1) A judicial pushback to a draconian legal regime

GS 2: FR’s and Judiciary

Context: In the given article the author talks about the freedom of speech and expression and judiciary’s efforts to protect it as it is part of basic structure of constitution.

What’ the matter?

• The judgment of the Delhi High Court granting bail to activists Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha — they have been in jail for over a year (without trial) for their alleged role in the 2020 Delhi riots — is significant for many reasons.
• It brings to a close many months of jail time for three people who are yet to be proven guilty of any crime, something that should be anathema to any civilised justice system.
• Judgment represents an important judicial pushback to the authoritarian legal regime under the Unlawful Activities (Prevention) Act (“UAPA”).

The root of the issue

• UAPA is perhaps one of the most abused laws in India today.
• The root of the problem lies in Section 43(D)(5) of this Act, which prevents the release of any accused person on bail if, on a perusal of the case diary, or the report made under Section 173 of the Code Of Criminal Procedure, the court is of the opinion that “there are reasonable grounds for believing that the accusation against such person is prima facie true”.
• It is important to break this down.
• India follows the adversarial system of criminal justice,adversarial system of justice is the testing of evidence through cross-examination.
• Production of evidence, and cross-examination, involves witnesses, recoveries of incriminating objects, tests of handwriting or voice samples, and many other elements. It constitutes the bulk of a criminal trial.
• India, with our overburdened courts and creaking justice system, criminal trials take years, trials can take many years — even a decade or more.

Importance of bail

• If an individual is not able to secure bail from the courts, they will languish as under-trials in prison, for the duration of the case, no matter how many years it takes.
• Bail, thus, becomes the only safeguard and guarantee of the constitutional right to liberty.
• Section 43(D)(5) of the UAPA plays such a damaging role.
• Section 43(D)(5) short-circuits that core assumption. For the grant of bail, it only looks at the plausibility of one side’s evidence — that is, the Prosecution’s.
• It binds the court to look at only the case diary or the police report, which has not been challenged by cross-examination, and requires that bail be denied as long as the unchallenged prosecution case appears to be prima facie true.

One-sided

• Section 43(D)(5), thus, is that it forces the court to make an effective determination of guilt or innocence based on one side’s unchallenged story.
• In a democratic polity, which is committed to the rule of law, this is a deeply troubling state of affairs.
• Effect of Section 43(D)(5), as one can see, is that once the police elect to charge sheet an individual under the UAPA, it becomes extremely difficult for bail to be granted.

Finer points of the judgment

• The H.C. Bench correctly noted that even though Section 43(D)(5) departs from many basic principles of criminal justice, there are other fundamental principles that remain of cardinal significance.
• These include, for example, that the initial burden of demonstrating guilt must always lie upon the prosecution; and also, that criminal offences must be specific in their terms, and read narrowly, to avoid bringing the innocent within their net.
• The court’s judgment notes that as the UAPA is meant to deal with terrorist offences, its application must be limited to acts that can reasonably fall within a plausible understanding of “terrorism”.
• Thus,to attract the provisions of the UAPA — the judgment holds — the charge sheet must reveal factual, individualised, and particular allegations linking the accused to a terrorist act.
• There is no act, overt or covert, attributed to the activists that could constitute a terrorist offence. And, importantly, inferences or hypotheticals drawn by the police do not count at the stage of granting bail.
•  The judgment therefore holds that even prima facie, a case under the UAPA has not been made out, and therefore, there is no question of the application of Section 43(D)(5).
• The Delhi High Court’s judgment indicates a pathway forward in the quest for finding a balance between citizens’ civil rights and the imperatives of anti-terrorism legislation such as the UAPA.
• By scrutinising the police case on its own terms, and according a strict interpretation to draconian legislation such as the UAPA, courts can ensure that civil rights are not left entirely at the mercy of the state.