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.

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.  

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

On March 7, 2017, the Court of the Ld. Sessions Judge Gadchiroli, passed the judgment and order on sentence in State of Maharashtra v. Mahesh Tirki & Ors. [Session Case No. 13 of 2014, and 130 of 2015]. The essence of the 837-page long document is that the Court convicted Mahesh Tirki, Pandu Narote, Hem Mishra, Prashant Rahi, Vijay Tirki, and Dr. G.N. Saibaba, for offences punishable under Sections 13, 18, 20, 38, and 39 of the Unlawful Activities (Prevention) Act, 1967 [UAPA] read with Section 120-B of the Indian Penal Code, 1860 [IPC]. Except Vijay Tirki, whose highest sentence was a 10 year prison term, all the other defendants were sentenced to life imprisonment. News reports suggest that some of those convicts have preferred appeals. 

Considering recent developments, where the Maharashtra police has been in the news for conducting pan-India investigations into Maoist activity, I tried to search for any analysis of the 2017 decision which had similar overtones. Despite that case generating much attention, I only found one article by Susan Abraham in the Economic and Political Weekly discussing the verdict. These posts are largely an attempt to fill that gap. This initial post lays out the broad contours of the allegations and explains the offences involved. The next post discusses how the prosecution proved its case, and points out some issues with the conclusions arrived at by the Court.  

The Investigation  

According to the prosecution case, Asst. Police Inspector Atul Shantaram Awhad [PW-6] at P.S. Aheri, received "secret information" that Accused Nos. 1 and 2 - Mahesh Tirki and Pandu Narote - were working for banned organisations as couriers, providing information to underground naxalites and taking them to places of safety [Para 5]. On 22.08.2013, around 6 PM, the officer went with staff to Aheri Bus Stand and saw the two accused. Around 6:15 PM, they were joined by another person and "started talking with each other suspiciously". The officers made their move, making "enquiry" with the persons who gave evasive answers. Because of this, PW-6 arrested them and took them to P.S. Aheri [Para 6]. Personal searches revealed Accused Nos. 1 and 2 revealed had a platform ticket dated 29.05.2013 for Ballarshah Railway Station, a cellphone, and several identity papers. Accused No. 2 had an umbrella and a newspaper (dated 20.08.2013). Accused No. 1 also had papers allegedly concerning CPI (Maoist) and Revolutionary Democratic Front [RDF]. The third arrested person was Hem Mishra, Accused No. 3, and his search yielded a newspaper (dated 19.08.2013), a camera, a memory-disk, and a railway ticket from Delhi to Ballarshah dated 19.08.2013.

Based on this, an FIR was registered at P.S. Aheri, under Sections 13, 18, 20, 38, 39 of the UAPA, read with 120-B of the IPC, and the investigating was handed over to Deputy S.P. Suhas Bawche, PW-11 [Para 7]. Interrogation of Accused Nos. 1 and 2 disclosed that they went to the Bus Stand to meet Accused No. 3 and take him to Murewada Forest under instructions from one "naxal lady DVC Narmadakka". Accused No. 3 disclosed that he had been given a memory card for Narmadakka by a person in Delhi who "who was [an] active member of banned organisation[s] CPI Maoist and RDF". He also "expressed his desire" to show police his Facebook account (done on 26.08.2013). Accused No. 3 also divulged details about the involvement of one Prashant Rahi, Accused No. 4, and based on this Rahi was apprehended at Chichgad on 01.09.2013 together with Vijay Tirki, Accused No.5. Both were searched on arrest in the presence of witnesses. Both had a copy of "Dainik Bhaskar" and a cellphone. Accused No. 4 also had "eight papers relating to naxal literature along with type written papers of under-trial prisoner Maoist leader Narayan Sanyal" [Paras 8-9]. They were brought to P.S. Aheri early next morning and searched again. 

The investigation revealed that Accused No. 5 was acting under instructions from one Ramdar, and was to take Accused No. 4 to meet senior Maoist cadre in the forest area. Subsequent interrogation revealed that the person in Delhi mentioned by Accused No. 3 was Dr. G.N. Saibaba, and so DSP Suhas Bawche applied to the Judicial Magistrate First Class, Aheri, for a search warrant on 04.09.2013. He got the warrant on 07.09.2013, left for Delhi on 09.09.2013, and on 12.09.2013 he searched the house with the help of P.S. Maurice Nagar. [Paras 10, 13]. Accused No. 6 and his wife were at home and present throughout the search, which revealed numerous electronic devices, books, magazines, and other articles [Para 14]. After a "thorough study of seized devices and documents", which involved sending them to the Central Forensic Science Laboratory in Mumbai, DSP Bawche sought to arrest Accused No. 6 but couldn't due to protest by "members of banned organisation". He got an arrest warrant on 26.02.2014 and arrested Accused No. 6 on 09.05.2014 who was then remanded to custody [Paras 16-17]. 

The Alleged Offences 

It was alleged that the accused persons committed offences punishable under Sections 13, 18, 20, 38 and 39 of the UAPA, read with Section 120-B of the IPC (the conspiracy offence). I've extracted the essential content of the UAPA offences below:  

1. Section 13 UAPA has three sub-clauses. Section 13(1) punishes anyone who takes part in, or "advocates, abets, advises or incites" commission of any "unlawful activity" with a maximum of 7 years in prison. Section 13(2) punishes persons assisting "in any way", unlawful activity of an organisation after it has been declared unlawful under Section 3 UAPA. This carries a 5 year maximum sentence.     
2. Section 18 UAPA punishes anyone who "conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates" the commission of "terrorist acts" or any acts preparatory to their commission. It carries a 5 year mandatory minimum sentence, the highest sentence being life imprisonment. 
3. Section 20 UAPA punishes being a member of a "terrorist gang or terrorist organisation which is involved in a terrorist act", with a maximum sentence of life in prison. 
4. Section 38 UAPA punishes someone "associated, or professes to be associated" with a terrorist organisation, "with intention to further its activities". It carries a maximum ten year sentence. 
5. Section 39 UAPA punishes giving "support" to terrorist organisations, support here going beyond financial assistance to encompass a range of acts done with the intention of furthering the activity of the organisation. It carries a maximum ten year sentence. 

Basics
The UAPA, enacted in 1967, originally dealt only with "unlawful activity". By enacting the Terrorist and Disruptive Activities (Prevention) Act in 1985, and the Prevention of Terrorism Act in 2002, Parliament left no doubt in suggesting the UAPA didn't cover acts of terrorism. But by 2004, both had been repealed. To prevent a potential vacuum, the terrorism offences in those statutes were grafted onto the UAPA. Thus, today the UAPA deals with two qualitatively different kinds of criminal acts - "unlawful activity" and "terrorist acts". The former is defined in Section 2(1)(o) and is concerned with acts adversely affecting India's sovereignty and territorial integrity. The latter, defined under Section 15(1), has a more complex definition. It specifies certain kinds of acts (involving violence or a show of violence), but only if these are done with the intent of affecting the unity, integrity, security, sovereignty and economic security of India, or, with intent to strike terror.

Allegations Based on Conduct
This focus on violent conduct is one way to try and understand the different scope of "unlawful activity" and "terrorist act", suggesting that even when there is violence, only the most serious cases will be defined as a "terrorist act". The problem, though, is that one needn't be accused of actually committing a terrorist act. The scope of liability is stretched far beyond that under Section 18 UAPA. This covers a conspiracy to commit terrorist acts, or attempts and participatory conduct such as abetment, incitement, and knowing facilitation. It also punishes conspiring, attempting, abetting, inciting, and knowingly facilitating, acts preparatory to the commission of terrorist acts. Crucially, the provision does not differentiate between the two in terms of sentence: everything carries a mandatory minimum 5 years and a possible life sentence. Theoretically, this allows the prosecution to stretch the scope of liability as per its imagination. The only thing stopping such flights of fancy from resulting in serious oppression is active judicial scrutiny, which throughout the world historically, has not always been most apparent in matters of national security.

Allegations Based on Membership / Association / Support
The other offences being discussed are similar insofar as they depend on having some connections with an organisation, either an "unlawful organisation" or a "terrorist organisation" as the case may be. The Central Government has powers to ban such organisations under the Act. For our discussion, what matters is that in 2009 the Central Government amended the First Schedule to the UAPA to add "Communist Party of India (Maoist), all its formations and front organisations" in the list of "terrorist organisations". Note, that while some organisations such as SIMI and ULFA have been declared as both, Terrorist Organisations and Unlawful Organisations, the CPI was not banned as an "Unlawful Organisation". Note, also, that the term "front organisation" is not defined in the UAPA itself. Having clarified this, what is the conduct being dealt with in Sections 20, 38 and 39? Membership, association, and support are not statutorily defined and the provisions have no illustrations. How their content is determined, again, is at the mercy of police imagination. What is clear, though, is that the UAPA imagines that support, professing association, and actual association, all imply a certain distance from the organisation itself. This is why, in Sections 38 and 39, there is a need to separately show that a person intended to further the organisation's activities by her acts, and those provisions carry a relatively lighter sentence. Membership, though, assumes shared intent with the organisation, and so doesn't ask for intent to be separately established and carries a life sentence reflecting the seriousness of this proximity. Now, in cases of terrorist acts and conspiracies, where direct evidence is unlikely, it is obvious that drawing these fine distinctions between support, professing association, association, and membership is a very difficult task. The UAPA makes matters worse as it provides no safeguards by way of evidentiary rules that would help judges decide what evidence is sufficient to label someone as a member of a terrorist organisation, as opposed to a supporter or associate, with the possibility of a life sentence. Nor does it clarify whether a member can also be convicted for the lesser offence of being associate or professing to be one.

Charges and the Trial 
The formal order on charge is not part of the 837 page long judgment. Instead, at different places, this lengthy extract can be found summarising the prosecution allegations:

On or before 12.09.2013 the accused hatched criminal conspiracy to wage war against the Government of India and to collect people with the intention of waging war against the Government of India, to overawe by means of criminal force the Government of Maharashtra and the Government of India, to shake and reduce the faith of the common citizen in its democratic Government by large scale violence destruction of lives and property and thereby destabilise the system of Government established by law, to organise the spread of secessionist and rebellious thoughts by holding covert and secret meetings, to collect money in India for the said conspiracy, to continue unlawful acts of the CPI (Maoist) and Revolutionary Democratic Front (its frontal organisation), to continue activities of Terrorist Gang, banned terrorist organisation, to conspire advocate incite abet and knowingly facilitate the commission of terrorist act and unlawful activities by violence / other unlawful means, to take part or commit or advocate, abet or incite the commission of unlawful activities, being the member of banned terrorist gang. (emphasis mine) [Para 2. Para 936 carries the same text with the date as 12.09.2009]

Despite the omnibus nature of this paragraph, note that (i) "preparatory" is absent, suggesting that the conspiracy allegation was for committing terrorist acts and not something preparatory; (ii) the words "associate / profess to associate" are also absent. "Support" is also absent, but there is a mention of organising meetings. Besides these possible omissions, there is some doubt about the inchoate offence alleged: what did they do, out of "conspire advocate incite abet and knowingly facilitate"? The repeated reference to "conspiracy" suggests it might be the allegation. And, finally, note that the RDF has been specifically labelled as a "front organisation", relying on the language in relevant entry from the First Schedule of the UAPA banning the CPI (Maoist).

The prosecution proved these allegations by leading 23 witnesses and many documents, photographs, video-clips in evidence. The defence chose to lead no evidence. How did the Court conclude that the case was proved beyond reasonable doubt? I discuss that in the next post. 

Justice Must Not Only Be Done ....

[caveat: this post can fall in the rant domain unlike the usual content on this blog]

I must admit, I have not always fairly appreciated the contribution made by the Indian Supreme Court to our legal system. Its not without reason that a general sentiment prevails in country that the Court remains a white knight amidst the prevailing corruption. The problem is, and pardon the recurring rhetoric, we forget that with great power came great responsibility. The bigger problem actually is, that we forget appearances are often deceptive. What appearances? The appearance of the judiciary having more power than it possesses. The Court has taken up the role of investigator, judge and executioner. What it has stopped doing over time, is providing steady and coherent adjudication of legal issues. The multitude of voices emerging from the Court usually lends itself to a noisy cacophony contributing to the chaos. That's not all. This hyper-activism is corroding our democratic process. A graph would plot well how increased judicial activism correlates with decreased public participation in democratic processes. Maybe that's why Justice Frankfurter advised Sir B.N. Rau against investing the judiciary with power to set aside laws made by an elected legislature. He believed in a democracy, that must remain the prerogative of the electorate, and not the decision of an un-elected judiciary. 

Yesterday, the Court had donned its executioner hat, and in fine form. After what has been labelled as an "unprecedented day" in its history, it confirmed the death sentence for yet another human being, who was hanged to death merely hours later. Imagine, dying because you managed to convince only 1 rather than 2 other human beings that you deserve to live. We condemned the white men who sent Indians to the gallows. It seems like our condemnation was only with the choice of executioner. Mr Seervai observed the same in context of our retention of the ordinance powers with the executive. In any case, the curious case of death by judgment is the procedure seemingly invented over time by the Supreme Court. Its procedure which the Court itself seems only too happy to ignore. Take this latest episode from the start:

a. The TADA Court issued a 'suo motu' death warrant on 30.04.2015 without giving the accused any opportunity to defend himself. The execution was fixed for 30.07.2015, a decision conveyed to the convict only on 13.07.2015. As opposed to the guaranteed 90 day period for alternate remedies to death row convicts [Shabnam v. Union (WP Crl. 89/2015)], the convict here had only 17 days, for no fault of his own.

b. This interpretation of procedural laws was held by Justice Misra as not being retrospective, thereby setting aside this objection. Its rather settled though, that retrospective operation doesn't concern procedural rules. Just look at how many appeals are getting affected by the recent re-interpretation of Section 65-B of the Indian Evidence Act.

c. Suddenly there is an objection with the second mercy petition, where it is often seen that multiple clemency petitions are preferred by convicts when new grounds emerge. Short shrift was given to the new grounds here - schizophrenia - despite the recent concern shown by the Court to such cases in Shatrugan Chauhan & Ors. v. Union [WP Crl. (55/2013)].

d. The aforementioned case also held that 14 days must pass between rejection of the mercy petition and the execution, for the prisoner to "mentally prepare himself". Justice Misra observed the delay in filing the fresh mercy petition meant staying the execution would be a travesty of justice. So we mean that although someone is certainly being executed, it would be a travesty to postpone that death for a few more days?

e. Given these new grounds, it still took less than half a day (record time in fact) to reject the mercy plea. If any important decision is taken by the executive within hours, would it not normally become suspect for lack of due application of mind? Was there a fair consideration of the fresh grounds? 

In hindsight, it appears that the only reason the Court was convened at 3 AM was to ensure no changes were required of the Nagpur execution. Take a moment and go back to the narration of events which you'll find splashed across the news. Forget about the sensationalism. Take a look at that supposedly neutral chimera called the law as it stands today on the issue of executing another person. Just ask yourself: was justice done, and was it seen to have been done if viewed from the eyes of an outside observer? Any law student will tell you that justice must not only be done, but be seen to be done, and I don't think the answer is an easy one here. Our Court is Supreme but not infallible. Days like this are painful, and costly, reminders of this harsh reality.

Guest Post: Arup Bhuyan, Article 19(1)(a) and Bail Jurisprudence in Terror-Related Cases

I am very proud to present a guest post by Mr Gautam Bhatia, who is currently practising law in Delhi and is responsible for the Indian Constitutional Law and Philosophy Blog. 

Introduction

The distinction between “advocacy” and “incitement” is one that is familiar and important for constitutional courts world over. Advocacy of dangerous and subversive ideas is constitutionally protected, unless it rises to the level of incitement to violence, or to lawless action. In India, the distinction has had a troubled history, but it was endorsed most recently last month by Justice Nariman in Shreya Singhal vs Union of India, while striking down S. 66A of the IT Act for its failure to distinguish between the two concepts. Four years ago in 2011 though, the Supreme Court had already distinguished advocacy and incitement in a little-publicised, but extremely important case: Arup Bhuyan vs State of Assam.

Appreciating Arup Bhuyan

The case involved a challenge to the appellant’s conviction under Section 3(5) of the now-repealed Terrorist and Disruptive Activities (Prevention) Act [“TADA”], which criminalised “membership” of a terrorist gang or organization. This provision is in pari materia Sections 10 and 20 of the Unlawful Activities Prevention Act [“UAPA”], which replaced the TADA as the umbrella legislation for prosecuting terror suspects. While setting aside the conviction, Justice Katju read down S. 3(5) to save it from unconstitutionality on the grounds of Articles 19 and 21 of the Constitution. He did so by distinguishing passive from active “membership”, and restricted the latter to actual commission of violence, or incitement to violence. This distinction, naturally, closely tracks the difference between advocacy and incitement.

Arup Bhuyan distinguished between active and passive membership in a way crucial to UAPA cases, but beyond its conceptual articulation of the issues, that decision itself did not break new ground. In State of Kerala vs Raneef, decided in 2011, the Supreme Court upheld the Kerala High Court’s grant of bail to a person accused of UAPA offences, for being a member of the Muslim group “Popular Front of India”. Evidence, as ever, included “certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad'.” The Court noted that there was no prima facie evidence against the accused to warrant the restrictions on bail under S. 43(D)(5). Possession of literature was found insufficient to demonstrate active membership, and the doctrine of ‘guilt by association’ was unknown to the Constitution. A few months before, in Vishvanath vs State of Gujarat, another UAPA case built on possession of literature/propaganda, the Gujarat High Court held that “possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence.”

The importance of this jurisprudence cannot be overstated. In India, where trials for terror cases drag on for years, bail is perhaps the most crucial safeguard of personal life and liberty. But its importance is perhaps matched only by its fragility, evident upon evaluating the effect of the decision on bail jurisprudence in terror cases.

Arup Bhuyan: Impact

Section 43D(5) of the UAPA restricts the discretion of courts in granting bail: the accused “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.” In May 2011, the Anti-Terrorism Squad arrested six members of the cultural group, the Kabir Kala Manch, for offences under the UAPA. It was alleged that the KKM had close links with the banned Communist Party of India (Maoist), which was sought to be proved through the recovery of allegedly “incriminating literature and propaganda”. Accordingly, the Sessions Court refused to grant bail.

Nonetheless, in two separate applications before the Bombay High Court, Justice Thipsay granted bail. In doing so, he relied directly on Arup Bhuyan. Possession of literature relating to a banned organisation was not, in itself, prima facie evidence of active membership as understood in Arup Bhuyan. Consequently, Justice Thipsay held:

     “Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organization, and were perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members - much less such members as would attract the penal liability - of the said organization.”

Conclusion

In conclusion, it is also important to note that the State has asked for a review of Arup Bhuyan. In light of the discussion above, it is submitted that setting aside or watering down Arup Bhuyan will present a grave risk not just to free speech jurisprudence, but more directly and immediately to the right to personal liberty and fair trial under the Constitution.

(The author has been unable to find public-domain links to some of the cases cited in this essay. He welcomes any assistance on this issue.)

In Terrorem: Bow thy Humble Supplicant

[Caveat: this post may be tagged as a rant]

During my brief and uneventful stint at the helm of National Law School of India Review (NLSIR), I was involved with the hosting of a Symposium which concerned the apparent conflict between security legislation and individual liberty. In the interests of ensuring security, the legislature seems overeager to withdraw procedural and other safeguards guaranteed to accused persons which help ensure individual liberty is not whimsically compromised. This well documented phenomenon cuts across jurisdictions and has been extensively written about. My personal favourite remains Professor Andrew Ashworth's Hamlyn Lecture of 2002, which can be found here. 

Why talk about it here? Because the recent episode surrounding the Gujarat Control of Terrorism and Organised Crime Bill 2015 (GCTOC) in times of relative peace makes one think that there is a long way to go. As is already known to most of us, the Bill dilutes several procedural and evidentiary rights guaranteed to an accused to presumably help secure convictions. I stress upon this aspect of relative peace: most instances of stringent anti-terror legislation rode high upon the great wave of emotion generated from particularly terrifying episodes of violence. The TADA Ordinance of 1985 and the 1987 Act were the aftermath of gruesome riots in the 1980s. MCOCA came at a time Mumbai was engulfed with mob violence in the 1990s. POTA came in 2002 after attacks on Parliament in 2001. The infamous Patriot Act in the USA came after 9/11. Where is the attendant terrorist plot behind the GCTOC? There is none, which is why support for the Bill must provoke serious questions about where society stands on the issue of protecting individual liberty. 

These statutes continue to strike me as rather odd. Considering the gravity of the charge, one assumes courts require the most reliable evidence to conclude the question of guilt or innocence. But repeatedly we find the system turning to ends-based reasoning and providing severe dilutions which make it possible to lead sub-standard evidence as proof of guilt. A prime example being the favourite provision of rendering confessions to police officers admissible. Prosecutions for serious crime charges through statutes which relax the requirements of proof are too high a cost to offer society a placebo, i.e. its a bad argument to say we need these laws for society to think something is being done by the police. It in fact grants the police legislative backing to take an easy way out, which they won't mind and thus resort to adding serious crime charges to an array of situations as has happened with the MCOCA.  

The Latin phrase In Terrorem refers to the practice of invoking fear as a basis to seek compliance from individuals to protect private rights. It seems to have found immense favour with the State. By enhancing the repertoire of offences to label nearly everything a crime on one hand and then relax proof requirements on the other, fear is soon becoming the sole basis to secure our political obligation to the State. History bears witness to how revolt soon follows.