Like countless others, I am relieved that Asif (Iqbal Sinha), Devangana (Kalita) and Natasha (Narwal) have been granted bail by the Delhi High Court. It was long overdue. Their continued incarceration had caused great frustration, not only to the three of them, but also to everyone who believes in the Rule of Law. Compounding the misery manifold was the slow pace and insensitivity of the judiciary.
Even while I am breathing for now, I know that in the bored but vicious political state we are living in, where normalcy is an exaggerated myth and the truth nebulous, the order will be seen as an example of the judiciary overstepping its limits and no stone will be left unturned to reverse it. This order will hurt a dispensation which believes that the surest way of asserting itself is to quell dissent no matter how innocuous, insignificant and remote. The macho image must prevail at all costs. We seem to have to have graduated from a kafkaesque world to a comic strip from Tom and Jerry, without its mirth and laughter. And the playground is not a comfortable home. The arena is the judiciary and the rules of the game are onerous legalese and a web of lies.
After reading the judgment, I am glad that the Court has finally courageously caught the bull by the horns while confronting the absurd provision of Section 43(D)5 of the Unlawful Activities (Prevention) Act [UAPA]. Hitherto, all courts, including the Supreme Court had skirted the issue of going into the merits of the case and offered excuses for granting bail on grounds like age, length of incarceration and possibility of a prolonged trial. This order offers no such excuses and instead examines whether the petitioners could be termed as terrorists for their varied forms of protest. While granting bail, the Court is not only completely unapologetic, but also judicially sound and upright. And this is what I find heartening.
I may point out here that things have come to such a pass only because similar provisions of TADA, POTA and NDPS were not struck down when brought before the Supreme Court, for totally unjustifiable reasons. They should have been struck down on the ground that they were an encroachment upon the independence of the judiciary. Such provisions show a lack of trust in the judiciary and do not fit in with our adversarial system of trial, to which I will come later.
In order to appreciate the finesse of the judgment in the context of what I have stated above, I will briefly state the facts of the case.
In 2019, the Citizenship Amendment Act (CAA) was passed. Many believed it was going to destroy the basic secular structure of our nation and it led to many active and varied kinds pf protests. The three youngsters, and many more believing in what Mahatma Gandhi said in Johannesburg - ”refuse to obey the terrible laws and accept any punishment without violence...Never give up until we are treated fairly and equally by the law” - did exactly that but were ironically dubbed as anti-nationals and terrorists.
Even a cursory glance at the nature of acts committed by these students would reveal that stringent provisions of UAPA have been slapped on them, stretching the provisions to unimaginable limits. The role assigned to Asif was that he as a conspirator had motivated others to cause stoppage of vehicles and blockade of roads. He participated in a meeting where others told him that they were ready for riots if anything happens and then the riots happened. He allegedly mobilized mobs of a particular community and instigated them to commit violence.
The next accused Devangana is said to have been a member of an organization called Pinjra Tod and had conspired to incite violence, resorted to chakka jam, was present at various protest sites, and was involved in actual riots in Delhi. The case against Natasha is also similar.
Apart from other general offences under the Indian Penal Code (IPC), the problematic Sections 13/16/17/18 UAPA were added evidently for oblique purposes. I say problematic because the proviso to Section 43(D)5 lays down that a court shall not allow bail if “there are reasonable grounds for believing that the accusation against such person is prima facie true,” thus leading to the belief that courts have no power to grant bail to a person accused of Sections 15 to 23.
To understand a little more, Section 13 mainly concerns itself with disrupting sovereignty, whereas Section 15 makes punishable any terrorist act and opens with the words “any act with intent to threaten or likely to threaten the unity, integrity, sovereignty of India, or with intent to strike terror or likely to strike terror in the people..." by using lethal weapons, bombs etc.
The High Court, in all fairness, firstly examined whether offences punishable u/s 15 to 18 were made out against the accused persons and the nature of restriction on bail u/s 43(D)5. It examined the facts of the case, delineated the allegations against each of them and held that the ingredients of the offences were not made out. It sealed what we already knew vide a judicial order that protests or aggravated protests and imagined consequences of such acts do not affect the unity of the nation.
I am even more gratified that the Court did not leave it at that. It also painstakingly examined all the important decisions of the Supreme Court and other courts as to what constituted an “unlawful assembly”, the extent of permissible freedom of protest, closely examined the purport of the Act, contrasted it with other special laws such as TADA, (now repealed), POTA, MCOCA, underlined the difference of approach required while dealing with cases falling under each of the said Acts and applied the ratio on the facts of the case.
I am especially grateful to the Court for having clarified the import and perceived restriction on courts vide section 43(D)5. The conclusion that the court is not to presume the guilt of the accused, and that the "burden to demonstrate the prima facie veracity, the allegation must fall upon the prosecution" is absolutely correct. It understood that the basic difference between the provisions of TADA and POTA were the words “not guilty” (an absurdity), having been used in those statutes while imposing a restriction on bail. It has explained that prima facie guilt had to be excluded in TADA and POTA, but when UAPA uses the words ”prima facie true”, it meant that the court must accept guilt of the accused of the accused persons, even if on broad probabilities. This could happen only if the prosecution had discharged its initial duty of establishing a prima facie case.
Why this reasoning is sound can be tested by the following simple explanation. At the stage when the court is considering bail, the only material available with the court is that which has been brought or collected by the prosecution. So evidently, the court can make up its mind on that material alone which needless to say should be sufficient for it to arrive at an opinion that prima facie the case is true.
According to me, this reasoning is totally in line with one of our basic principles of criminal jurisprudence. As per the Evidence Act, burden of proof lies upon the party which sets the law in motion. Even in cases where there is a presumptive clause, unless the prosecution has discharged its initial duty of proving the ingredients of the offence, the onus does not shift upon the accused. Hence, it is the primary duty of the prosecution to not only mention sections of such one-sided laws, but also to satisfy the court that in the facts, the ingredients of the offences are satisfied. Once that primary duty is discharged by the prosecution, the focus shifts on the court, because it is the court which is the legal custodian of the person concerned and then it becomes his primary duty to satisfy itself that indeed a case is made out. Not for the asking of the prosecution, but only on discharge of its duty.
I must here share another anxiety of mine which has been troubling me and that is whether such strictures fit in with our adversarial system. Most of us know that the common law countries, including India, have adopted the adversarial system whereas the civil law countries have the inquisitorial system. In an inquisitorial system, the judge acts as a fact finder and carries on some sort of inquiry to find out the truth. He is thus an active player and does not merely rely on what is placed before him.
On the contrary in an adversarial system, a judge acts as a referee between two parties. Each party is expected to present their side after which the court decides on the evidence that is adduced by the parties. Civil cases are decided on preponderance of broad probabilities whereas criminal cases on proof beyond reasonable doubt. It is nowhere the duty of the court to be a fact finder. Even assuming there are certain situations when the court does make an inquiry in cases instituted on a private complaint, it is limited to examining witnesses to know the version of the party. It is not to be confused with making an endeavour to find out the truth.
During criminal trial under Section 311 of the Code of Criminal Procedure (CrPC), a court can call for any witness and evidence in order to arrive at a just decision of the case. Under Section 165 of the Evidence Act, he can ask questions of any witness in order to discover or obtain proper proof of relevant facts required in trial. Not only are these provisions applicable only during trial, none of these provisions transform a judge from a passive referee to a seeker of truth.
In such circumstances, it is not only unfair but also preposterous to expect that a passive court in an adversarial system would metamorphose into a seeker of truth, and hold at the stage of bail that the case is prima facie true or false or that the accused is guilty/not guilty even before the parties have had a chance to place their version. The consequences can only be prejudicial to one of the parties. Maybe Charles Dickens was right when he said through Mr Bumble that ”law is an ass”, and maybe I am a fool since I ride it.
The author is a Senior Advocate practicing at the Supreme Court and was a former judge of the Patna High Court.
Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.