Human Rights Activist K. Balagopal once said to in a conversation to jurist, K.G Kannabiran, “If the state, or the God wants to kill a person, no one can protect such a person” . This was when the former was urging the latter not risk his life by travelling extensively in the erstwhile Andhra Pradesh’s conflict ridden distructs, this particular trip to attend a meeting in Rajahmundry. This comment by Balagopal exposes the dual nature of the state. On one hand, the state is a paternal force that (must, is expected to) exert its influence to take millions out of poverty, protect the interests of minorities and makes ensure there is peace and security to the people it governs. On the other hand, the state also turns out to be the biggest oppressor, via laws, the programmes it propagates and the measures it undertakes to maintain law and order.
The Unlawful Activities Prevention Act, 1967(UAPA) is an example of the second side of the state-the oppressor side. UAPA is a law that is primarily used to deal with terrorist activity. The long title of the act and it’s aim and objectives state that the act is meant to “provide for the more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities, and for matters connected therewith.” The UAPA was amended, again recently in 2019 giving the government power to declare an individual as a terrorist. Formerly, the power under this law was restricted to the state only declaring only an organisation as a ‘terrorist organisation’.
Recently, two orders of the High Courts-Bombay HC and Delhi HC- passed orders in cases under UAPA, denied the bail applications of the accused. The Bombay HC’s order in Jyoti Jagtap vs. State of Maharashtra (Jyoti Jagtap’s
UAPA: Provisions and Jurisprudence.
Section 43 D (5) of the UAPA deals with the condition of bail. It states as follows:
“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”
The first part of the section mandates that the public prosecutor must be heard before an order is passed. The second part, gathered from the proviso, is that the accused’s bail cannot be granted if the court forms an opinion that the accusation against the accused is ‘prima-facie’ true. The basis on which the court should form its opinion is the material-case diary or the report made under Section 173 of the Criminal Procedure Code. Section 173 of the CrPC talks about the report of the police officer after completion of investigation.
It is clear from a plain reading of this section that the opinion has to be given on the basis of a police report which seeks to accuse and convict the accused. When the situation first arose to interpret this section, the Supreme Court gave its reading of this Section in NIA vs. Zahoor Ahmad Shah Watali(Watali). The court stated – “By its very nature, the expression “prima facie true” would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of accused “not guilty” of such offence as required under the other special enactments.”
The SC however gave another interpretation of Section 43 D(5) in the case of Union of India vs. KA Najeeb– stating that the prima facie conditions is one of many conditions like gravity of offence, possibility of tampering the evidence or influencing the witness etc. This meant that the courts could grant bail depending on the circumstances of the case. However, despite this alternate interpretation, the first reasoning in Watali seems to guide many of the different bail orders of UAPA accused persons.
The Jyoti Jagtap’s order.
Facts: The Accused- Jyoti Jagtap, according to the prosecution, had organised an event called the Elgar Parishad in Pune after which, allegedly, violent incidents took place in the city. Connection has been drawn to the accused’s participation and she allegedly inciting violence by being a member of Kabir Kala Manch (KKM), allegedly a frontal organisation of the banned Communist Party of India (Maoist)-CPI(M). The prosecution argued that the actions of the accused are connected to a conspiracy to collapse the democratically elected government.
The court followed the Watali judgement’s reasoning and declared that it is of opinion that the accusations are prima facie true. The court has taken two meetings of the accused with a member of the CPI(M) in the forest and alleged weapon training in the forest in the year 2012 to declare the accused as an active member of the CPI(M). The court neither mentions or talks about any such recent meetings or a continuous pattern of meetings in the forest, for the active membership to appear as strong a contention as the prosecution presented in the case. The court also attributed greater role in the violence to the accusedfor the reason that accused looked after the accounts of Elgar Parishad. The court goes on to state that daily remarks used by millions of people in a sarcastic tone such as ‘ache din’ are provocative in this context and thus the performance in Elgar Parishad event by the accused who used such words is part of a larger conspiracy by KKM and CPI(M).
The court said – “There are a number of innuendos in the text / words / performance of KKM which are pointed directly against the democratically elected government, for seeking to overthrow the government, ridicule the government, excerpts of which need to be mentioned here in order to highlight the role of Appellant. These pertain to songs / phrases / questions asked and answers given and performance ridiculing phrases like; “Acche din”, “Gomutra”, “Shakahar”, “the Prime-Minister referred to as an “infant”, “the P.M.’s travelogy”, “RSS dress/outfit”, “Policies like Demonetization”, “Sanatan Dharma”, “Ram Mandir”, “that Shivaji Maharaj being vehemently opposed to Muslims”, “that Tipu Sultan being against Hindus and he committed murders of Hindus and brought down temples”, “that Constitution is not the highest document, but according to Golwalkar Guruji it is Manusmruti”, “Behaviour and atrocities of Peshwas towards Dalits”, “Treatment and nomenclature of Dalit women by Peshwas”, “Atrocities on Dalits in today’s India”. KKM admittedly performed and incited hatred and passion by performing on the above agenda in the Elgar Parishad event. There is thus definitely a larger conspiracy within the Elgar Parishad conspiracy by KKM and CPI(M).
The court also referred to a coordinate bench’s judgement in Hany Babu vs. NIA which “established the danger of CPI (Maoist) and its forceful methods and in consideration of total material placed before it, it said that the accused’s role is to be seen in the context of a larger conspiracy presented by NIA.
The judgement of the court looks like the court has employed different logic, albeit strange ones, to arrive at this particular conclusion.
Firstly, the court does not consider whether the accused has been a member —an active one — with minimal judicial examination. Despite the word ‘prima facie’ meaning that no strenuous application of judicial reasoning is needed, to understand whether two meetings with a Maoist Party person or a stay in the forest for training half a decade ago implies active participation now or not, no such strenuous application of judicial reasoning is necessary.
In the case of Jyoti Chorge vs. State of Maharashtra, the Bombay HC granted bail to members of Kabir Kala Manch, stating that possession of literature of the banned CPI(M) does not make them members of the organisation and it shows mere association of some kind. And given the UAPA’s stringent punishment for being a member of a banned organisation- the court stated- the question of membership needs to be carefully contemplated. The court relied on the SC judgement in the case of Arup Bhuyan vs. State of Assam to distinguish between the concepts of active and passive membership. In Arup Bhuyan, the court stated that despite being a member in the banned organisation, they have to commit the act of violence or incites people to do violence for a person to be considered as an active member. The Arup Bhuyan case however dealt with Terrorist and Disruptive Activities (Prevention) Act, 1987. In Jyoti Jagtap’s case, nothing has been considered by the court to establish that the accused was an active member of the banned organisation CPI (Maoist) except for a few meetings that took place half a decade before the Elgar Parishad incident.
Secondly, the court considered that the acts of the accused during the event went on to incite the violence that occurred after the Elgar Parishad incident. To establish this, the court took the route of attributing provocative character to critical remarks against the government and the ruling party. One might argue that the effect of these remarks was to engender violence and therefore the remarks had to be attributed this provocative character. However, whether the remarks indeed were causes for the violence that erupted is a matter that will eventually and probably determined at the end of the trial. Given that the court was looking at prima facie material, the remarks prima facie are such as those used by everyone that has been criticising the present Prime Minister or the ruling government. If that had been done, the remarks would not have been attributed the provocative character that they have been.
Thus, the order denying bail in Jyoti Jagtap’s case lacks two crucial links. One is in establishing that she is an active member of the CPI (Maoist) and whether her actions during the event had the intrinsic capability to incite violence.
Umar Khalid’s order
Facts: A sessions court denied bail to Umar Khalid in cases arising out of Delhi Riots conspiracy under UAPA, in March 2022. On appeal, the Delhi HC upheld the sessions court’s order on similar lines of argument used in the Jyoti Jagtap’s case.
In this case, the court employed a series of tools to draw connections between the accused and violent incidents. For example, being a member of Whatsapp groups has been understood here as having the intent to organise and thereafter inciting violent incidents. The Accused’s act of giving a speech in Amaravati referring to, and criticising former US president, Donald Trump has been interpreted to somehow show that he displayed a mindset to cause violence in Delhi. No contents of the speech have been referred to. And a number of phone calls between the accused after the riots broke out were also considered to be incriminating the accused. Any calamity or disorder will be followed by people calling each other and communicating with each other to express solidarity or to reaffirm that they are safe to one another. This was considered by the court to arrive at its decision that the accused was a part of the conspiracy, prima facie.
The judgement also states that “inquilabi salam” (revolutionary greetings) and “krantikari istiqbal” (revolutionary welcome), words used by Umar Khalid are provocative. Any leftist party meeting or many progressive community meetings- even in southern India- start with these Urdu greetings. The court interprets these words as calls to a violent revolution since in the court’s understanding- revolution is always violent which is why the word bloodless is inserted before any use of the word, revolution , to signify the peaceful nature of bloodless revolution. This reasoning, on the spectrum of peculiarity, sits on the brighter side. The court again reads too much into the material rather than prima facie looking at it, to establish a link between the accused and the alleged acts of violence they have committed. Like in Jyoti Jagtap’s order, this order too, lacks the links to establish that the person accused has committed the crime and instead of finding the links, the court traces back the events to the accused.
Conclusion
Courts, despite stringent legislation like UAPA, are the guardians of the fundamental rights of people. When there is an already a strong state that does not shy away from persecution of human rights defenders be they academics, activists, writers and journalists, given its dividends, courts will have to be extra cautious in expanding the jurisprudence that curtails fundamental rights.
Both these orders by the respective High Courts highlight how there is a scope for liberal interpretation of the bail provisions under UAPA Section 43 D(5),within the constraints of Watalijudgement, and despite such scope how the interpretations continue to come out in favour of the executive.
(The author is a legal researcher currently giving his post graduate examinations)
The judgement refers to the banned Communist Party of India (Maoist) as CPI (M). Due to the confusion this may cause we are using it in full form.
Related:
Umar Khalid bail plea: Prosecution concludes arguments before Delhi HC
Delhi Violence: Prosecution opposes Umar Khalid’s bail plea claiming protests were planned in detail
Membership of Whatsapp groups can’t make one criminally liable, argues Dr. Umar Khalid