When speeches are given a criminal colour & ‘conspiracy’ charges used to incarcerate: Gautam Bhatia on Umar Khalid, Jyoti Jagtap bail orders

Analysing a few recent judgements where constitutional courts have denied bail interpreting sections of the controversial UAPA, the PUCL brought together legal practioners on this crucial question

Umar Khalid

The sanctity of procedure needs to be brought back to legal processes to ensure there is no abuse, opined legal scholar and advocate Gautam Bhatia speaking at the online discussion organised by the People’s Union for Civil Liberties (PUCL). At the event held on October 25, three recent judgements pertaining to civil liberties were analysed and discussed. The judgements included Bombay High Court’s denial of bail to Jyoti Jagtap (Jyoti Jagtap v. National Investigating Agency and Anr), Supreme Court’s stay on the acquittal of Dr G.N. Saibaba (State of Maharashtra v. Mahesh Kariman Tirki And Or.) and Delhi High Court’s denial of bail to Umar Khalid (Umar Khalid v. State of NCT of Delhi).

The discussion began with Gautam Bhatia who highlighted how the Court took innocuous statements to have a “sinister meaning” simply because a particular case pertained to an alleged conspiracy. He stated that conspiracy was used to give speeches a criminal colour.

He stated that while it was often said that the Trial Courts and the High courts, when dealing with UAPA, had their hands tied owing to the text of the UAPA along with the directions issued in the judgement in NIA v. Zahoor Ahmad Shah Watali (2020), he believed that there was space for the courts to work around to grant bail. It may be recalled that the Supreme Court judgment in NIA v. Zahoor Ahmad Shah Watali had held that it is not permissible for courts to even engage in a detailed analysis of prosecution case while considering bail under UAPA.

Analysing the declining of bail in a spate of judgements of late, advocate Bhatia stated that substantive clauses of UAPA had to be given a narrow interpretation if abuse of the draconian provisions had to be prevented.. Here, he gave an example of the June 2020 Justice Bhambhani’s judgement in Asif Iqbal Tanha v State of NCT of Delhi. He added, that in Jyoti Jagtap’s case, it was clear that there was no actual specific allegation that she was involved in violence or that any speech she gave incited violence. he said.

“What comes out is that, over years she was seen in meetings in which CPI(Maoist) leaders. There exist gaps. These are filled by the Elgar Parishad slogans, ridiculing ‘Ache Din’, ridiculing prime minister- these were taken to be a part of a larger sinister conspiracy. Similarly, in Umar Khalid case, his membership to various WhatsApp groups is taken into account by the court. The gaps between his participation in WhatsApp groups and his participation in violence is filled by the that stipulation the HC makes. The court has picked up otherwise innocuous statements and held that because there this is a larger conspiracy, these statements have a sinister meaning. Conspiracy is used to give speeches a criminal colour. The foundation of either statements that threaten national security or a criminal conspiracy are non- existent. You use all these fragmented parts to buttress each other. Vague allegations are made particular through the use of inferences.”

Bhatia also stated that this revealed that courts had a choice in each bail order and it was up to the lawyers to push for a more pro-freedom interpretation. He also commented on the Dr Saibaba case and stated that it had become so that finding on procedure had somehow less sanctity than a finding on merit. This, as per Adv Bhatia, has led to devaluation of procedure.

“You want an independent authority to review the material. If that hasn’t happened, that should go to the root. The question is how do we, as legal writers, lawyers, citizens somehow bring back the sanctity of procedure”, he said.


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