It is now out in the open. There seems to be quite a lot of dissatisfaction in the higher judiciary about the burden placed on their shoulders by the rising number of UAPA cases. The phrasing of the act is so wide and sweeping, that it gives a government powers to practically put under arrest and detain anyone it finds inconvenient or an obstacle to its political aims. And the mere production of a chargesheet before the court seems to provide prima facie basis for denial of bail. Even the necessity of filing chargesheet within ninety days is waived on the ground that the crime is grave beyond imagination, and far too complex for preliminary investigation to be completed in ninety days. Further, not to speak of a real crime against the State, even a supposed intention is enough to commit the accused in the clutches of police or security agencies.
This allows malicious prosecution, sometimes years even to produce a chargesheet. And then at last, the court has to examine a complicated and confusing morass of details spun out to a never-ending chain of guesses and hunches resting on faint footprints on shifting sands. A clear decision on the status of the evidence becomes impossible. And no wonder, rather than declaring the state biased in a matter of serious threat to national security, the court sometimes is tempted to defer the onerous task of arriving at a definite conclusion by dismissing the argument for defence as inconclusive. And hapless detainees have to spend years waiting for the long-winded trial to come to an end. And that too not because the crime itself is planned with hideous subtlety and meticulous design, but because in fact there is too little solid material to grasp firmly.
Of late such cases have proliferated to such an extent that many members of the higher judiciary must have been worried. On the one hand, there is the citizen’s priceless birthright of freedom, and on the other, the perceived grave threat to the state. Add to it the growing chorus of serious journalists, responsible lawyers, reputed retired bureaucrats and senior police officers, eminent jurists and academics who protest bitterly against rampant abuse of law under the garb of protecting the state.
The next serious concern expressed by honourable judges of Delhi High Court is the gross attempt to muzzle criticism and protest against policies and decisions of the incumbent government. The attempt to gag dissent and protest has led to outright suppression of liberty of life and movement. This too appears to many citizens of weight and stature as patent violation of constitutional rights. It would thus follow, that these two denials of freedom have threatened the very basis of democracy as a viable political system in India.
It is also a fact that several such cases have been trashed and the accused given bail by judges with probity and character even in lower courts. The Supreme Court has been approached by many for a binding verdict on the constitutionality of the law both in its original and more stringent versions, and unfortunately the matter remains pending.
The situation has undoubtedly become too unwieldy for expeditious and convincing delivery of justice.
The honourable judges of the Delhi High Court simply took the bull by the horns and made a courageous and strenuous attempt to bring some clarity on these issues. They have strenuously examined the charges and found them violative of the principles of justice. Teesta Setalvad has given a succinct summary of their argument for the benefit of readers like us. The honourable judges have concluded that given the gravity of the allegation and the punishment it may invite it did not attract the exactitude and rigour of proper application of mind from the police. The laxity and sweeping scope of the charges and the vagueness of the charge of terrorism and the slipperiness of the evidence produced are not only improper on behalf of a state agency but disturbing portents for our democracy.
The honourable judges were evidently compelled by a quite reasonable apprehension of a dangerous abuse of power by state agencies, just like many other eminent citizens of the country. For after all, they too are citizens of a democracy and not an authoritarian state ruled by beastly regulations.
It is therefore something of a puzzle that while not reversing the bail order the bench of the Supreme Court that heard the appeal of the Delhi Police against the High Court order observed that it could have much wider repercussions undermining a law passed by parliament and covering a multitude of dangerous crimes against the state. That, at least, is what I make of these observations. Many such cases are under way and the HC order according to their lordships could at one stroke
torpedo them all.That appears to have been the concern raised by the SG.
One would like to differ in all humility. If the danger to national security is undoubtedly a matter of grave concern, so is the danger to democracy from overweening rulers who twist and bend the laws any way they choose. Or the laws are made so wide and baggy that they swallow everything rulers dislike, leaving citizens robbed of their fundamental freedom to express dissent and protest strongly against any government policy.
The UAPA has been used, for instance, to incarcerate certain academics, lawyers and social activists who can scarcely be conceived of as engaging in monstrous conspiracies against the state. The chargesheets that are taken as prima facie basis of such vile and vicious plots basically rely on incriminating documents ferreted out by diligent police from a single laptop, documents replete with details that look bizarre and far-fetched.
A reputed American forensic lab armed with state-of-the-art technical expertise, Arsenal Consultancy,
has categorically declared these documents fake and insinuated through a malware for a period of twenty-two months before a raid into the house of one of these accused. During an ongoing trial the NIA, which is in charge of the case now, flatly refused to accept that evidence as the Pune based National Forensic Laboratory had vouched that the documents were genuine and no malware was detected.
And there the matter rests till now.
While the SC is expected to look into the debate and decide with acumen and wisdom, the NIA’s stand can scarcely be considered the above question. Given that Arsenal is a reputed firm with firm credentials, there is no scope for suspecting it of mala fide intentions in coming to a conclusion in its appraisal. NIA has neither produced any proof of lack of professional integrity nor adduced any serious reason for rejecting its findings except a subjective bias. At the very least the situation calls for an impartial assessment by a third expert group of equal reputation. Yet progress of the trial is stalled and those accused undergo further ordeals. There lurks in many decent observers’ minds a gnawing suspicion that it may in fact be the state which is engaged in an ominous conspiracy against democracy.
One is once again reminded of the exceptional Hollywood film, Judgment at Nuremberg, with stellar roles by Spencer Tracy, Burt Lancaster, Maximilien Schell and Judy Garland directed by the illustrious director Stanley Kramer. It films with vivid drama the trial of the most powerful German judges, some with international standing, who did not or would not use their judgment to countermand the vicious and inhuman orders infringing elementary principles of justice given by the Nazi regime and carried out by robot-like officers in Germany. True, we have not yet come to this pass. But any hesitation or lack of alertness on the part of our judiciary at this point might eventually help unleash similar terrors and cruelties on ordinary citizens of India.
*The author is a highly respected Assamese intellectual, a literary critic and social-scientist from Assam. Views expressed are the author’s own.
Other pieces by Dr. Hiren Gohain: