Let the spirit of judiciary prevail

RELEASING DEVANGANA ET AL

Udayan Hazarika

(The writer can be reached at udayanhazarika@hotmail.com)

The superiority of the Judiciary over the executive has once again came to the limelight while pronouncing the judgement on the bail petitions of the three accused in the Delhi riot conspiracy case. This time the Judiciary strongly established its role of a vigilant sentinel in keeping democratic ideals at their height while these were degrading at the behest of the executive in the country. The judgement of the Court in granting bail to the three student activists is not just another bail order but a document which is carefully researched out with devoted effort laying down facts as to what constitutes terrorist activities and how it is different from unlawful activities, etc. The order attracted the attention of various quarters including the higher judiciary which has also reportedly criticized the order as being an example of overstepping the limit laid down by the Unlawful Activities (Prevention) Act 1967 (UAP Act). A desperate Delhi Police were not appeared to be ready to receive such a pronouncement from the High Court and this is visible from their exceptional prompt action in filing appeals first before the Delhi High Court and then before the Apex Court evidently to stall the release of the activists as ordered on the 15th June. The first appeal was responded with another order to carry out the first order while the appeal petition filed before the Supreme Court in less than 24 hours was accepted for hearing in July. The effort to stall the release of the detainee hence could not succeed. On the day of hearing the appeal petition filed before the apex court, the Solicitor General himself was present in the Court urging the Court to stay the High Court verdict as it would "virtually record acquittal for these accused." Although the press has reported saying that the Supreme Court is annoyed at the order of the High Court, the actual order however was precise and it did not express anything derogatory on the order.

The trio have against them more or less similar charges, but the serious among these are i) the charge of being part of a broader conspiracy against the State with an intent to destabilise the government, ii) the charge of acting as the co-conspirators (a) in organizing and instigating women to protest, (b) for blocking the traffic and engaging in shouting slogans (c) instigating the public against the Government by giving inflammatory speeches, etc. There are also allegations from the State that as part of executing the above-mentioned conspiracy, the appellants were also involved in the actual riots that occurred in North-East Delhi. The government affidavit is full of such allegations against the trio. The major concern is the imposition of an allegation involving them in what is called the 'larger conspiracy of inciting violence and rioting, which led to the events that occurred in the North-East part of Delhi between 23.03.2020 and 26.02.2020.

Apart from the above common allegations, there are also allegations against the three accused which vary in numbers and nature of acts. As a result, separate FIRs against each were lodged leading to three different police cases. The common problem for all three in getting bail was the charge concerning the conspiracy against the government. This charge is brought under Section 15 of the UAP Act designating it as an act of a terrorist. After the amendment of UAPA in 2004 incorporating therein the provision to deal with the terrorist activities, the number of persons detained under this provision has been rising significantly between 2015 and 2019 (72% rise) while more than 90 per cent cases are awaiting finalization (MoH data before Lok Sabha). The Solicitor General Sri Tusar Mehta while appearing before the Supreme Court on Friday last himself had disclosed that after this order of High Court, more and more detainees will come out to take advantage of this judgement citing it as precedence. The Solicitor general's concern does not appear to conform to the judicial maxim that "law will take its course."

The procedure of granting bail to an offender under the UAP Act is laid down in subsection (5) of section 43 of the Act. The first condition provided is that the public prosecutor should be given an opportunity of being heard on the application for such release. The proviso to this section is most crucial which reads "such accused person shall not be released on bail or his bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code thinks that there are reasonable grounds for believing that the accusation against such person is prima facie true." Elaborating this provision of bail in the UAP Act, the Apex Court in its judgement in National Investigation Agency vs. Zahoor Ahmad Shah Watali, [(2019) 5 SCC 1.] observed: "By the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise…The expression "prima facie true" would mean that the materials/ evidence collated by the investigating agency about the accusation against the accused concerned 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…" The para 24 of the verdict reads: - "A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding based on broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise."

The Delhi High Court while examining the petitions not only recorded its findings the Court had gone deep into the allegations and took the pain of recording what is a "terrorist act" how is it different from the other general unlawful acts. What is the right to protest –its scope and extent under the Constitution of India? Although a court is "merely expected" to record the findings for bail, the Delhi High Court preferred to discuss all those issues concerning the Act of 1967 elaborately bringing reference to various leading cases on the matter. The Court did not hesitate to mention every bit of sources that helped them to decide to grant the bail. Undoubtedly, all these facts and findings will help at the time of hearing of the cases and will offer the Court a host of resources on the issues brought forward in the allegations. This will also give a hand to the accused to see the things in the light of the Court's explanation of the allegation. It is here that the Court is reportedly criticised in the Apex court.

The High Court appears to be disgusted with the above findings which finally found expression in para 45 of their verdict which reads - "We are afraid, that in our opinion, shorn-off the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under sections 15, 17 and/or 18 of the UAPA". The Court held clearly that "Even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been a party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a 'terrorist act' or a 'conspiracy' or an 'act preparatory' to the commission of a terrorist act as understood under the UAPA." Hence, the Court finally concludes at para 48 as, "We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed 'right to protest' and 'terrorist activity. If such blurring gains traction, democracy would be in peril." Let the draconian laws that provide handles to the executives for making their interpretation of law be amended to remove the ambiguity in the provisions; let the protesters like Devangana, Akhil et al not get punishment for the crimes that they have not committed and let the voice of the protesters be louder so that it can be heard from any corner of the nation.