Collapsing Boundaries and Anti-Terror Laws

Anti-terror laws lend themselves to a peculiar kind of jurisprudence. Legislatures, presumably in a bid to show commitment to the rule of law (or, compliance with some international obligation), draft laws that have a variety of offences designed to curb a variety of evils. All these offences are drafted in a similarly broad fashion covering all kinds of physical acts. The difference between them is only in the nature of the alleged 'mental element' which is supposedly accompanying the physical act. 

These boundaries between offences within an anti-terror law are what one is forced to reckon with after reading the Delhi High Court's recent decision in Mohd. Abdul Rehman v. State [2024 DHC 9945 DB]. The High Court rejected the appeal against conviction for offences under Sections 18 and 18-B of the Unlawful Activities Prevention Act 1967 ['UAPA']. Section 18 punishes conspiring to commit a terrorist act or acts preparatory to commission of a terrorist act, and Section 18B punishes recruiting others for the commission of a terrorist act.

An Object-Less Conspiracy 

Dismissing an appeal is hardly novel. What makes Mohd. Abdul Rehman a decision warranting comment and discussion are its facts. Here, there were a series of circumstances implicating the appellant [see Paragraph 46 of the judgment]. They consisted of travelling to Pakistan without reason, consorting with members of terrorist organisations, giving radical speeches, and recruiting young persons for the cause of terrorism. But the prosecution was unable to point to any conspiratorial object that was being pursued by the appellant and his co-accused persons. 

Instead, the object of this alleged conspiracy was to pursue objectives antithetical to national interests. The set of circumstances gave a "cumulative effect of existence of some common design or object to achieve something which is not in the interest of the country" [Paragraph 25]. At another place in the judgment, the case is described thus: "Although, there is nothing on record to show that any particular act or object was in contemplation, however, it is the case of the prosecution that these circumstances if taken cumulatively would demonstrate that the Appellant was preparing to commit an act, which would otherwise disturb the unity, integrity, peace and tranquility of India."

The High Court's Reasoning

The reasoning of the High Court in upholding the conviction, which begins its analysis from Paragraph 47, is fairly straightforward. Essentially, it does not matter if there is no clear object being alleged to the conspiracy. The definition of 'terrorist act' is not merely limited to acts which threaten the unity etc. of the country, but also to acts which are likely to cause such an outcome. By extension, criminal conspiracies are not only those where the object is to engage in acts threatening the unity of the country, but acts likely to do so. Add to this mix the UAPA's conspiracy clause, which punishes persons for acts preparatory to the commission of terrorist acts, and you reach a place where there is no need for the prosecution to prove any clear object of a conspiracy, as long as it can show that persons are acting in concert and doing acts preparatory to acts which can threaten the country's unity — whatever that means. Thus, "indulging in conspiracy with terrorist organisations and associated with persons who are rendering support to terrorist organisations (sic)" comes within its grasp. The conclusion is elsewhere stated as "in conspiracies of this nature specific cover acts would not be required but secretive and clandestine support to declared terrorist organisations would also be sufficient." [See paragraphs 57 to 52]. 

Mohd. Abdul Rehman demonstrates the snowballing effect of the anti-terror law's multiple crimes into one broad crime. The concluding paragraphs of the High Court judgment show that the main allegation against the appellant was his consorting with a terrorist organisation. Now, the UAPA does carry a very broad conspiracy clause, Section 18, but it also carries a different set of crimes which punish supporting terrorist organisations under Section 39. For punishing a person under Section 39, you need not show that there is any concern with committing terrorist acts, but only show that a person knew that he was dealing with a terrorist organisation, and did something which he knew would offer encouragement or support to the said organisation. 

A much better fit, right? So why did Section 39 not figure at all? This is because of the sheer overbreadth of the conspiracy clause, which has the potential to easily subsume the kinds of acts which may more appropriately be criminalised through Section 39. Prosecutors thus have a choice in how to frame the case, and since Section 18 carries far more stringent punishments compared to Section 39, it is natural for them to invoke the conspiracy offence. Section 18 carries a life sentence, while Section 39 a maximum sentence of up to ten years in prison. 

Conclusion

Many hope, and some even dare to expect, courts to perform some anti-majoritarian dance of democracy. The peculiar setting of anti-terror laws reminds us just how forlorn that hope and expectation is. Faced with an existential threat to the sovereign, even object-less associations of persons assume the nature of a conspiracy, on a reductionist logic that it is only a matter of time that these associations find an object, and the law can't afford to wait. We can decry the lack of analysis on display in Mohd. Abdul Rehman, and there is certainly something to be said about how scanty the reasoning is. But when the offence itself is so broad — "whoever conspires or attempts to commit or advocates or abets or incites directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act" — then do you really need any reasoning? Law reduces itself to punishing suspicious conduct, fermented with some vague allegations of criminal intent which nobody can disprove.  

The SC Order in the Fahad Shah Case

In November 2023, the High Court of J&K and Ladakh passed its judgment in Peerzada Shah Fahad v. Union Territory of J&K. Readers may recall that this judgment concerned a journalist, Mr. Shah, who had been prosecuted for offences under the Unlawful Activities Prevention Act 1967 ['UAPA']. In connection with which he had also been arrested and denied bail.  

The judgment of the High Court was the result of Mr. Shah challenging two orders, one by which charges had been framed against him for offences under the UAPA and the other by which his bail application had been rejected by the lower court. The High Court granted him bail, and also ruled that some of the charges against him, including the most serious UAPA charge, were unsustainable. [The judgment was covered on the Blog here and was also discussed in the press here, here and here].

This judgment was challenged by the Union Territory of J&K and Ladakh before the Supreme Court. The Union, presumably, sought that the bail so granted be denied and that the charges originally framed against Mr. Shah be restored. It appears that, on the first date of hearing in September 2024, the Union took an adjournment. After which the case came up for hearing on 14.10.2024, where the petition was disposed off. The two orders suggest that the Court did not issue any notice to the opposite side, i.e. Mr. Shah, before deciding the petition. 

That a petition was decided without hearing the proposed respondent is not uncommon as many petitions to the Supreme Court are dismissed at the outset as the Court considers no interference is being called for with the lower court's orders. In this case, though, the Court did not simply dismiss the petition. While it held that there was no reason to deny bail and return Mr. Shah to custody, the Supreme Court made a key observation in respect of the validity of the reasoned 25 page judgment of the High Court: It declared that the judgment was per incuriam and shall not be cited as precedent (para 6). In other words, no other court can henceforth rely upon the observations made by the J&K and Ladakh High Court, nor can counsel try to use them in support of their case.

Why did the Supreme Court arrive at such a conclusion? Paragraph 6 of the brief two page order passed on 14.10.2024 states that the per incuriam finding was because the High Court's judgment were contrary to judgments passed by the Constitution Benches of the Supreme Court. To understand which judgments, we must turn to Paragraph 4 of the same order, which extracts submissions made by the Solicitor General. To avoid any confusion I have copied the relevant part below:

"The learned S.G., Mr. Mehta has drawn our attention to the para 28 of the impugned judgment, whereby the High Court has placed reliance on Schenck Vs. United States (249 US 47 (1919) : 1919 SCC Online US SC 62). He submitted that the two Constitution Benches in Babulal Parate vs. State of Maharashtra (AIR 1961 SC 884) and in State of Madras vs. V. G. Row [(1952) 1 SCC 410] and one Three Judge Bench in Arup Bhuyan vs. State of Assam [(2023) 8 SCC 745] have rejected the application of the doctrine of “clear and present danger”, as laid down in the said judgment, i.e., in Schenck Vs. United States (supra), and therefore, the observations made in the impugned judgment would be per incuriam. ..." 

There is no doubt that the Indian Supreme Court does not fully approve of the test in Schenck and that if a High Court relies upon Schenck without understanding its clarifications by the Indian Supreme Court, it is proceeding in error. But underlying all of this analysis is a rather obvious premise: the High Court ought to have been using Schenck for the reasons why the Indian Supreme Court did not approve it, for it to have ever fallen into error. But if it was not using Schecnk for these purposes, there was no problem, because there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past.

Let me explain this further. A judicial decision gives us an answer to a problem, but rarely does it give this answer in a straightforward or formulaic manner. Judges give their answer in ways that can help in future cases, and do so with their unique sense of flourish (or dose of dour). Schenck is one such judgment, in which the U.S. Supreme Court not only decided the problem before it — the validity of the Espionage Act — but did so by providing a test for future courts to decide issues of the legality of similar statutes. Now it is obviously open for future courts to disagree with this old test and come up with their own tests, which is what happens with India's treatment of Schenck. The result is that the test laid down in Schenck cannot be used to decide the kind of problems that it was intended to solve. It does not mean that no court can use the decision to aid its imaginative process of solving other problems.           

To decide, then, whether or not the High Court in Mr. Shah's case had fallen into error in citing Schenck, it is first necessary to determine just what was the problem that it was dealing with. Was the petition testing the legality of any statute on grounds of interference with freedom of speech and expression? It was not. It was deciding a challenge to arrest and detention by a person who had been arrested in 2022 on the basis of accusations against him pertaining to acts done in 2011. In other words, was an arrest in 2022 justified for alleged illegal acts committed in 2011? 

A reading of the High Court's judgment from November 2023 makes it clear that there are only three places in which Schenck, or the idea of 'clear and present danger' which the Supreme Court order cites, are referred to. The first of these is paragraph 28 of the High Court's judgment (which is also mentioned in the Supreme Court's order): 

The charge against the Appellant is basically associated with his right to freedom of speech and expression, which prima facie appears to have gone wrong. In Schenck Vs. United States, the charge against the Appellant was under the provisions of the Espionage Act that impeded the US war efforts against the German Empire in world war I, by mailing letters to discourage conscripts who had qualified to give their service as soldiers against Germany, from joining the US Army. The Appellant sought the quashing of the Espionage Act as it infringed his first amendment right of free speech. Justice Oliver Wendel Holmes writing for the court held “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree”.

The second and third references are not to Schenck, but only to the idea of a 'clear and present danger' at paragraphs 31 and 32 of the judgment — and neither of these have been referred to by the Supreme Court. What do these paragraphs show us? That the High Court did not use 'clear and present danger' as a test to decide the validity of interference with free speech and expression, but as a kind of placeholder to create a new threshold to determine circumstances where arrest and detention would be justified under the UAPA. 

Paragraph 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. ...". [Emphasis mine]

Paragraph 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. If the investigating agency does not satisfy this Court and is unable to justify the arrest (as warranted in Joginder Kumar) the same would result in the violation of the rights of the accused under part III of the Constitution as adumbrated in K.A Najeeb's case, and the accused may be enlarged on bail. In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case." [Emphasis mine] 

What we have here, is a court crafting an idea for solving a problem with remnants of old concepts from different contexts. And in crafting this new idea the J&K and Ladakh High Court did not simply cite from Schenck, but it turned to a concept which the Supreme Court of India has wholeheartedly endorsed time and against: that a person ought not to be arrested merely because he can, but there must be grounds for an arrest. 

Moreover, it would be a disservice to say that this is an entirely new idea to begin with. Within the Indian context, there were already decisions, by various courts, which stressed upon the need for some proximity between the allegations and the exercise of powers of arrest. All that the J&K and Ladakh High Court did was to express this rationale in different, more evocative, prose. That it did so by bringing to use the prose from a decision which had been disagreed with in a different context, could not be a reason to deprive all other courts from even considering the High Court's reasoning. 

If the the only reason to hold that the judgment of the J&K and Ladakh High Court in Mr. Shah's case is per incuriam is because it decided to adopt the same catchy phrase from a decision which earlier benches of the Indian Supreme Court had disagreed with for different reasons—and I say 'if' because the petition itself may have raised many other grounds, none of which are captured in the order unfortunately—then it appears that the Supreme Court order dated 14.10.2024 has committed a most serious error. 

Unpacking the Judgment in Fahad Shah v. Union

A Division Bench of the Jammu and Kashmir High Court delivered its judgment in Fahad Shah v. UT of J&K & Anr. on 17.11.2022 — a common judgment in petitions assailing orders passed by the trial court that had framed charge and denied bail to Mr. Shah. The ultimate result of the judgment was to partially set aside the order on charge, taking out the serious offences punishable under the Unlawful Activities (Prevention) Act 1967 ['UAPA'] and the Indian Penal Code 1860 ['IPC'] while retaining some less serious offences under the UAPA and the Foreign Contribution (Regulation) Act ['FCRA']. And, significantly, to grant him bail and sanction his release from prison where he had spent more than six hundred days, being detained in multiple cases and pursuant to preventive detention orders.

Indian law on bail generally, and especially in statutes such as the UAPA, makes it far easier for courts to deny bail in non-bailable cases. The Criminal Procedure Code 1973 ['Cr.P.C.'] does not demand reasoned orders for rejecting bail, only for granting it; similarly, the UAPA encourages rejecting bail if accusations are simply 'prima facie true'. At some level, this makes any bail order an act of courage. The judgment in Fahad Shah is mightily courageous, and has garnered deserved praise. This post is not another footnote in that celebratory procession, though, and wishes to engage with the judgment from the practitioner's lens. It only looks at procedural issues, and does not ponder upon the implications of the government drawing the contours of terrorism so widely as to bring within it alleged defamation of national interests. 

The first point of note is the procedural posture of the case — this was a case where charges had already been framed. To conclude that charge ought to be framed is, essentially, a finding by court that the police materials make out a 'prima facie' case against the accused. Determining whether the case is 'prima facie true' is precisely the threshold identified by Section 43-D(5), UAPA for courts to reject bail. So is there no chance of being granted bail where charge has been framed? 

Since the High Court in Fahad Shah ruled that there was no material to frame charge for the offences that triggered the restriction under Section 43-D(5), it did not need to answer this issue as such. It nevertheless expounded on a related problem — if accusations are 'prima facie true' does that act as an insurmountable hurdle for release? The conclusion it arrived it was 'no', and it located the reasoning for its conclusion in Article 21 of the Constitution and the view in Supreme Court decisions such as K.A. Najeeb (2021) which held that the direction of constitutional courts to grant bail on constitutional grounds, where such grounds are made out, cannot be fettered by the text of the UAPA. Using this prong, it latched on to another line of prior cases which had held in a general context that while accusations may be made out in many cases and confer a power of arrest, the mere existence of this power did not automatically validate its exercise in all cases. Similarly, when it comes to the UAPA, even where the accusations may be 'prima facie true', that did not validate the fact of arrest itself which the court had to separately inquire into in every case. If, as it held in Fahad Shah, the arrest itself was not made out, then there was no question of Section 43-D(5) of the UAPA acting as a barrier to release.

At its highest, the judgment in Fahad Shah has reinforced what ordinary law already demanded of courts — a thorough scrutiny of the validity of arrest prior to authorising any further remand to custody. Strong reminders of the judicial obligation to seriously scrutinise the police version and examine the need for an arrest came from the Bombay High Court in Chanda Kochhar (an IPC case) and more recently by the Supreme Court in Pankaj Bansal (a PMLA case). Fahad Shah reiterates the logic in a UAPA context. The judgments show how courts can read more bite into the existing statutory yardsticks for effecting arrests if they try. That Mr. Shah remained in custody for almost two years in a case where the High Court finally held that he needn't have been arrested sums up how hard courts end up trying.

Where Fahad Shah does not develop the law is its choice to ground its reasoning in the Constitution and not the text. While reaffirming law that allows constitutional courts to interfere with orders and grant bail, it did not clarify about the extent to which trial courts can proceed on the same route. One might argue that this is a bogus point — the Constitution reigns supreme, and all courts must enforce its mandate. But the specific reference to constitutional courts has allowed prosecutors to raise an objection and for trial courts to pass the buck. Had the Court tethered its reasoning to the statutes more than the constitution, it would have helped diffuse such claims from being raised in the everyday application of the laws. 

Fahad Shah reminds us that the only avenues for bail in such cases appear to be moving (constitutional) courts by invoking Article 21, or by challenging the validity of the accusations itself. Thus, what the High Court does not do, is develop the law on bails in UAPA cases where charge has been framed, where the court does not conclude that the charges or bogus or arrest was improper. To repeat, the issue is an obvious one: when a court frames charge, it delivers a finding accepting that accusations are prima facie true, which is the threshold identified for rejecting bail under Section 43-D(5) of the UAPA. In ordinary non-bailable cases, the absence of a Section 43-D(5) means that even if charges are framed bail can still be granted if the circumstances so warrant, since there is no peremptory bar operating. For instance, where the case has dragged on for years and there is no threat to evidence being recorded. This is seemingly not available in the UAPA which can cause serious prejudice to those persons unable to exercise remedies by going to a High Court. 

To explain the issue through the logic that is endorsed by the High Court — while it held in Para 32 that the issue of arrest ought to be scrutinised on the anvil of a 'clear and present danger' test, it did not go so far as to hold that the continued detention of the accused also ought to be tested on that anvil, and that is a problem. 

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.

What's in a Name? A Lot, Especially if that Name is "Anti-National"

Forgive the plain title as this writer is at his wits' end, exhausted, after a week-long wild goose chase. The object of my search? The meaning of "Anti National" in context of the law.

The immediate cause behind this exertion was set of the guidelines issued by the Delhi High Court's High Powered Committee on how jail authorities should exercise their discretion towards releasing inmates to manage the risks posed by Covid-19 [The most recent one is here]. After detailing what kinds of prisoner categories should be considered favourably for release, the Committee listed categories of undertrial prisoners — persons who are not convicted of crimes and theoretically still presumed innocent — which should not be considered for release. One such category, is

"Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc." [emphasis mine]

This left me perplexed as to what the Committee might have meant by "Anti-National" activity, since the guidelines themselves don't define the term. The "under" in the portion I extracted has got to be a typo, as there is no statute under which "anti-national activities" are proscribed. Even so, does that mean that one gathers the meaning of this phrase from its context, i.e. is anti-national activity a broad term that includes (i) riot cases, (ii) terror related cases, and (iii) cases under the UAPA? But then what about the innocuous "etc." at the end of that category? Also, considering that the purpose of the Committee is to give clear guidance on how to exercise discretion, does it help to use such undefined phrases which give no guidance and leave the jail authorities to their own devices?

Having found no satisfactory answers within the Guidelines, I decided to venture look elsewhere.

Statutes / Constitution

At one point in time the term "Anti-National" was part of the Indian Constitution itself: Article 31-D was added during the Emergency by the 42nd Amendment, to basically render laws for made for "prevention or prohibition of anti-national activities" exempt from judicial review under Articles 14, 19 or 31 of the Constitution. It had a long explanation on what the term meant:

... (b) 'anti-national activity', in relation to an individual or association, means any action taken by such individual or association — 

(i) which is intended, or which 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 of India or which incites any individual or association to bring about such cession or secession;

(ii) which disclaims, questions, threatens, disrupts or is intended to threaten or disrupt the sovereignty and integrity of India or the security of the State or the unity of the nation;

(iii) which is intended, or which is part of a scheme which is intended, to overthrow by force the Government as by law established;

(iv) which is intended, or which is part of a scheme which is intended, to create internal disturbance or the disruption of public services;

(v) which is intended, or which is part of a scheme which is intended, to threaten or disrupt harmony between different religious, racial, language or regional groups or cases or communities; ... 

Never before or after this brief interlude has the Constitution, or any statute for that matter, seen such an extensive engagement with the phrase. That does not mean that legislatures have entirely abandoned using the term either. Below is a short, non-exhaustive, list of statutes (both state and central) where we can still find reference to "Anti-National":

1. Arms Act, 1959 — The original Statement of Objects and Reasons [SOR] for the 1959 legislation referred to "anti-social or anti-national elements" using weapons and bombs, and the SOR for the 1988 amendments to the Act also refer to challenges posed by "terrorist and anti national elements"; 
2. National Security Act, 1980 — The SOR of what is today's the primary central statute on preventive detention referred to the "current crisis" posed by "anti social and anti national elements including secessionist, communal, and pro-caste elements" which "pose a grave threat ... and sometimes even hold society to ransom.";
3. Goa, Daman and Diu School Education Act, 1984 — Section 12 states that employees are to be governed by a code of conduct, and Section 12(2)(b) prescribes that the "Code shall prescribe, inter alia that no employee shall propagate  anti-national, communal, caste, or sectarian outlook.";
4. Cable Television Networks (Regulation) Act, 1995 — The SOR states that subscribers and others are unaware of their rights and duties in respect of "protection of subscribers from anti-national broadcasts from sources inimical to our national interest";
5. Uttarakhand Police Act, 2007 — Section 2(i) defines "internal security" as meaning "preservation of sovereignty and integrity of the state from disruptive and anti-national forces";
6. Sikkim Police Act, 2008 — Section 2(g) defines "internal security" in language identical to the 2007 Uttarakhand Act; [Note: similar clauses can be found in other recent police acts as well]
7. U.P. Fighters of Democracy Act, 2016 — The Act creates a framework for paying honour money to those who stood up against the Emergency. Section 5 of this statute specifies conditions for cancelling the payment of honour money, and one condition in Section 5(i) is the "participation in any crime of moral turpitude and in any anti-national activity" (Oh, the irony);
8. M.P. Loktantra Senani Samman Adhiniyam 2018 — The Madhya Pradesh version of the same law, and Section 9(1)(a) provides for an identical condition as the Uttar Pradesh law; [Note: similar clauses can be found in other state laws passed under Article 348(3) of the Constitution]
9. U.P. Private Universities Act, 2019 — Section 3 of the statute lays down conditions for establishing a university, and Section 3(2)(r) stipulates that the university "to undertake neither to be involved nor to permit anyone to cause or promote anti national activities inside the campus or under the name of the university"  
10. Besides these categories, there is also subordinate legislation passed through notifications where engaging in "Anti-National" acts deprives persons of some benefits or allows for prohibiting activity. This includes: (i) Government procedures on giving advertisements to newspapers etc., (ii) Service Rules for public servants, (iii) CBFC guidelines on censorship, (iv) Cancelling allotments of land under Government schemes, and (iv) As basis to issue Look-Out Circulars against persons. 

Courts and "Anti-National" Conduct  

I also scanned cases spanning 1950 to 2020 from India's Supreme Court, the many High Courts, and some Central Tribunals, where the term was used. This exercise showed that courts have commonly used "Anti-National" as an adjective to describe a wide array of conduct, such as: 

1. Espionage / Spying;
2. Conduct prosecuted under anti-terror laws such as TADA / UAPA;
3. Making Secessionist / Communal Speeches;
4. Activity such as food adulteration, illicit drug trade, making / handling counterfeit currency, corruption, smuggling, etc. punishable under various laws or legal grounds for preventive detention. [Note: A vast majority of cases seemed to fall within this category]

Here, courts not only called such activity "Anti National", but often referred to it as "anti-social and anti-national" conduct. 

The other insight gained from analysing cases was seeing how executive authorities used the term "Anti National" while exercising their discretion. Thus, I came across government school contracts where the employee was barred from "anti national / anti government" activity. But most interesting in this regard was the context of preventive detention orders, which routinely carried the phrase. This was especially so in detentions ordered under the Jammu & Kashmir Public Safety Act, 1978. Curiously, I only found one case which pointed out that engaging in "Anti National" acts was not one of the possible grounds enlisted in the statute authorising preventive detention [Mohd. Saleem Wani v. State, 2010 J&K HC]. 

It was mildly disconcerting that from the large sample size that I played with — all cases between 1950 to 2020 — I found only four cases where courts had offered any semblance of discussion on what this vague idea of "Anti National" conduct might entail. Three of these are:

1. In K.V. Subbarao [AIR 1967 AP 202], the Andhra Pradesh High Court was considering the legality of a detention ordered under the Defence of India Rules, 1961, and the detention order stated that the activities of the Petitioner were "anti-national". Refuting the contention of the Petitioner that this was a vague, undefined phrase, that found no mention in the statute and rules and thus could not be the basis of a detention order, the Court held that "Anti-National Activity" had a wide scope and covered all kinds of activities for which detention could be ordered under the law, viz. acts prejudicial to the maintenance of public order, India's relations with foreign powers, maintenance of supplies, conduct of military operations, and the defence of India. 
2. In Gurkirpal Singh [(1990) 97 PLR 102], the Punjab High Court differentiated between political activity from "anti-national activity" by holding that only the latter could be basis to refuse appointment to a probationer [Here, it was alleged that the appellant was keeping contacts with extremist elements].  
3. In S. Thirumalaiappan [2011, Madras HC], the Madras High Court explained that the phrase "anti national activities" which came in Rule 40 of the Tamil Nadu Pension Rules, 1978 ["anti national activities such as espionage, sabotage, and the like"] as a valid basis for denying compassionate allowance, included a public servant found committing crimes such as cheating and forgery.

The fourth, and the most comprehensive discussion, comes in Priya Parameswaran Pillai [2015, Delhi]. Here, a Look-Out Circular had been opened against the Petitioner which barred her from leaving India. One of the purported reasons was her engagement in "Anti-National" activities, which according to the government was her intention of talking about matters of Indian state policy on before a committee of British parliamentarians, which had the "potentiality of degrading the image of India in the eyes of foreign nations, leading to a regression in the country's economic activities and endeavours...".

The basis for executive power was a clause 8(j) in the official memorandum, which allowed issuing a Look Out Circular "In exceptional cases, ... without complete parameters and/or case details against CI suspects, terrorists, anti-national elements etc. in larger national interest…." (emphasis mine). The Court acknowledged the inherent vagueness in the phrase "Anti-National":

Pertinently, the word anti-national does not find a place in most dictionaries; it is in effect a combination of two words. If one were to deconstruct the meaning of the word anti-national, one would perhaps have to look to the meaning of the word, “Nationalism”. The nearest equivalent to the word ‘Nationalism’ would be patriotism. Patriotism as a concept would be linked to nationhood. Nationhood has several attributes which are, inter alia, inextricably connected with symbols, such as: the National Flag; the National Anthem; the National Song; and perhaps, the common history, culture, tradition and heritage that people of an organized State share amongst themselves.

In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national. Belligerence of views on nationalism can often lead to jingoism. There is a fine but distinct line dividing the two. Either way, views held, by any section or class of people, by itself, cannot be characterized as anti-national activities. [emphasis mine]

The Court acknowledged that this inherent vagueness had the potential to confer arbitrary discretion upon the executive which could label any activity as "anti-national" based on the subjective views of certain officers. Considering that the term was also notably absent from the enumerated list of valid grounds to restrict the freedom of movement under Article 19(2). Accordingly, to render it legal, the Court held that the meaning of anti-national must be gleaned from the rest of the clause, and thus must refer to activities such as terrorism, or counter-intelligence. 

Taking Out "Anti-National" and Restoring the Law's Legitimacy

The 42nd Amendment is considered to be the greatest frontal assault on the character of India's democracy and its Constitution. Article 31-D with its constitutional cloak of safety for statutes condemning the anti-national was an integral part of that dastardly amendment. While it may no longer be more than a footnote within the constitutional text itself, the review of statutes confirmed that the concept continues to capture the imagination of our legislatures.  

The list of statutes and subordinate legislation within which the notion of anti-national activity provided here should provoke alarm in any right-minded person to whom arbitrary executive power causes concern. What that indicative list shows is that an undefined category of "Anti-National Activity" is being used across various contexts such as criminal laws, labour laws, and social welfare laws, as a basis to confer discretionary powers upon executive officers. Exercising these powers entails arbitrarily labelling conduct with extremely pejorative connotations and tarnishing a person's reputation. Not to mention the arbitrary interference in the enjoyment of basic freedoms, and a potential to bring about life-changing consequences by stopping welfare benefits, terminating employment, or causing incarceration.

That courts have uncritically bandied about this phrase in decisions (with the honorary exception of one case) is even more alarming. It might be alright for executive authorities to use high-pitched phrases to make arguments, but it is not alright for courts to reduce a phrase with such obvious taint as an ordinary adjective to describe a garden-variety of conduct. Using vague ideas to justify conclusions means that the arbitrariness of executive officers is transplanted on to the courts. What this leads to is a situation where a Single Judge of the Delhi High Court recognises the vagueness of the "anti-national" in Priya Pillai and the potential for arbitrary discretion that it entailed. Yet, just a few months later in March 2016, a different Single Judge of the same Court passed orders in Kanhaiya Kumar's bail petition [Discussed on the blog], extensively used the same vague phrase throughout the order, and even made it a condition for granting Kumar bail that he take all steps to "control anti-national activities in the [JNU] campus". Words fail me.

A review of the decisions and statutes confirms that far from it being imperative to the functioning of our legal system, the category of "anti-national" is almost entirely unnecessary and frivolous. As identified by the Delhi High Court in Priya Pillai, it is nowhere mentioned in the enumerated grounds for restricting the basic freedoms, and can only be made sense of by being fit into one of those phrases. If that be so, what is the point of persisting with the phrase and inflicting persons with its horrible taint which they carry for years in our system of delayed justice? The value addition is extremely minimal. The damage done to the legitimacy of the law and the ideals of the Constitution, is incalculable.    

Which brings me back to the Delhi High Court's High Powered Committee. When the guideline already refused to extend temporary mercy to imprisoned persons who stand accused in riots cases, corruption cases, cases under anti-terror laws, drug cases, corruption cases, and money-laundering cases, what was left to be covered by way of this amorphous category of "Anti-National Activities"? Nothing. So why not bunk it in the next revision, and restore some bit of the law's legitimacy in the process.

Bail in Terror Cases: Zahoor Watali, and the Fault Lines in the UAPA

There are a handful of judicial decisions that consider how Section 43-D of the Unlawful Activities Prevention Act 1967 ("UAPA") — concerning grant or denial of bail — should work. On 02.04.2019, a Two Justices' Bench of the Supreme Court gave us one such judgment, deciding the appeal in National Investigating Agency v. Zahoor Ahmad Shah Watali [Crl Appeal 578 of 2019, decided on 02.04.2019 ("Watali")]. This post provides a summary of the case, and offers a critique of the opinion. I argue that the Court's interpretive choices in Watali should raise concern, as the judgment effectively sanctifies lengthy pre-trial detention in UAPA cases and offers perverse incentives to prosecute persons under that statute. 

Summary: 43-D(5) and "Prima Facie True"

The National Investigating Agency had filed a comprehensive charge-sheet disclosing a wide-ranging conspiracy to commit terrorism offences. Specific allegations were made against Zahoor Watali and others for funding / encouraging terrorist and secessionist acts through hawala channels, and thus committing UAPA offences [Extracted in Para 27 of Watali]. He was arrested and denied bail by the designated Special Court, largely because of the harshness of Section 43-D(5), UAPA. 

This provision makes it tougher to get bail by adding an extra condition to those already existing in the Criminal Procedure Code 1973. Section 43-D(5) states that if the public prosecutor opposes bail then the Court shall deny bail if after perusing the Case Diary or charge-sheet it "is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true." [Emphasis mine] 

The denial of bail was challenged in appeal before the Delhi High Court, which reversed the order and granted bail to Zahoor Watali on 13.09.2018. Suffice to state that the High Court upon reading the Case Diary and charge-sheet did not find reasonable grounds to believe that the accusations against Watali were "prima facie true". This decision was challenged in appeal before the Supreme Court, which pronounced its verdict on 02.04.2019. Since it found the approach of the High Court was totally erroneous [Para 35], this allowed the Supreme Court to step beyond the narrow scope of intervention for cancelling bail to go ahead and reverse the High Court order altogether.    

One of the main issues before the Supreme Court in Watali was how to interpret the phrase "prima facie true" which is at the heart of Section 43-D(5), UAPA. The Court clarified that no "elaborate examination or dissection" of the material was needed for this exercise [Para 18]. It further clarified that the UAPA provision cast a lower threshold for the prosecution to satisfy when compared with other laws having restrictive bail conditions such as the Maharashtra Control of Organised Crime Act 1999 ("MCOCA") (as well as older anti-terror laws in India) where a court can grant bail if there are reasonable grounds to believe the accused is "not guilty" of the crime [Para 17].

For the Supreme Court, the High Court had taken a wrong turn in conducting a strict scrutiny of the materials to decide the issue of bail. It chided the High Court for seemingly refusing to look at material not mentioned in the charge-sheet [Para 18], and in doing so the Supreme Court clarifies for us that the references to "Case Diary" and "Report under Section 173 of Code" in Section 43-D(5), UAPA, do not prevent a court from looking at the other materials supporting the prosecution case [Paras 18, 20]. Thus, looking at this totality of material furnished by the prosecution, the Supreme Court disagreed with the High Court's conclusions on the existence reasonable grounds to believe the case against Zahoor Watali was "prima facie true". [Para 24] 

Fidelity to Text, but what about the Context? 

It is completely understandable for two courts to come to different conclusions on the existence of a reasonable belief in the sufficiency of the prosecution case. But the Supreme Court in Watali goes far beyond that, and specifically condemns the approach adopted by the High Court on how to decide if the reasonable grounds exist. In place of the strict scrutiny suggested by the High Court, the Supreme Court asks us to be faithful to the text of Section 43-D(5) and the words "prima facie". 

If we consider "prima facie" in the abstract, it is difficult to argue against the correctness of the Court's view that making out prima facie case cannot be a very strict standard. This is how the prima facie test seems to work in other laws as well: for instance, in Section 20 of the Prevention of Money Laundering Act 2002, and Section 7 of the Extradition Act 1962. 

The problem, though, is that no law operates in a vacuum. And the UAPA operates in a very peculiar context. It concerns perhaps the most serious of allegations — of terrorist acts — and punishes them with the most serious of punishments — death. It was because of this context that the Delhi High Court in Watali had noted that material had to be scrutinised with "extra care", rather than proceed "merely on the statements of the investigating agency". According to the High Court, refusing to engage in such scrutiny "would do more harm to meet the challenge arising out of terrorist activities rather than deterring terrorist activities." 

What makes the context of terrorism cases and the text of Section 43-D(5), UAPA even more incongruous is that, whichever way you read the law, it is almost impossible to get bail once charges are framed in such cases if the public prosecutor opposes bail [something the Supreme Court was aware of in Watali (Paras 17-18). This is why the figure that almost 70% of UAPA cases end in acquittals masks the reality that even the acquitted persons would have still spent many years in prison facing trial.  

Because of this, accused persons realistically only have a window between the FIR and framing of charge to secure bail. Since the Indian criminal process requires that the prosecution disclose its case after filing the chargesheet, realistically a much narrower window exists in which the accused can seek bail in a UAPA case to show a court that the allegations against her are not prima facie true. Therefore, for the High Court, this context was irreconcilable with view that Section 43-D(5), UAPA required only minimal scrutiny by the court when deciding bail.  

There is precious little in the Supreme Court's judgment that suggests an awareness of this context. But in Para 31, it is clear that the Court was by no means ignorant of this reality surrounding UAPA cases. The judgment clearly states that "the fact that there is a high burden on the accused in terms of the special provisions ... does not alter the legal position ... to the effect that the chargesheet need not contain detailed analysis of the evidence." [Para 31] The significance of this line cannot be belittled, as it confirms that the Supreme Court actively chose a legal position that makes lengthy undertrial detention more likely.

Remember, this is the same Court that condemns lengthy undertrial incarceration in petty cases and monitors implementation of Section 436-A Cr.P.C. But when it comes to the most serious of cases, the ones that carry the graves stigma, where persons are rendered pariahs from society, the Court takes a view that enables the stigma rather than help reduce it. The hypocrisy is staggering but unsurprising. And at the same time, deeply alarming. The Court has taken a view that makes getting bail in UAPA cases very hard. To imagine that this will not act as a perverse incentive for state agencies to use the UAPA as a tool (on top of the already existing incentives) is a far too benign view of law enforcement.  

The effects of this interpretive choice will be felt in diverse ways in the legal system. But it is hard to conceive of outcomes which are anything but fearsome. The decision could make the UAPA an even more attractive tool to law enforcement agencies now that getting bail is harder. Another effect could be that police see the decision as offering incentives to drag UAPA prosecutions out for longer, since accused persons are unlikely to get bail, and almost certain to remain in custody after framing of charge. The decision might just ensure that even as the rates of acquittal in UAPA cases hover around 70%, the rate of persons suffering imprisonment remains close to 100%.

Conclusion

The 86 page long opinion in Watali seems like a paean to the rule of literal interpretation for statutes: the Supreme Court called out the Delhi High Court for conducting a detailed inquiry at the stage of bail in spite of Section 43-D(5) only requiring a "prima facie" examination. But, in the same breath, the Court also effectively rewrote the provision, as it broadened the scope of inquiry for a court from beyond the Case Diary and Chargesheet to consider "all other relevant material/evidence produced by the Investigating Agency" for making a decision [Para 21, emphasis mine]. Thus, besides giving a cursory look to the Case Diary and Chargesheet, courts are required to evaluate more material with the same benign prima facie gaze.

To read Section 43-D(5), UAPA in this way is not absurd, if we look at text alone. But legal texts are not anodyne words on paper. To ignore their context, the power-relationships they create and impose, is foolhardy. The Supreme Court was not ignorant of the context that Section 43-D(5) occupied. And yet, it chose an outcome heavily titled in favour of the state interests and against individual liberty. It leaves only one possible conclusion for us to draw: This is how our scales of justice tilt.

Hiding in Plain Sight: The Relevance of Character Evidence in Indian Criminal Law

Can our past behaviour serve as a guide for predicting future conduct? The intuitive answer, is yes. Cutting-edge behavioural science research adds substance to this intuition and demonstrates that there are identifiable links between our past and future choices, helping policymakers to design better systems for ease of living (and companies to make more money through better advertising). This notion of prediction is at work almost everywhere, but not in the law of crimes and evidence in most Common Law countries. Instead, here we find that the law has strict rules that greatly limit the ability to rely on this link for prosecuting crime. Indian law is no exception: Sections 14, 15, 52-55 of the Indian Evidence Act 1872 [IEA] show that evidence of a defendant’s bad character is not generally relevant to prove that she was guilty of the offence in question. 

The Shift from Character to Responsibility in Criminal Law

In Making the Modern Criminal Law, Professor Farmer argues it was not always like this, and until the mid-19th Century it was routine for evidence of bad character to be the basis for court decisions. Things took a turn between 1870-1920 due to a multitude of factors, and the relevance of character was slowly replaced by a focus on responsibility in criminal trials. Two factors were arguably more important than others. 

First, responsibility came to fore as it became impossible for juries to arrive at judgments of character with any certainty for it to be used as a basis to render judgments. A fixed local context in a village meant everyone was well-known and judgments of character had resonance. But industrialisation gradually uprooted this idea of a fixed local context, and meant that the law had to look away from character for criminal trials to keep running. 

Second, the question "Why criminal law?" began getting different answers in this period. Till now, criminal law was seen as the tool to help ruling classes exclude certain undesirable types of persons from regular society. In this period between 1870-1920, this determinism in criminal types gradually lost out (as did the notion of ruling classes) and new opportunities were seen in the signalling effect of criminal law. Subjecting persons to censure and sanctions for what they intentionally or knowingly did, as opposed to who they were or what they did accidentally, was seen as a better way to send the message to persons on what kind of conduct was acceptable to maintain a desirable civic order.

Sir James Fitzjames Stephen was a prominent part of the intellectual movement that supported these changes to the Common Law of crimes. He was also the main draftsman of the Indian Evidence Act of 1872, which explains why the statute adopted some of these ideas rather early. In the years since, Indian law has not moved away from these precepts. Much like the rest of the Common Law world, evidence of bad character continues to be generally irrelevant towards proving guilt or innocence in India, but it can become relevant in certain exceptional cases specified by statutes. Today it is difficult to find many people disagreeing with the idea that nobody should be sent to prison only based on the bad reputation they harbour, for what if it might happen to you? 

Note, that the above discussion is about proving guilt or innocence through character evidence. If we find proof of guilt on completing trial, character evidence comes right back into the spotlight when courts are deciding punishment. Prior convictions can mean higher punishments, and having none can entitle a defendant to probation instead of jail time. This shifting of focus from the offence back to the offender at this stage is standard practice, especially so in a system like India, where trial judges have vast discretion at the sentencing stage and can award sentences anywhere between zero and the prescribed maximum. 

The Hidden Salience of Character Evidence Today

On paper, this is perhaps the end of the matter when it comes to evidence of bad character, but in practice it is not so. Consider a phenomenon that has been demonstrated in India, in context of the limits placed on use of character evidence to question the credibility of victims testifying in rape trials [Proviso to Section 146, IEA]. The rule was designed to curb decision-making based on ideal stereotypes of rape victims: it can’t be rape since the victim had an active sex life, etc.

In his book, Professor Satish demonstrates that, in practice, the rule only displaced such inquiries about a victim’s character from the guilt-determination phase to the sentencing phase. His empirical study demonstrated that sentences were higher in cases where the victims fit the stereotype of vulnerability, as against cases where they did not. Admittedly, the text of the rule does not bar the judge from considering the evidence of a victim’s character at the sentencing phase. But surely this indirectly perpetuates the same stereotypes that the rule was intended to eliminate.

This example nicely illustrates the hidden salience of character evidence today. Although the last century saw limits being placed on the relevance of character for questions of guilt or innocence, it is becoming increasingly apparent that notions of character — who you are — are still very pertinent in how criminal law is administered. While the example above was about victims’ interests, the same issue also exists when we consider the position of defendants: character evidence plays a big role in how persons are targeted as suspects and defendants in the criminal process. 

The argument is simple: None of the changes introduced to restrict the use of character evidence puts a handbrake on how crimes were investigated. To understand this better, imagine criminal law as a funnelling exercise. It is impossible to discover all instances of crime. Out of reported instances, it is again impossible to prosecute each of them for want of resources. Enforcement of law has a necessary selectiveness; an exercise of discretion by the police decides which cases merit the use of precious government resources.

How does the police exercise this discretion? They do so by employing a strategy of “rounding up the usual suspects”, i.e., on the basis of the very notions of bad character that the law has deemed improper for use at the trial. As a result, across the world, the data on persons arrested and prosecuted for crime appears skewed. Persons who are poor or from minority and / or immigrant groups are far more likely to be targeted by the police as suspects while choosing which cases to prosecute. In India, this has been witnessed in the disproportionate numbers of Muslim men being arrested in custody.

Character Evidence and Prosecuting Terror 

A lack of effective checks on the discretion of law enforcement agents is at the heart of the hidden salience of character evidence in the criminal law today. This is true for India as well. There is no set of rules or standards that guides which offences are classed as cognizable (offences allowing arrests without judicial warrants) leading to an unprincipled growth in cognizable crimes over time. A wide array of cognizable crimes gives legal sanction to the police for pretextual arrests and prosecutions and an opportunity to enforce character-based prejudices rather than the pursuit of genuine threats or suspects.

Broadly defined criminal laws also give wide, unchecked discretion to the police. These can be very deceptive as they often have a mental element like “knowledge” or “intention” clearly set out, as if the lawmakers are telling us that this is a proper crime and not a regulatory offence that criminalises without any need of showing culpability. But once we move past this, it is quite common to find a broad definition of the conduct that is being criminalised. Since the police cannot be expected to prove existence of the culpable mental element when they initiate the criminal process by arrest, effectively, through broadly defined criminal laws the law confers a license on the police to arrest anyone they desire. 

To see this in play, imagine a statute that makes it a crime to knowingly offer financial support to an organisation banned by the government. Now, imagine another law that makes it a crime to “associate” with a banned organisation with an “intention to further its activities”. Remember that the police will normally initiate the process based on observable conduct and not the mental element that accompanied it. Keeping this is mind, it is evident that the first example offers a degree of clarity: the criminal conduct is specified, and consequently helps confine the compass of suspicion for the police to justify arrest and investigation. The second is like clay putty in a child’s hands, as permitting police to arrest for suspected “associations” means, according to the dictionary, they can arrest for suspicions of any connection between two entities. 

These are not imaginary crimes but part of India’s main anti-terror statute, the Unlawful Activities Prevention Act 1967 (UAPA) [Sections 40 and 38, respectively]. Another example of an offence that has a clearly stated mental element, coupled with a broad range of conduct that can trigger the crime is Section 15 of the UAPA. This provision criminalises "Terrorist Acts" by first specifying the mental state, but then expands the range of proscribed conduct to include damage to any property. What this translates to is a vast ocean of unregulated discretion with the police to target persons who “look like” trouble, or are “anti-national types”, or “urban maoists” through the UAPA without any hard proof of conduct that justifies the kind of fear that the label of terrorism generates. 

Is this why an overwhelmingly large number of prosecutions under the UAPA not bring convictions? Perhaps. But the problem is that the trial stage, where an improper and possibly a character based prosecution can be screened out after being tested for proof and reasonable doubt, comes after an excruciatingly long wait in UAPA cases. Trials under the UAPA involve a long waiting period that is usually spent by defendants in custody, since the UAPA adopts a much harsher set of rules for granting bail and also allows for longer pre-trial custody during investigations [Section 43-D, UAPA]. Thus, even though the rule of law mandates that individuals must not be targeted and tried simply because of who they are, the prosecution of anti-terror crimes in India actively perpetuates these consequences.

Conclusion

Criminal trials counteract the intuitive notion that our past acts can serve as a predictor of future conduct. But it would be a mistake to assume that the rules of criminal trials spread consistently throughout the legal system. A cursory look confirms that character evidence remains relevant in the stages of sentencing with express legal support. But a closer look reveals the existence of a hidden salience of character evidence, often working to undermine the very goals that the exclusion of such evidence at trials was designed to achieve. 

Ending this haphazard nature of regulation for character evidence will certainly help to bring any legal system in alignment with its professed aims. Thus, if Indian legislators really do think that the evidence of character is useful for determining guilt or innocence, then they should effect such changes. The limited legislative engagement with these issues in recent decades suggests that India’s professed values support the opposite conclusion, however, which then means that steps must be taken to reduce the role character evidence plays through the criminal process.

An obvious point of reform would be placing stricter checks on the enforcement of laws by police by arrests. It is something that the Indian Supreme Court has supported, albeit in a haphazard manner itself through cases like Joginder Kumar, DK Basu and Arnesh Kumar, and so is arguably a point of intervention that can gather broad consensus. But this will take time, and in that time, hundreds of persons will remain in custody awaiting a trial in their cases, having been prosecuted under vague offences such as the UAPA. 

Perhaps the first point of intervention, then, is to reform the process of pre-trial custody in this context. Given the high probability of character-based prosecutions which do not withstand the test of "beyond reasonable doubt", should the law stick to a process which not only allows for upto six-months of custodial detention during an investigation, but also makes it virtually impossible to grant bail till conclusion of the case? If the trial cannot follow in a conviction, we must ensure that the process is not a proxy for the same punishment.

A Closer Look at "State of Maharashtra v. Mahesh Tirki & Ors." - Part II

The previous post laid out the allegations against the defendants in State of Maharashtra v. Mahesh Tirki & Ors., and explained the nature of the offences that the defendants were charged with. In this post, I discuss how the prosecution proved its case, and flag certain issues with how the Court treated the evidence. The analysis is divided into examining the case against Accused Nos. 1 and 2, Mahesh Tirki and Pandu Parote, separately from the case against Accused Nos. 3, 4, and 6, i.e. Hem Mishra, Prashant Rahi, and Dr. G.N. Saibaba. I don't discuss the case against Accused No. 5 distinctly, as his case overlaps with both sets. I conclude suggesting that. beyond differences that reasonable persons might have over how the Court appreciated the evidence, the judgment offers a stark reminder of the inherent problems in the UAPA since its amendments in the last decade.

The Case Against The Couriers

The prosecution alleged that Accused Nos. 1 and 2 were in contact with naxals in Gadchiroli forest area, and had helped them on 3-4 times before the incident in August 2013. The evidence to prove all of this largely consisted of the recoveries made from their personal searches and their confessions under Section 164 Cr.P.C. The searches produced platform tickets for May 2013 from both persons, one of the earlier occasions when they had acted as couriers. Accused No. 2 had a newspaper and an umbrella, which were items used as part of an underground code amongst naxals. Accused No. 1 had pamphlets of Maoist literature, proving he was involved. All of this was backed up in narrative form by their confessions. The defence argued that the search memo had been overwritten, that the witness to search had acted as a witness for P.S. Aheri on multiple occasions, that the arrest was tainted as despite the Bus Stand having many people around, the police chose not to involve any independent witness. The arrest was assailed as suspicious for other reasons too. First, the newspapers were dated 19th & 20th August, rather than the 22nd. While the police found platform tickets from three months ago, it did not find bus tickets for a journey that would've been made that day. Lastly, the defence urged that the Court draw an adverse inference against the prosecution, for despite having called for the Call Detail Records of these Accused persons they had not been filed in Court, probably because those documents confirmed that the story was not as per the prosecution case. Lastly, the confessions were challenged as being made under duress and police torture [Paras 23-106, 141-45].

The Court admitted the evidence over all of the defence objections. The central justification offered was that such procedural lapses could not be fatal to the case if the evidence was otherwise reliable, while the torture allegations were rejected [Paras 107-130, 161-183]. In this, the Court did nothing remarkable, as several decisions have held so, and an appellate court may yet conclude that the Court was not right in this approach. But more problematic for me was how the Court drew its conclusions from the evidence that it so accepted. I'll only raise two points. 

First, the Court was convinced about the newspaper and umbrella being a secret code argument (something that implicates Accused Nos. 3, 4 and 5 as well). But what's the basis for that? The Court said this is "confirmed" by a document that the police recovered three weeks later during the search of Accused No. 6's house [Para 100, Pg. 90 of Ex. 267]. Surely the Court must base this on something that the police had before the arrest itself? What's more, a look at the document shows that it is an investigative journalism piece, freely available online, dating back to 2006, i.e. more than seven years before the arrests. The journalist suggests that for her, this code had been suggested. How does that lead to the conclusion that anyone holding an umbrella and a newspaper is communicating with members of banned organisations? Would a covert, banned terrorist organisation still follow the same methods? Is this proving the fact "beyond reasonable doubt"? Second, the Court was convinced that the Accused rendered help to the naxals on 3-4 occasions and this was a factor towards finding their guilt. But, while accepting their confessions (allegedly made under duress), the Court all too quickly excludes the part where they said the naxals beat them and forced them to help. Why does the Court exclude this? Because it thinks they are lying as they have helped naxals before, and if they were really beaten they would have gone to the police. Really? It strikes me as naive to expect that, when dealing with "terrorists" who have killed many police officers, as the Court itself reminds us.

The Paraplegic "Think Tank" and His Associates 

The conspiracy with which the defendants were charged was not imagined as a co-equal one. Instead, at its hub was Accused No. 6 - the paraplegic "think tank" running the show from Delhi. It was alleged that that both Accused Nos. 3 and 4 had travelled to Gadchiroli / Chichgad at his instance. He had given both of them documents to deliver to underground naxals in the forest area. The allegations were proved almost entirely from the materials seized from the house search of Accused No. 6 and upon arrest of Accused Nos. 3 and 4.

Accused no. 6 was placed at the heart of the conspiracy through several letters, photographs, and video-clips. He was shown to be a ranking member of the Revolutionary Democratic Front [RDF], a "front organisation" of the CPI (Maoist). Further, he was alleged to be a member of the CPI (Maoist) as well, conducting its international operations and writing letters under the pseudonym of "Prakash". The prosecution led many papers / clips to show that the RDF and CPI (Maoist) were both committed to an agenda of violent revolution, and that Accused No. 6 was actively involved in these efforts. The links with the other accused were drawn mainly through photographs of them attending events where government policy was criticised, some of these under the RDF banner, as well as their Call Detail Records [CDR]. These showed that the co-accused had been in contact with each other during the months before September 2013, and that on 18.08.2013 all of them were in the Delhi University area [Paras 397-502]. For the Court, the value of CDR evidence was enhanced by the defendants choosing to deny that they had ever known each other or had been in contact, when given a chance to explain these incriminating circumstances under Section 313 Cr.P.C. [Para 563].

Again, I will not dwell on the admissibility objections that were raised, suffice to note that they were several [Paras 191-198, 297-300, 315-317, among others], and almost all of them were rejected [the Court accepted that the screenshots of Hem Mishra's Facebook account were inadmissible, Paras 581-91]. Instead, the focus is on the conclusions that the Court drew from the evidence.

First, take the pseudonyms. For the Court, the claim of Accused No. 6 being "Prakash" seemed to shine through a couple of the letters referring to his "handicapness"[Paras 497, 500]. But that's not all. The Court was equally convinced that Accused No. 6 was "Prakash" because one document said Prakash said the latter hadn't finished some work because his computer hard-disk crashed. And, since one of the external hard-disks seized from Accused No. 6 was also not working, this proved he was Prakash [Paras 339, 345]. Is this proof, or is the judgment not fully reflecting what was argued? The Court later agrees that "Chetan" is another pseudonym for the same Accused, a name in the documents seized from Accused No. 3, and thus crucial in linking the two accused. What's the basis? This 2013 document of the CPI (Maoist) said that "Chetan" had responsibilities for West Bengal, Kerala and Delhi, which were areas that Accused No. 6 was handling with other persons as per a May 2007 letter of the RDF [Paras 770-771]. What about the interregnum? Are RDF and CPI (Maoist) not separate at all? What about questioning the other RDF members whose names are present to find out more? Lastly, there is an alias issue for Accused No. 4 as well, as the Court accepted that he was also one "Mahesh" as found in CPI (Maoist) letters. The basis? A charge-sheet that was filed against him in another Court that listed Mahesh as an alias [Para 784]. The Court didn't rely on the judgment, and nowhere are we told about what happened in that case. Instead, the Court relied on the charge-sheet, a document only constituting police allegations, which by definition is not evidence. Surely there must be some stricter test for identifying aliases and pseudonyms, to prevent a case where any alias can be foisted on persons as per the convenience of the police case based on paltry evidence.     

Second, consider the kinds of material being used to prove membership. Take the case of Accused No. 6. Besides the letters under pseudonyms, and the RDF material, the prosecution relied upon a lot of other evidence, which the Court unquestionably accepted as incriminatory. This included: (i) some interviews by Accused No. 6 to news agencies detailing the history of the communist movement in India [Paras 453, 456, 480], (ii) attending public meetings critical of government policy and seeking release of political prisoners, involving hundreds of people [Paras 452, 457], (iii) being part of a team of persons - including Justice BD Sachar and Prashant Bhushan - seeking to mediate between the government and the CPI (Maoist) [Para 463], (iv) letters about teachers organisations in Delhi University, and (v) having electronic copies of any pamphlets, statements, videos, that might be found freely circulating online [E.g., Paras 471, 479, 488, 541]. Nowhere does the Court specify if it considered all of this to be incriminatory because it already found Accused No. 6 to be a member. Rather, it seems that the Court considered all of this as proof of membership and, perhaps, proof that a person is associated / professing association / supporting a banned terrorist organisation such as the CPI (Maoist). If attending public meetings critical of government policy constitutes association or membership, in a meeting not held by the banned organisation, then these are dark times indeed. Such an uncritical acceptance of the allegations casts a chilling effect that resonates much beyond the walls of the Gadchiroli Sessions Court.   

Conclusions - The Unconstitutional Lightness in Proving Terrorism?

There is no doubt that the constitutional courts of India have held that procedural lapses shouldn't come in the way substantial matters. There is also no doubt that the same courts have held, that the more serious the allegations, more sternly must the prosecution case be tested. The trial and judgment in State of Maharashtra v. Mahesh Tirki & Ors. show that only one of these precepts was followed by the Court, as almost all the procedural lapses were explained away together with a benign scrutiny of the prosecution case. The consequences of such a position, as I mentioned above, are drastic. 

But a large part of the court's approach stems from the problems in the UAPA itself. I only highlight three issues from the verdict here. First, is the issue with the RDF being a "front organisation". The convictions under Sections 20, 38 and 39 are partially based on this conclusion. But nowhere does the UAPA define a "front", and nor was it explained in the Gazette Notification by which the relevant entry concerning the CPI (Maiost) was made in the First Schedule. Is this a reasonable restriction on Article 19(1)(c)? Or is this undefined phrase an unconstitutional delegation of powers on low level executive officers? Second, is the overlap between Sections 20, and Sections 38 and 39 of UAPA. What different levels of proof are needed for these three offences? Can a person be convicted for being a "member" of a banned organisation and being a person who supports, associates, or professes association with that same organisation? Third, and finally, should there not be a clearer line between an "unlawful activity" and a "terrorist act"? Here, the defendants were convicted under both, for committing / advocating unlawful activity (Section 13) and conspiring to commit terrorist acts (Section 18), for the same underlying conduct. Would that not be barred under Section 71 of the Indian Penal Code 1860? Or, if a Court has doubts about the specific offence, wouldn't Section 72 of the Penal Code apply to only attract the offence with the least punishment?

Vague legislation is bad. Vagueness in criminal legislation is unconstitutional. Vagueness in criminal legislation imposing sentences of life and death is reflective of utter disregard for the constitutional protection of life and personal liberty secured for all persons in India. That is where the UAPA stands. The inherent vagueness and over-broad nature of the statute was worsened by clunky amendments in the 2000s, and has been further aggravated by the recent entries into the First Schedule listing banned organisations. At a time when the Supreme Court is lapping adulation for having reaffirmed the constitutional commitment to protection of minorities, the judgment in Mahesh Tirki serves as a reminder that a lot still needs to be done to protect the most vulnerable minority of them all: persons accused offences against the state.