you cannot blame the wind to have carried the spark a bit too far and spread the fire.” In other words, the trial court in that case had dispensed with any causal link between the accused’s act (a protest speech) and what the accused was in the dock for (riots). 

As is obvious, this standard expands the bounds of liability to an infinite degree, and stretches the concept of individual responsibility (arguably the backbone of criminal law) to the vanishing point.

Arul Varma J.’s order, on the other hand, showed a keen awareness of this problem. As he noted, relying upon Supreme Court precedent, protests are fluid events, and it is not the case that everyone who joins a (peaceful) protest that subsequently turns violent, has a common object of fomenting violence. 

To draw that link, there must be evidence of at least some overt act that casts light upon the object of the accused; however, if the accused’s presence at a protest that later turned violent was sufficient, then this – as Arul Varma J noted – would entirely collapse the distinction between (legitimate) dissent and (illegitimate) insurrection. 

It would, essentially, make the accused “vicariously liable for the acts of the mob” (paragraph 34). Relying upon the Supreme Court’s judgment in Masalti, Arul Varma J held that in these kinds of cases – involving mass protests – one would need to have more than one, consistent account of exactly what the accused did, in order to attribute a common object to them. This had not happened, and indeed, the Court came down heavily on the police’s attempt to improve its own case by filing a third chargesheet when the arguments on charge were almost over. Consequently, Varma J held: 

It is apparent that the police has arbitrarily chosen to array some people from the crowd as accused, and others from the same crowd, as police witnesses. This cherry picking by the police is detrimental to the precept of fairness. (paragraph 38)

For the same reasons, the Court held that the case of conspiracy – which required a meeting of minds – had also not been met. 

Finally, in his concluding remarks, Arul Varma J framed the issue as one where the State was obligated to draw a clear line between dissent and insurrection, especially in the context of protests like these, where the prosecution sought to blur them. 

Furthermore, such a police action is detrimental to the liberty of citizens who choose to exercise their fundamental right to peacefully assemble and protest. Liberty of protesting citizens should not have been lightly interfered with. It would be pertinent to underscore that dissent is nothing but an extension of the invaluable fundamental right to freedom of speech and expression contained in Article 19 of the Constitution of India, subject to the restrictions contained therein. 

It is therefore a right which we are sworn to uphold. As laid down in P Vijayan (supra), this Court is duty bound to lean towards an interpretation which protects the rights of the accused, given the ubiquitous power disparity between them and the State machinery. (paragraph 45)

Apart from everything else, the last line is particularly important, as it constitutes a rare acknowledgement by a court that where two interpretations are possible, the judiciary – as the protector of fundamental rights – should lean towards the accused, given the immense structural power difference between the State and the individual. Indeed, one can see this underlying philosophy present throughout the order – in particular, in the Court’s refusal to fill in the gaps in the Prosecution’s case, and to insist that there be a demonstrable link between the act and the offence, one that requires something more than assumptions, inferences, and allegations of conspiracy to fill. 

One might be present at a protest and one might participate in a protest, but that does not automatically make one vicariously liable for every illegality committed in the course of that protest. To hold otherwise would be to outlaw protests themselves, and to turn Article 19(1)(a) into a dead letter. It is this fundamental insight – regrettably missed by so many courts in so many Delhi riots cases – that Arul Varma J grasped, and articulated it in pellucidly clear terms.

Guest Post: The Vexed Issue of the Appointment of Special Public Prosecutors

(This is a guest post by Mr. Divyang Thakur. Views are Personal. His earlier posts on the Blog can be accessed here)

Disclaimer: I have no personal knowledge of any of the facts/charge sheet/investigation conducted in any of the cases mentioned by virtue of my post. This article is written from a purely academic perspective based on facts in the public domain.

INTRODUCTION

In February 2020, riots broke out in New Delhi. There was significant loss of life and property. Multiple FIR’s were registered under various sections. Investigation was conducted by the Delhi Police (Investigating Authority) and multiple persons were arraigned as accused and taken into custody.

Over the past few months, a tussle has emerged between the Central Government and the State Government with respect to the appointment of Special Public Prosecutors in the cases which are now colloquially known as “Delhi Riots Cases”. Multiple orders have been passed by the Hon’ble Delhi High Court in this relation. I do not propose to analyse the statements made by various functionaries involved, nor discuss the orders passed in this relation by the Delhi High Court.

However, at the outset I would like to humbly submit that (i) there is no doubt at all about the legal proposition that it is only the Government of National Capital Territory of Delhi which can appoint a Special Public Prosecutor for offences committed within its jurisdiction and being tried by the Courts in Delhi; (ii) it is also no more in doubt that the Lieutenant Governor of Delhi cannot differ from the recommendations made by the Council of Ministers in all but the rarest of rare cases where it is imperative to uphold the Constitution. The authority for the first statement of law is the decision of the Delhi High Court, and for the latter is the decision of the Supreme Court. In that respect, though much has been made of the so called “tussle”, the position from a legal point of view is well established. 

Rather, in continuation of my previous posts, I wish to highlight the issues in respect to the State’s prerogative to appoint Special Public Prosecutors in cases of its choosing. I will lay down briefly the basic argument that the State can only do so in limited and rare cases, where there is an actual conflict of interest, and not for any other reason. Any other view, especially one which supports the State’s unfettered prerogative to appoint a Special Public Prosecutor as per its whims and fancies undermines the rule of law. 

WHY MAINTAIN A PERMANENT CADRE OF PUBLIC PROSECUTORS?

We have to go back to the basics first, and consider the rationale behind having a permanent cadre of Public Prosecutors appointed by the State.

The position (for which my earlier posts can be seen) can be summarised thus: A Public Prosecutor is a Public Office. The raison d'etre of the existence of this Office is (i) Impartiality and (ii) Independence – at the very least. A Public Office is a repository of the faith of the public that the State will treat them fairly and equitably, especially in matters of criminal justice. 

A Public Prosecutor is to be differentiated from a Standing Counsel appointed by a State Government or the Central Government to argue its brief. Though Public Prosecutors are appointed by the State Government, this will not mean that they are to take instructions from the appointing authority with respect to the conduct of the case. This is an extremely crucial difference and I invite the reader to mull this over.

As a sidebar, and in response to the above noted ongoing “tussle”, it is necessary to note that the Investigating Agency, i.e. the Delhi Police, cannot field a lawyer to assist the Prosecution, or even worse, act as a Prosecutor. This is for the reason that the Investigation Agency has a prima facie conflict of interest – in fact this is the reason that the Police and Prosecution have been separated in the first place by removing the Prosecution from the subordination of the Police. The argument that the “Delhi Police has an interest in the outcome of the case” is ridiculous because this so called “interest” is precisely why the prosecution is supposed to be conducted by the Public Prosecutor, so he may take into account facts which may even lead to the acquittal of the accused and can also lead to an unfavourable observation against the Investigating Agency. Moreover, even if we assume that the lawyer fielded by the Delhi Police would be dispassionate and impartial, such arguments violate what I like to call a first principle of the law – Justice shall not only be done but seen to be done. 

In fact, it is this very maxim of law that is the genesis of the office of the Public Prosecutor, so that the State is not seen to be appointing officials whose employment and standing are at the mercy of the said State, but rather officials who have permanency in tenure, and cannot be removed for placing the true facts of the case before the Court which might not be to the liking of the Investigative Agencies. Therefore, in the State of Delhi, a regular cadre of Public Prosecutors is maintained, who are selected in open competition by the Union Public Service Commission. They are not selected keeping a specific cause or case in mind. This is another crucial point – and another aspect in which the basic maxim of law noted above is upheld – Public Prosecutors are selected on the basis of their qualifications, experience and performance in the exam and not solicited for a specific trial. An argument could be made that the selection procedure could be bettered – but that is not my point at the present. The public faith in the system is kept secure by ensuring that persons to a public office are selected by an impartial agency which is what the function of the UPSC is – even if the Investigation Agency wants a particular result, there is supposedly a Public Prosecutor appointed through an open competition, handling all cases of that particular district/Police Station/area in an impartial and unbiased manner.

REASONS FOR APPOINTING AN SPP: SPECIAL CASES, HEINOUS CRIMES, EXPERIENCE, CAPABILITY AND OTHER REASONS CITED IN FAVOUR OF APPOINTMENT OF SPECIAL PUBLIC PROSECUTORS IN DELHI RIOTS CASES

To my understanding and experience the only occasion that a Special Public Prosecutor should be appointed in place of the Regular Prosecutor appointed to a certain Court is if there is a conflict of interest – which can arise in my experience in the following situations – (a) The Public Prosecutor acted as a Defence Counsel in the said matter; (b) The Public Prosecutor has relations to the IO or the accused or the informant or the victim; (c) The Public Prosecutor is related to/has personal relations with the Presiding Judicial Officer. I can think of no other situation that would necessitate the appointment of a Special Public Prosecutor and that too someone who is not already working in the permanent cadre of Prosecutors. As a thought experiment, I invite readers to point out any other valid reasons for the appointment of a Special Public Prosecutor. 

The arguments put forward by the Government (Central and State, though I don’t see how the Central Government can have a role to play in the first place) are that the Delhi Riots Cases are heinous in nature, consist of peculiar facts and circumstances and require expertise of a higher level and also that the regular cadre of Prosecutors are not equipped to handle such cases. This argument is flawed because – (a) it’s not clear why the Delhi Riots Cases are more heinous in nature as compared to offences/cases which are tried regularly in the Courts of Metropolitan Magistrates and Sessions Court; (b) there is no reason to believe that there is an expertise required for the Delhi Riots cases which is not required for the other “not-so-special” cases which are regularly handled by the regular cadre of Public Prosecutors; (c) in any case the Governments (State and Centre) have not given any reasons for the appointment of the particular lawyers who have been appointed as Special Public Prosecutors – on what standards has their performance been evaluated? How many cases have they handled as Prosecutors?

A perusal of the reasons for the appointment of Special Public Prosecutors will clearly show that there is no yardstick for why the Delhi Riots Cases are more special- and there should be, because the appointment of a Special Public Prosecutor is a significant departure from the norm. Imagine, for a moment, if you will, if the State started to use these arguments to appoint persons who are not part of the Delhi Judicial Services or Delhi Higher Judicial Services as Judges in “special” cases. It is unthinkable. The judiciary has insulated itself, comparatively, from such high-handed adventurism. Then why are Special Public Prosecutors being appointed in a routine manner, for insufficient and clearly extraneous reasons? In my humble opinion, a departure from the norm should be justified on the basis of valid reasons. The State has not met such a standard in the Delhi Riots cases.

CONCLUSION

The outcome of the prosecution in the Delhi Riots Cases remains to be seen, but the principles of law have already been undermined by the appointment of Special Public Prosecutors who are not part of the permanent cadre in these cases. I have already explained why, when it comes to the appointment of a Prosecutor, the State should not be seen as having the unfettered right to appoint who they wish to, as compared to the State’s right to appoint a Standing Counsel to argue its brief where the State is a party. Though all criminal matters are titled as “State of ABC v. XYZ” but the State is not a party in the same sense in criminal cases as it might be in a writ petition filed against it. If the above statement is not true then how come the State cannot instruct the Prosecutor to make a certain argument or move a certain application as compared to a Standing Counsel?