New Delhi: In April 2024, a division bench of the Jammu & Kashmir and Ladakh High Court passed a judgement while granting bail to Khursheed Lone, prosecuted under the Unlawful Activities (Prevention) Act (UAPA) 1967, remarkable on three counts.

Firstly, bail was granted in the case that concerned terrorism charges in Kashmir.

Secondly, the High Court dealt headfirst with a critical issue for bail jurisprudence under the UAPA—whether a court can conclude that accusations are not ‘prima facie’ true for bail, after it has held that there is a ‘prima facie’ case and framed formal charges against an accused?

Thirdly, the answer was a resounding ‘yes’, and the High Court rejected the government’s case, which effectively sought to preclude bail in UAPA cases where charges were framed. 

Out of all these remarkable facets meriting lengthy discussions, what stood out were the observations in a prefatory section, which merit quoting in full:

The question of internal security may be real, or a bogie which the state attempts to compel the Court to believe as real, by impressing upon the Court on aspects of internal / national security and thereby try to get the Court to dismiss the application for bail by the contending that the imperatives of internal security demand that the accused remain incarcerated even in the absence of judicially cognizable material against the accused only because there is a suspicion that the accused may be involved in the offence as charged. An overbearing subliminal belief in the primacy of internal security of the State in the subconscious mind of the judge, could result in the inadvertent oppressive application of a draconian law resulting in the denial of liberty, unsupported by judicially cognizable material. The words of the French thinker Voltaire on internal security are relevant when he says, “Beware of the words ‘internal security’ for they are the eternal cry of the oppressor.”

It takes great courage to state the issue so plainly, especially in a judgement emerging from the political context of Kashmir. 

The judgement is one amidst a series of judgments where the High Court has come down heavily against the stance adopted by the government, imposing costs on occasion as well—most notably in the case of Advocate Ali Mohammad Lone where not only was his preventive detention order set aside but compensation of Rs 500,000 was awarded.  

Returning to the judgement in Khursheed Lone’s case, the paragraph extracted above reminds us that  much like most other persons, judges are likely to subconsciously draw a line where the liberties of a few can be curbed if this is necessary to safeguard the security of many. 

There is no point trying to assume otherwise. Especially where the law itself, in the form of section 43D(5) of the UAPA, places such a premium upon the accusations to decide a matter of pretrial custody for persons otherwise presumed innocent under law. 

Rather than adopt a posture of studied indifference, the High Court addresses the problem directly and points to one manner in which judges can safeguard this subconscious bias that creeps in the discharge of duties—ask questions of the prosecution, to discern if there is any real substance beneath the rhetoric or whether the invocation of national security is a ‘bogie’ as the Court puts it. 

In Khursheed Lone’s case, the Court did not find any such substance, considering that the man had been on bail for nine years in respect of the same accusations that were the basis of the UAPA charges against him. 

As I said, it was a remarkable case all around.

A Deeper Problem

The issue which the High Court’s judgement does not deal with, however, is what happens if the law itself allows the state to turn rhetoric into reality. 

What if the law is framed in language to cast such a wide net that it no longer matters whether what a person did actually created even the tiniest ripple in the even tempo of society, but what matters is whether the government felt that it is likely to have such an effect. 

This is not a hypothetical but the very formulation that is adopted under the UAPA’s clauses defining terrorist acts (section 15), conspiring or preparing to commit such acts (section 18), and so on. It permits prosecutions not only for committing acts that cause loss or life or property, but acts which have a likelihood of doing so. 

This is why the UAPA is criticised, as I have previously written in Article 14, as a law potentially permitting the criminalisation of thought itself.  

How do we draw lines to determine what is likely or not? 

If one was to frame the problem in the law’s language, this issue presents a problem of delegation. One way to interpret and apply laws like the UAPA  is that they delegate the issue of deciding what is a likely security threat entirely to the government. 

The law enforcement agencies are the experts, and their view demands deference from courts so long as there is some basis backing it. Courts can look at the sufficiency of that material but not question the conclusion itself of whether a threat existed or not. 

The other way to interpret the law is that courts exercise judicial review not only by testing the sufficiency of the material, but the sufficiency of the conclusion itself. Let’s call this strong judicial review for now.

Often, testing the sufficiency of material is likely to allow testing the sufficiency of the accusation itself, as in Lone’s case. However, it will not always be the case, which is why we need a clear support for strong judicial review rather than beat around the bush on the subject. 

Consider a scenario where the government insists that giving a speech to a crowd in which the orator condemned various laws and policies affecting students such as botched entrance exams and called upon them to protest against such policies was inflammatory and likely to threaten the unity of the country, and contends that this speech to protests in parts of country disrupting essential supplies. It satisfies all ingredients of section 15 of the UAPA. 

If courts must defer to how the government frames a threat, this clinches the issue, and lands social reformers and politicians such as Jayaprakash Narayan besides many other stalwarts in jail as terrorists. ‘JP’ as older readers would remember, tapped into student unrest to spread a popular movement which rocked several state governments and, as many argue, ultimately led to the Emergency on 26 June 1975. 

Curious, then, that at a time when the current government marks the date a ‘Samvidhaan Hatya Divas’ (Constitution murder day) to remind us of the time when judicial review was rendered wholly subservient to the whims and fancies of the government, it endorses laws which potentially allow for the same situation to be reenacted. 

There is then the related problem of the reactive nature of judicial review. Even if we find some level of endorsement for the strong judicial review in which courts need not show deference to the government’s view on whether something is a security threat or not, we cannot escape the fact that the exercise of this review takes months, if not years, in India. 

Take the case of the bail applications in the ‘Delhi Riots’ cases, which one report described as the ‘never-ending’ bail hearing with some pleas pending for more than two years. 

Till that time comes, a person’s liberties are surrendered to the will of the government, while the blind scales of justice continue to insist upon the presumption of innocence.      

In a sense, then, what the High Court does is identify how to treat what is a symptom, in respect of how prosecuting agencies are working. 

The real problem lies elsewhere, in the law itself. Can one really blame prosecuting agencies for repeatedly launching cases if this is the plain text of the statutes? 

Post-Script: Maharashtra’s Public Security Bill

If the UAPA gives us a taste of what the blending of rhetoric and reality looks like, we have been given a glimpse of the full course with the outstandingly oppressive and draconian Maharashtra Public Security Bill 2024. 

It is a radically decolonial measure, much in the vein of the Bharatiya Nagarik Suraksha Sanhita 2023, which is designed to secure citizens from crimes by identifying ‘front’ organisations committing unlawful activities. 

What are these unlawful activities, you ask? 

Confusingly it is not the ‘unlawful activity’ punished under the UAPA, which is essentially any act preaching secession / cession of territory, but here it is defined as any act which “interferes or tends to interfere with the administration of law or its established institutions and personnel”, or generates “fear and apprehension in the public”, or “encouraging or preaching disobedience to established law and its institutions”, to name a few. 

If viewed from the lens of delegating identification of threats to the government, ‘unlawful activity’ is shorthand for punishing anything which the government thinks is unlawful, giving almost free licence to proscribe any organisation which the government thinks should be banned. Radical decolonisation at its finest.

Echoing what the lawyer Colin Gonsalves has argued in his passionate critique of the Bill, the blame for such overpowered legislation, which all but extinguishes personal liberties to the will of the government lies upon the judiciary which has failed to decisively confront the problem of laws allowing such an excessive overpowering of government in the first place. 

Without confronting the argument of balancing liberty and security interests, and implicitly condoning a utilitarian framing which condones loss of liberty for an imagined other to secure the greater good for ‘us’, we cannot expect governments to not take advantage and give concrete shape to their populist discourses. 

In the pursuit of an impossible and unachievable idea of balancing, the real loser is our constitutional virtue of equality, because that framing of the loyal ‘us’ and the criminal ‘other’ proceeds on repeat patterns of discrimination such that it is possible to flesh out that ‘other’ who’s liberty the law is content in sacrificing with the characteristics of society’s populist prejudices. 

Continuing to address symptoms of this problem by demanding greater accountability from the prosecuting agencies, as was on display in the Khursheed Lone bail orders, may in some cases help courts to restore liberty to persons incarcerated for a few years. 

It will never succeed in resetting the scales of justice, in which the weight of liberty has considerably shrunk, especially for some, in the face of the phantasmic intonations of national interest. 

(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)

Get exclusive access to new databases, expert analyses, weekly newsletters, book excerpts and new ideas on democracy, law and society in India. Subscribe to Article 14.