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What does it take to secure bail under UAPA? A look into how different courts deal with bail applications under UAPA and the rationale behind them

06, Oct 2020 | Sanchita Kadam

The Unlawful Activities (Prevention) Act (UAPA) is a national security legislation that gives unbridled powers to the government authorities to detain an individual basis vague and arbitrary grounds, for example “in the interest of national security”. The haphazard manner in which the charges under UAPA are being invoked has led to several persons being detained for months together before finally securing bail.

In the Bhima Koregaon cases, as many as 12 academics, lawyers and activists have been detained, many since June 2018 and, despite bail applications in the High Courts, no bail has been granted. Even before the Delhi 2020 Communal Violence related cases, dozens of Muslim youth –several or most of whom have, after 8-14 years been acquitted of charges—remained incarcerated without the remedy of bail.

Recently, the sole exception was Safoora Zargar, a student of Jamia Millia Islamia and also coordinator of the Jamia Coordination Committee (JCC) was able to secure bail; this happened solely because the state, in the garb of the Solicitor General, Tushar Mehta, “conceded” this case. Others have not been lucky. Two women student leaders and activists, Devangana Kalita and Natasha Narwal have been granted bail in cases where there are other criminal charges; however, as a UAPA case was also slapped on them, they remain in jail.

CJP.org.in looks at the procedures and outcome of applications for bail in UAPA cases, examining how the law that itself allows prolonged incarceration without evidence or the onset of trial, has been made even more draconian by rulings and interpretations by sections of the judiciary. Is the mere ‘terror label’ by the state enough to prevent the normal application of due process and access to justice?

Bail Denied

On September 3, 2020 Delhi’s Additional Sessions Judge Amitabh Rawat extended JNU student Sharjeel Imam’s judicial custody till October 1, 2020 in the Delhi riots case. He was arrested on August 25, 2020 or allegedly being part of a premeditated conspiracy in connection to the riots during protests against the Citizenship Amendment Act. “Considering the nature of the investigation as also the case record, application is allowed, Accordingly, Sharjeel Imam is remanded to judicial custody till October 1,” the court said in its order.

On September 3, 2020 a Jamia Millia Islamia student’s bail was rejected by Delhi’s Additional Sessions Judge Amitabh Rawat citing that witness statements clearly point out the role of the accused, Asif lqbal Tanha as also other co-accused persons and various actions taken by them in pursuance of the conspiracy for doing “chakka jam” (road block) which led to the north east Delhi riots. Tanha was arrested on May 19, 2020 and has been in judicial custody since May 27, 2020.

The issue here is that a protest, blockade of a road (chakka jam) is now being interpreted as an “act of terror” first by the police and then accepted by the lower judiciary.

The order may be read here:

 

On August 31, 2020 Delhi’s Additional Sessions Judge Amitabh Rawat refused to grant bail to student activist Gulfisha Fatima who has been in custody since April for alleged involvement in north-east Delhi riots. Notably, Fatima was arrested under sections of IPC on April 11 and charges under UAPA were invoked later, on April 19, 2020. Fatima had sought statutory bail on the ground that the Special Cell of the Delhi Police, which was probing the matter, had not filed a chargesheet within the stipulated time period of 90 days and she had been in custody for 120 days and more. She was denied bail as the court found the plea to be without merit.

The order may be read here:

 

Draconian Bail Provisions: The provision for statutory bail becomes an obsolete ground for seeking bail when charged under UAPA since section 43D of the Act allows extension of time for filing chargesheet on the application of Public Prosecutor, upto 180 days, as opposed to the 90 days period stipulated under the Criminal Procedure Code. This provision has been largely exploited in cases where persons are charged under UAPA and statutory bail is denied on this ground, thus rendering the person to be incarcerated in prison for up to 6 months, ay the minimum, without a chargesheet having been filed.

Around August 30, 2020 Delhi’s Additional Sessions Judge Amitabh Rawat denied bail to Devangana Kalita, a founding member of a women’s collective called Pinjra Tod, on the grounds that statements of witnesses reflected her role in planning the activities at the anti-CAA protest sites as part of conspiracy which led to the riots in north-east Delhi. The judge stated that there was a conspiracy to block the road which resulted in the riots.

Again, the issue here is that a protest, blockade of a road, (chakka jam) is now being interpreted as an “act of terror” first by the police and then accepted by the lower judiciary.

Evolution of UAPA

Preventive Detention law in India has had an interesting trajectory. While the Indian Constitution has, under Article 22, allowed preventive detention under certain circumstances, governments have used this to enact state and central legislations on different counts/

The Maintenance of Internal Security Act (MISA) was misused during the Emergency, after which it was repealed. National Security Act (NSA) in Uttar Pradesh is known for abuse by various state governments. Terrorist & Disruptive Activities (Prevention) Act was in force for a decade in the wake of the Khalistani terror threats between 1985-87. Operational in Punjab for the first two years, it was extended to the whole country thereafter. The Prevention of Terrorism Act was enacted in 2002 and repealed when the government changed in September 2004.

It is here however that the story gets interesting because the UPA I government, committed to a repeal of POTA in the wake of the abused unleashed by its draconian provisions, through amendments enacted in 2004, 2008 and 2011 introduced its most draconian provisions into an already existing body of criminal law, the Unlawful Activities Prevention Act, (UAPA), 1967. Special provisions, normally introduced for specific durations of time, have now been permanently incorporated, as a tool of abuse into Indian criminal law. Terrorism related provisions were inducted within the UAPA and hence the legacy of the law lives on, terrorising people.

2004, 2008 Amendments under UPA I

The UAPA 2004 amendment made substantial changes to the definition of ‘unlawful activity’, included the definition of ‘terrorist act’ and ‘terrorist organisation’ from the repealed POTA, and also introduced the concept of a ‘terrorist gang’. In fact, chapters IV, V and VI dealing with ‘punishment for terrorist activities’, ‘forfeiture of proceeds of terrorism’ and ‘terrorist organisations’ respectively, were heavily borrowed from the repealed POTA.

The schedule to the POTA legislation that made provisos for of ‘terrorist organisations’ was also incorporated into the UAPA verbatim.  Further amendments made after the terror attack on Mumbai, were moved by UPA. These included increasing legal provisions for a maximum period in police custody, incarceration without a charge sheet and restrictions on bail. The 2012 amendments to the UAPA further expanded the already vague definition of “terrorist act” to include offences that threaten the country’s economic security.

2019 Amendment under NDA II

Another important amendment was the 2019 amendment to UAPA which enabled the government to declare individuals as terrorists, quite arbitrarily. The Act, basically, punishes commission, funding and support of unlawful activities and terrorist acts. Even a vague act of questioning the territorial integrity of India is an offence under the Act. Clearly, it is up to the detaining authorities and the courts (when it finally reaches doors of justice) to define this offence. The other vague offence is causing disaffection against India; this is also likely to meet the same fate as the previous offence. Mere suspicion of the investigating authority is adequate to designate a person as a terrorist, without having to give substantive reason before doing so.

The Act does not follow principles of natural justice, as in, it does not give the individual an opportunity to be heard before designating him/her as a terrorist. Further, section 43E of UAPA puts the onus on the accused to prove himself innocent which is contrary to the basic principle of criminal law which is “a person is innocent until proven guilty”. The investigating authorities also have the power to search, seize and arrest the accused based on mere suspicion.

2018 and UAPA Abuses

People became familiar with UAPA when in 2018, several human rights advocates and activists were arrested for allegedly instigating the violence in Bhima Koregaon in January 2018, and being involved in Maoist plots. The accused who are still in custody include advocates Sudha Bharadwaj and Surendra Gadling, lawyer and author Arun Ferreira, revolutionary poet Varavara Rao, as well as activists Gautam Navlakha and Vernon Gonsalves. Their repeated attempts to individually seek bail on various grounds, including the threat of contacting Covid-19, have been dismissed by the courts.

The Bombay High Court, in October 2019 had denied bails to Sudha Bharadwaj, Arun Ferreira and Vernon Gonsalves in 3 separate order but with the common conclusion that the three activists were part of the larger conspiracy as they were abetting commission of such offences. The Court also concluded that the applicant was a member of the banned organisation and denied bail to the three activists based on the bar imposed by Section 43D (5) of the UAPA.

The orders may be read here.

When Bail has been granted in UAPA cases

On September 9, 2020 a special NIA court in Kochi, granted bail to two students, Allan Shuaib (20) and Thwaha Fasal (24) who were charged under UAPA for allegedly being members of Communist Party of India (Maoist) [CPI(M)] which has been listed as a terrorist organisation under UAPA. The court observed that merely possessing literature relating to Maoism cannot make prima facie case. The court held that there is possibility of reformation and hence the court has to be lenient while granting bail with a clear message that the chance given for reformation shall not be mistaken as an opportunity to fasten their bond with a banned terrorist organisation and to be part of it. They had been in custody since November 2019 and were set free after about 10 months.

The order may be read here:

 

In June, 2020, JNU student, Safoora Zargar was granted bail at Delhi High Court in June as Delhi Police agreed to release her “humanitarian grounds”. At the last hearing, before she was granted such bail, Delhi police had refused to make an exception for her pregnancy and presented strong grounds for keeping her in custody and then in a sudden change of heart, at the next hearing, said it was ready to release her on humanitarian grounds provided she does not indulge in activities she’s being investigated for and she remains in Delhi. Zargar was in detention since April, 2020 and within 2 months, the issue of her release rattled even international media, considering she was pregnant and seemingly a political prisoner. She was set free within 2 months of being detained under an anti-terror law while being 5 months pregnant, all for seemingly blocking a road!

The order may be read here:

 

On August 29, 2020, Zahoor Ahmed, a pharmacist employed with the government, who was arrested on January 6, 2020 was granted bail by Third Additional Sessions Judge, Jammu, Sunit Gupta saying there was no evidence of his involvement in any offence under UAPA and that he was only “performing his professional duty” even if he was intending to deliver medicines even to a terrorist. Calling the charges “a successful attempt to falsely implicate” him, the court said Ahmed should be released “forthwith” from Jammu Central Jail on interim bail. The prosecution had alleged that Ahmed was linked with Hizbul Mujahideen, was providing information about security forces to militants, and was involved in arranging funds for militant commander Mohammad Amin. Ahmed remained incarcerated for more than 8 months with the court observing that he was being falsely implicated.

This order is not yet available in the public domain.

On July 31, 2020 Kapurthala Court in Punjab granted conditional bail to an NRI, Joginder Singh Gujjar who was arrested on July 2, 2020 under charges of UAPA for alleged links with an organisation called Sikhs For Justice which is an unlawful organisation under the Act. Additional District and Session judge Rajwinder Kaur granted bail to Gujjar after investigative officer in the case, DSP Jatinder Singh, informed the court that they do not have any evidence to prove that he is a member of the organisation. Gujjar had to remain in custody for 29 days till the police to come to a conclusion that they do not have evidence against him. It is safe to assume thus, that presumptively he was innocent and an innocent man was incarcerated for about a month at the behest of a draconian anti-terror law that has given a free-hand to the executive, putting lives and liberty of the public in perpetual danger.

The order may be read here:

 

Pattern of bails

What may be deduced from the above instances of grant and denial of bails under UAPA is that there is a certain pattern at least in the Delhi riots cases. The charges under UAPA are invoked a few days after the person is arrested, the bail plea is heard by the same judge at the Sessions court level and the same reasoning is given each time; that there was a “conspiracy to block the road”. Safoora Zargar, Devangana Kalita, Asif lqbal Tanha have all been denied bail under UAPA for the same reason – for blocking a road that eventually led to the riots. Of the 22 persons charged under UAPA, 19 are Muslims.

Another pattern is that the bails, when granted are on basis of a reasoned and sound order, with basis on rule of law and precedents set out by the Supreme Court. Dr Kafeel Khan, who was detained under the National Security Act was also released on basis of a detailed order giving reason for each and every ground for his release and for deeming his detention to be illegal. So, most commonly, an order granting bail under UAPA is found to be more reasoned and based on rule of law than orders of denial of bail which seem mechanical in approach and rely solely on prosecution’s version and witness statements in the case.

The saga continues

This saga of grant and denial of bail under UAPA is expected to continue as the police, especially the Delhi Police, is empowered by political bosses to indulge in a witch hunt. They have continued to identify more and more people for their involvement in the Delhi riots. JNU student leader, Umar Khalid, who has been a target of this Regime since 2016 –the targeted violence in JNU –and has also spoken up against the government and Citizenship Amendment Act was charged under UAPA and was arrested on September 13, 2020. Delhi’s Additional Sessions Judge Amitabh Rawat has remanded Khalid to judicial custody until October 22, 2020.

The Ministry of Home Affairs (MHA) was forced to reveal data related to UAPA cases as questions were put forth during the recent Monsoon session of Parliament. The MHA presented data from National Crime Records Bureau (NCRB) 2018 report “Crimes in India”. As per NCRB’s 2018 report, between 2016-18 a total of 3,974 persons were arrested under UAPA and 3,005 cases were registered. Out of these, only 821 chargesheets were filed in three years, i.e. 2016-18.

Related:

Ready reckoner to the Unlawful Activities (Prevention) Act, 1967

When the Law Curbs Democratic Freedoms: India’s Anti-Terror Law, the UAPA

Over 3,000 UAPA cases and only 821 chargesheets!

Why the Bombay High Court rejected the bail pleas of Activists: Bhima Koregaon

 

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