Guest Post: Reflections on the High Court's Judgment in Fahad Shah's Case

(This is a guest post by Rajyavardhan Singh)

A recent post on this blog by the editor argued that the Supreme Court in Union Territory of J&K v. Peerzada Shah Fahad had erred in declaring the J&K and Ladakh High Court’s judgement (“Fahad Shah”) per incuriam merely for referencing the "clear and present danger" test from Schenck v. United States (“Schenck”) in the context of bail under Unlawful Activities Prevention Act, 1967 (“UAPA”). It argued that the High Court in Fahad Shah did not misuse Schenck to assess free speech so as to render it per incuriam, but instead adapted it to set a threshold for justifying arrests and detention under UAPA. Further, it criticised the Supreme Court’s dismissal as potentially hindering other courts from considering valid reasoning.

Reading the analysis led me down a fascinating rabbit hole, exploring a rather distinct yet related question: Whether the invocation of the "clear and present danger" doctrine was normatively sound in this context?

Upon careful perusal, I submit that the High Court's reasoning suffers from two interconnected flaws that extend beyond the mere citation of foreign precedent. First, it commits a false equivalence by conflating a doctrine specifically designed for post-facto speech restrictions with the preventive nature of the UAPA, thereby misaligning the temporal and causal requirements. Second, and more problematically, it attempts a flawed transposition of American free speech doctrine into an Indian anti-terror statute, disregarding not only the Supreme Court’s deliberate rejection of such transplants but also the carefully calibrated evolution of domestic anti-terrorism jurisprudence.

1. False Equivalence

The High Court's invocation of the "clear and present danger" test in interpreting Section 43D(5) of the UAPA marks a significant departure from the legislative intent of the statute. While Sekhri contends that the court merely borrowed evocative prose from Schenck to express a proximity requirement for arrests, this interpretation understates the conceptual confusion such borrowing creates. Although he is right in observing that the High Court was "crafting an idea to address a problem using remnants of old concepts from different contexts," the Court's seemingly harmless transplantation nonetheless obscures a fundamental category error.

For what must be understood is that the "clear and present danger" test, even when repurposed, carries with it specific analytical assumptions about causation and imminence that are fundamentally at odds with the preventive nature of the UAPA framework. As evidenced in paragraph 31 and 32 of the High Court's judgement:

"31. The legislative intent behind s. 43D (5) and its proviso was to ensure that those who were a “clear and present danger” to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released. It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time.”

32. "We hold, that the investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of 'clear and present danger' of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society." [Emphasis mine]

This borrowed standard implicitly requires a degree of temporal and causal proximity that the UAPA deliberately eschews. When the High Court states that authorities must "justify the arrest on the anvil of 'clear and present danger' of the accused to society at large" it imposes a reactive paradigm on a preventive statute. This, I submit, is not merely a semantic sleight-of-hand—but much rather represents a substantive reconfiguration of the UAPA's operational logic. The specific importation of Schenck's framework introduces evidentiary and temporal requirements that could effectively nullify the UAPA's preventive capacity, particularly in cases involving long-term planning or preparatory acts.

This is precisely why the UAPA deliberately moves away from such immediate temporal requirements, allowing intervention based on reasonable grounds even when threats aren't imminent.

2. Flawed Transposition

The High Court's use of Schenck's language to express established principles about justified arrests overlooks the dangers of decontextualised legal borrowing. While Sekhri quite rightly notes that "there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past" so as to render it per incuriam, nevertheless I argue that the manner of citation matters. Otherwise, it risks oversimplifying the nuanced jurisprudential reasons why Indian courts have rejected the "clear and present danger" test in cases like Babulal Parate v. State of Maharashtra, State of Madras v, V.G. Row and more recently in Arup Bhuyan v. State of Assam.

Importantly, the High Court's judgement does more than merely reference Schenck; it attempts to transpose a specific legal test designed for post-facto speech restrictions into the realm of anti-terror legislation. This, in turn, creates two fundamental problems. First, it muddles the distinct jurisprudential frameworks governing speech restrictions and terrorism. Second, it disregards the Supreme Court's careful development of native doctrine around preventive detention, which has evolved to balance security imperatives with constitutional rights in India's specific context (As Shastri J. emphasised in V.G. Row, India's constitutional scheme demands "different techniques and approaches" that account for our unique security challenges).

The flawed transposition becomes even more apparent when we trace how the borrowed test would operate in practice. Under Schenck, the "clear and present danger" framework was designed to evaluate whether speech had sufficient proximity to harm to justify restriction. This required courts to analyse: (1) the immediacy of potential harm, (2) the direct causal link between speech and danger, and (3) the substantive likelihood of the feared outcome.

When the High Court attempts to transpose this framework to UAPA arrests, it reveals both the appeal and limitations of such doctrinal borrowing:

First, while the "clear and present danger" test might seem useful for cases like Mr. Shah's, where a significant temporal gap exists between alleged acts and arrest. It creates an impossible ‘temporal paradox’—requiring authorities to show a "present" danger for actions specifically aimed at preventing dangers from becoming "present." This framework might work when questioning decade-old publications but becomes incoherent when applied to UAPA cases more broadly. While the High Court's instinct to question the necessity of arrest for historical acts is sound, importing Schenck's test unnecessarily complicates what could be a straightforward proportionality analysis.

Second, even in cases involving journalistic activities, the causal chain analysis from Schenck proves problematic. The High Court's attempt to require a direct link between past publications and present security threats, while protective of press freedom, fails to account for how written content might contribute to security risks over time through gradual radicalization or by providing operational intelligence to hostile actors. The "clear and present danger" framework's insistence on direct causation could blind courts to these more subtle, long-term security concerns while offering little additional protection against arbitrary detention that existing proportionality standards don't already provide.

Thus, while the High Court's judgement admirably attempts to protect against arbitrary detention for dated allegations, its choice of doctrinal tool creates more problems than it solves. Rather than importing foreign standards without fully contextualising them—especially from reactive contexts to preventive ones—a more effective approach would involve creating guidelines specifically tailored to address temporal remoteness under UAPA. Such guidelines could consider factors like the ongoing relevance of old publications, shifts in context since their release, and the proportionality of current detention. This approach would better serve the Court’s objectives while preserving doctrinal coherence.

To Conclude

Section 43D(5) of the UAPA, while imposing strict conditions for bail, does not override the fundamental requirement that arrests must be necessary and proportionate. In Fahad Shah, the High Court could very well have examined whether the significant temporal gap between the alleged journalistic activities and the arrest met these essential standards (given the decade-long gap between Mr. Shah’s alleged acts and his arrest) without resorting to the analytically incompatible 'clear and present danger' test.

In Union of India v. K.A. Najeeb, the Supreme Court has already established that statutory restrictions like Section 43D(5) cannot displace constitutional safeguards enshrined under Part III in evaluating preventive detention:

18. “It is thus clear to us that the presence of statutory restrictions like Section 43­D (5) of UAPA per­ se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

This approach would have allowed the court to conclude that an inordinate delay between the alleged acts and the arrest, without compelling justification, suggests either a diminished need for preventive detention or an abuse of process—both warranting bail. Such reasoning would not only have led to the same conclusion but also promoted a more principled development of bail jurisprudence under special legislations like the UAPA, ensuring doctrinal consistency.

A Curious Constitutionalism - Sheikh Javed Iqbal and Bail in UAPA Cases

On July 18, 2024, a Division Bench of the Supreme Court decided the appeal in Sheikh Javed Iqbal v. State of Uttar Pradesh [2024 INSC 534 ("Sheikh Javed Iqbal")], allowing the appeal and granting bail to a person accused of having committed offences under Sections 489B, 489C of the Indian Penal Code 1860 [IPC] and Section 16 of the Unlawful Activities (Prevention) Act 1967 [UAPA]. Notably, the accused had been in custody for more than nine years. Charges had been framed and his trial was pending, but only two prosecution witnesses had so far been examined when the bail was heard by the Supreme Court.

The observations at Paragraph 32 of the judgment merit reporting in full:

"This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence."

If you do not pay close attention, the paragraph reads like a sonorous tribute to law safeguarding personal liberty, with repeated incantations of "Constitution", "Constitutional Court" and "Constitutionalism" for good measure. It is only once you pay close attention do you realise that the paragraph is, in fact, hot air. A straw-man is put up — statutory provisions curbing constitutional rights — and is then knocked down with flair. 

Similarly, the observations at Paragraph 28.2 from Sheikh Javed Iqbal that an earlier judgment on bail in UAPA cases, Zahoor Ahmed Shah Watali, "cannot be cited as precedent to deny bail in UAPA cases where the accused has suffered long incarceration", are again a straw-man. To say that Watali can't be used for this purpose is to not really say anything of note because it obviously cannot be used as binding precedent for this purpose since it never said anything about delayed trials and lengthy incarceration. What Watali  stands for is a judicial approach which justifies giving the prosecution a wide berth to deny bail in UAPA cases. If anything, to understand how Sheikh Javed Iqbal treats Watali what is more relevant is Paragraphs 27.2 and 28.1, which show that rather than watering down Watali the new judgment reinforces the legal correctness of the approach in Watali for deciding bail under UAPA cases. 

What Sheikh Javed Iqbal does is to restore the primacy of the curious constitutionalism that the Supreme Court has consistently displayed an adherence to when it comes to bail especially in UAPA cases besides some other categories as well, where Article 21 somehow shines much brighter once a person has suffered lengthy incarceration. That the Court in Sheikh Javed Iqbal had to offer such a lengthy justification to invoke this approach is only because five months ago in Gurwinder Singh a different bench of the Court decided that even this was too much liberty to swallow when it came to UAPA cases.  

Paragraphs 22 to 29 of Sheikh Javed Iqbal give us a concise history of this stream of Article 21 logic. I call it a curious constitutionalism because it is not invoked to justify a consistently robust take on how courts must review the prosecution's presenting a prima facie case for denying bail. It is not invoked to explain legal intricacies — for instance, how to deal with UAPA bails once charge has been framed. Instead, this curious constitutionalism with its ode to Article 21 shines through only once an accused has served a meaningfully long period of incarceration as an undertrial. It is also invoked in a restrictive sense, by emphasising the constitutional courts powers and in one fell swoop justifying restrictive approaches for our trial courts. After giving the state enough time to try and run its case with the accused behind bars, a Court — not a trial court mind you — turns around and now tells us that enough is enough and the person must be freed because now the Constitution would be sullied by continuing his custody.  

This is not constitutionalism, but a jurisprudence of apology, of doling out mercy as and when deemed fit. Let us not pretend otherwise. 

What Next after the Vernon Gonsalves Judgment

A Division Bench of the Supreme Court has allowed appeals filed by Vernon Gonsalves and Arun Ferreira [Reported as Vernon v. State of Maharashtra, Crl. Appeal No. 639 / 2023 (Decided on 28.07.2023) ("Vernon")] which challenged the dismissal of their bail applications by the Bombay High Court, and has directed that they must be released on bail. The judgment comes almost five years after their arrests, and has been welcomed as a ray of light in what is possibly one of the darkest corners of present Indian jurisprudence — grant of bail in cases under the Unlawful Activities (Prevention) Act 1967 ("UAPA"). I need not elaborate the reasons for this praise for Vernon here, all of which is merited, as these have been comprehensively discussed on the ICLP Blog. Instead, I wish to flag the challenges ahead that must be resolved to make sure that the judgment in Vernon is not reduced to a forgotten relic by the sands of time.

Urgent Need for Clarifying Divergent Opinions

Vernon comes more than four years after a different Division Bench of the Supreme Court had delivered its verdict in NIA v. Zahoor Ahmad Shah Watali in April 2019 [(2019) 5 SCC 1 ("Watali")] and interpreted Section 43D(5) of the UAPA which requires that courts evaluate whether the case against an accused is 'prima facie true' to decide grant of bail. 

In Watali, the prosecution had challenged an order of the Delhi High Court granting bail to the accused, arguing that the High Court had erred by evaluating the substantive merits of the material gathered by the prosecution to decide whether the case against the accused was 'prima facie true' as required by the UAPA. The Supreme Court agreed, and held that determining whether a case is 'prima facie true' did not entitle a court to speculate on how reliable or believable the material gathered by the prosecution is. 

In the years since Watali its dictum came to sponsor a dizzying variety of judicial approaches. On one end of the spectrum was the 'eyes wide shut' approach which saw courts loathe to ask any questions of the prosecution material to decide bail — if there was material, and it supported the allegation, the court was not going to entertain questions about it being absurd. A good example, perhaps, is the decision of the Delhi High Court denying bail to Umar Khalid. On the other end of the spectrum was an 'eyes wide open' approach which saw courts continue to demand some believability in the prosecution case to decide bail and test its soundness by skirting the edges of Watali. The Bombay High Court order granting bail to Anand Teltumbde was a recent example of this approach.

At one level, Watali was unremarkable in advocating an approach cautioning courts from wading too deep into a consideration of the merits of a case at the stage of bail. It borrowed this approach from general bail jurisprudence. What was remarkable about Watali was its blindness to the fact that it was not dealing with the ordinary bail law, where deciding bail should not turn on the merits of a case, but a statute which made bail entirely contingent on the merits of the case. In other words, Watali ended up fitting a square peg in a round hole. The judgment in Vernon does not expressly call out Watali as being problematic on this count. However, it unequivocally condemns that most extreme variant of the Watali approach when it concludes that "at least surface-level analysis of probative value of the evidence" is required to decide whether a case is 'prima facie true' for purposes of bail under the UAPA (Paragraph 36). This, arguably, is the best reading of Watali itself, but it is not how the Vernon court puts it. 

The subtlety of the analysis by the Supreme Court in Vernon may yet be lost on future courts or may be deliberately avoided by prosecutors, who will probably cling to the fact that both Watali and Vernon are decisions by benches of the same strength and thus continue to evoke the ghosts of the 'eyes wide shut' approach in spite of the condemnation in Vernon. To put the matter beyond doubt, it is imperative that the Supreme Court endorse the observations in Vernon wholeheartedly and shines light on its interplay with Watali. The pending appeal against rejection of bail to Umar Khalid may be a good place to start.

The Wider Problem of Twin Conditions Law

There is an interesting passage in Paragraph 40 of Vernon. Echoing observations made in Najeeb [(2021) 2 SCC 202], the Court notes that the restrictions on bail under UAPA are less stringent than those under statutes such as the Narcotic Drugs and Psychotropic Substances Act 1985 ("NDPS"). 

Section 43D(5) of the UAPA reads:

Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: 

Provided that such 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 made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Section 37 of the NDPS Act reads:

No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless — 

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Take a look at both clauses again. The Supreme Court in Vernon says that the UAPA bail requirement is less stringent because it asks a court to see whether the allegations "cannot be held to be prima facie true" as opposed to the NDPS clause which requires the court "to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and he is not likely to commit any offence while on bail." 

Insofar as the UAPA clause does not have any speculative determination of future conduct required to decide bail, it is definitely less stringent. But is the requirement of testing whether a case is 'prima facie true' less stringent than the NDPS formulation of 'not guilty' which is repeated across other laws? I think that it is not as straightforward a query as the Court has made it seem in Vernon. If anything, because it will be easier to cross the threshold of establishing a case is 'prima facie true' than establishing reasonable grounds for believing a person is 'not guilty', the UAPA clause is arguably a more stringent restriction on granting bail. 

Accepting that the UAPA is stricter than the NDPS would perhaps allow courts to come to terms with the seminal question that requires addressing here — can such a clause ever be constitutional? Unlike NDPS and other statutes restricting bail which do not exhaustively mention the materials which a court considers to decide whether reasonable grounds to deny bail exist, the UAPA clause specifically lists out the material on which this determination is made: case diaries, and the police report. Two questions arise. First, can judicial discretion be rendered subservient to the views of a police officer who conducts the investigation?  Second, since it is accepted by the Supreme Court itself that police reports often withhold exculpatory material from courts in a bid to secure convictions which has prompted the Court to broaden rules of disclosure, is such a procedure meeting the 'just, fair, and reasonable' test under Article 21? 

Answering this question of stringency requires dealing with a linked question which neither Vernon nor Watali dealt with — upon whom does the burden lie to meet this threshold? In the NDPS framing, it has been common for courts to assume that the accused must show that there are reasonable grounds to believe that she is not guilty of the offence. The text itself may yet support casting the burden on the prosecution, but that is a separate matter. In the UAPA context, the Supreme Court in its framing at Paragraph 40 itself suggests a similar approach of placing the burden on an accused — the test is framed as a negative, the case "cannot be held to be prima facie true", which is a proposition only the accused will try and show. This is how most courts have so far been reading Section 43D(5), but somehow it has not prompted courts from considering the impact this view has on how bail hearings under UAPA are to be conducted. Since it is only once an investigation concludes that the accused gets copies of the material forming the basis of accusations against him — the very material which is the basis for a court to decide whether the case is 'prima facie true' — does this mean that every accused is practically consigned to spend three to six months in custody in such cases before being able to agitate bail? Again, we must ask, is this a procedure that can ever meet the venerable 'just, fair, and reasonable' test prescribed by Article 21 to deprive persons of their personal liberty?  

Conclusion: The Little Done, the Vast Undone

Judgments like Vernon, where judicial reasoning does not crumble under the sheer weight of how serious certain accusations can be made to sound from the lips of prosecutors and the pens of policemen, breathe life into the idea that there exists a rule of law governing the affairs of the Indian republic. However, one judgment alone cannot alter the deep-seated views which prompt courts to adopt positions and procedures that are antithetical to personal liberty. Vernon reflects the little done. This post hints at the vast undone that must now be addressed by courts and the legislature if we want make bail hearings a fairer enterprise.

Justice in Courts of Inquisition? The Delhi High Court on UAPA Remand Extensions

A person should not be condemned without knowing why. One would think that this precept is not a point of debate in the legal system of a constitutional, democratic, republic. After all what personifies the shift from a culture of impunity and subservience to one of justification than the ability of individual citizens to ask questions and demand answers from those in power. This does not stop at the ballot box, but pervades deep into the fabric of how things are done, and ought to be the unshakeable cornerstone of how criminal law with its censure and punitive sanctions is administered. 

Yet, time and again, we are politely reminded to not take anything for granted. Slotting in nicely within this bucket is the recent decision of the Delhi High Court in a batch of appeals concerning the application and interpretation of Section 43D(2)(b) of the Unlawful Activities Prevention Act 1967 [UAPA] [Zeeshan Qamar v. State of NCT Delhi, Crl. Appeal No. 405 / 2021 and other connected petitions, decided on 24.02.2023 ("Zeeshan Qamar")]. 

Time Limits on Investigations and their Consequences

What was the issue? Let's read the provision:

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), -- 

(a) the reference to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:--

"provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days."

[Emphasis mine] 

In a previous post on the blog, we discussed Section 167 of the Criminal Procedure Code 1973 [Cr.P.C.] and its time limits for investigation. The logic behind having these limits was an implicit recognition by Parliament that custodial detention was an integral part of investigations and the status quo allowed for persons to be detained for prolonged periods during an investigation, and bail in non-bailable cases was not easy to get. The time limits were supposed to act as a means to speed up investigations, by sending a message that failure to complete investigations on time would entitle a person to release. The move came with a clear-eyed recognition that giving these time limits may send the wrong signal and suggest that the law treated pre-trial detention of up to sixty (and later also ninety days) as acceptable, and a hope that the police and courts would not get the wrong idea.   

Section 167 was possibly one of the most radical interventions made in the administration of criminal law yet. It was only natural for it to have its detractors. In 1975, the Supreme Court in Natabar Parida [AIR 1975 SC 1465] made its displeasure apparent when it observed that such a law "may be a 'paradise for criminals', but surely it would not be so, as sometimes it is supposed to be, because of the courts. I would be so under the command of the Legislature." Hardly a year later the Gujarat state government had taken steps to increase the time limits, and a few years after that we had Parliament itself amend Section 167 to provide for the ninety day limit for certain crimes. It was no longer obvious as to whether the idea of sixty / ninety days being an acceptable pre-trial detention was a wrong one or not.

The introduction of Section 167 Cr.P.C. and its swift amendment suggests the sense of unease within the state machinery which naturally accompanied such a radical departure from the norm. It was unsurprising for further, and significant departures to be made to Section 167 when Parliament sought to confront armed separatist movements in the 1980s, and suggest to the world that it took its international obligations on enforcing drug laws seriously. Detention up to a year became permissible if it could be shown that the investigation could not be concluded within the time period, and unsurprisingly, it also became the norm as these special laws made getting bail even harder than what was possible in ordinary circumstances. 

The issues and conclusions in Zeeshan Qamar

In this context is how we must view introduction of safeguards for how this extension of the permissible maximum period of pre-trial detention could occur. The law introduced a requirement for a report to be filed by the public prosecutor indicating the progress of the investigation and giving clear reasons why the further custodial detention of an accused was required. 

What was in issue before the Court in Zeeshan Qamar — and not for the first time as such — was whether this report by the public prosecutor ought to be shared with the accused at the time when a court is hearing the request for extending the period of maximum permissible pre-trial detention under Section 43D(2)(b) of the UAPA. The batch of appeals were all filed at separate points of time challenging the extension, and in most of them the accused were denied a copy of the prosecutor's report. This led to them being clubbed together for hearing, and the High Court framing and deciding issues on the process of Section 43D(2)(b) extensions besides deciding on the validity of the extensions in these specific appeals. 

These issues which the High Court framed were as follows (Para 4):

• Whether the prosecutor's report should be shared with the accused at the time of extension of time for a further period beyond 90 days?
• Whether the court "should satisfy three requirements" at the time of extension of remand i.e. (i) what is the progress of investigation, (ii) whether further investigation is required, and (iii) whether continued detention is required for this further investigation?
• Whether the court can extend remand for ninety days in one go, or should it be in a truncated manner to oversee the progress of investigation.

The conclusions that it returned (in serial order) were as follows (Para 13):

• The report is not required to be provided at the stage of extending remand, but the accused should be "informed" about the same to ensure she is not a "silent spectator" and the court must consider the submissions on behalf of the accused. 
• The "essential requirements" to be considered are: (i) reasons for the prosecutor's satisfaction about progress of investigation, (ii) reasons why 90 days are not enough, and (iii) details of what further investigation is required for which further time is sought. These three considerations must be part of the prosecutor's report.
• The court must consider the report carefully and can grant 90 days in one stretch, and if it does not then the agency can re-agitate its demand for the remaining period if need be. 

I will turn to the first conclusion, which is the focus of this post, in the next section. But before that, a word on the other two answers offered. The discussion on issue (ii) suggests that the court did find that the prosecutor's report must also indicate why continued detention is necessary, although the conclusion itself is somehow silent about that aspect. What is perhaps unsurprising is that the High Court offers a rather low threshold of just what must be shown to satisfy a court that the completing the investigation was not possible. On issue (iii), the High Court in its discussion encourages courts to carefully peruse the facts and determine just how long an extension is necessary and not grant blanket extensions for a further 90 day period. This is not captured fully in the conclusion, which merely focuses on it being legally permissible for a court to indeed grant 90 days in one stretch if it feels this is necessary. 

The 'Silent Spectator' Paradox

Which now brings us to the first issue, on sharing a copy of the report. To its credit, the High Court did not try and avoid a discussion but gave its own independent reasoning for why the report ought not to be shared (Paras 6.11 to 6.14). 

This logic is straightforward — the report must necessarily have details about the investigation which if shared with the accused could prejudice the ongoing probe and, in any event, this material would be inextricably linked to material in case diaries that the accused has no right to see in the first place. The main plank for the court's reasoning, therefore, was that an accused "has no right to know the progress in an investigation." 

With due respect, this is deeply flawed at multiple levels. At the most fundamental level, if we assume that India is a constitutional republic recognising and guaranteeing the right to personal liberty (arguably an acceptable assumption) then while a person may not have any independent right to know the progress of an investigation, she certainly has a right to know about it if this investigation is the basis for keeping her in pre-trial custody when she is presumed to be innocent. 

It would be different if my custody was independent of the merits of an investigation. But the very nature of Section 43D(2)(b), UAPA makes it clear that it is only because of the merits that my further custody is being sought. Pre-trial detention is the most obvious and glaring deprivation of personal liberty, and my right to contest it is meaningless if I do not know on what grounds am I being kept behind bars. Being able to question deprivations of liberty and demand justifications cannot be de-linked from being a constitutional republic. Its non-negotiable.  

It is equally flawed at one level removed from this most basic argument. Accused persons are regularly given some kind of update as to the investigation every time police oppose bail applications by way of filing a response during the pendency of the investigation. Similarly, the accused is also given update on the investigation when police seek custodial remands (and not judicial custody). It is nobody's case that the contents of these replies and applications are not derived from case diaries, but this linkage only means that it is incumbent upon the agency to walk that tightrope between securing its sources and giving enough of a clear answer to the accused whose fundamental rights are being deprived with each day in custody. 

If we accept the logic in Zeeshan Qamar, then the nature of remand and bail hearings (where bail is filed during investigation) stands irrevocably and disastrously transformed by taking out the most affected party — the accused in custody — from the equation by which we expect the court to make a fair decision on whether or not custodial detention should be extended further. Remand becomes a fiefdom of the State — one arm (executive) talks to the other (judiciary) to decide what's best and the citizen should sit back and accept her fate as a collateral consequence. 

One senses that the High Court recognised this was a problem when it agreed that an accused cannot become a 'silent spectator' to the process by which her liberty is being decided. But the court answers this problem by tying itself in knots rather than offering any meaningful safeguard, for the only real safeguard had already been denied.  

Facing the Facts

We can view Zeeshan Qamar as an aberration and continue preaching the gospel of India's transformative constitution and its dharma of fairness. Or we can face the facts, that criminal justice was and continues to be deeply entrenched in a feudal mindset where the perceived brightness of the constitution is yet to shine all too brightly. An accused has a qualified right to get a copy of the first information report, does not have the right to a lawyer during questioning, does not have the right to a lawyer even during custody for some kinds of cases (PMLA), and now does not have the right to know the basis upon which the state wants to extend the permissible period for his custodial detention. 

Transformative indeed.