Updated: Jul 18, 2020

New Delhi: Varavara Rao. Sudha Bharadwaj. Devangana Kalita. Safoora Zargar. Mahesh Raut. It is not only their labelling as criminals that ought to be questioned; rather, far more insidious is the legal process, which ensures that proving their innocence or guilt is rendered irrelevant.

In an earlier piece, written what seems like an eternity ago on 21 April 2020, I outlined why the brand of criminalisation sponsored by the Unlawful Activities Prevention Act,1967 (UAPA) is an affront to the presumption of innocence and its connected presumption of harmlessness.

The vague, almost boundless, scope of the offences of “Terrorist Act” and “Unlawful Activity” created under the UAPA allows for punishing thought crimes, where the act itself might matter far less compared to the intentions allegedly imputed to a person. These allegations can only be refuted at trial, in all probability being fought by the accused from behind bars, as the chances for securing bail are exceedingly small.

However, the UAPA ensures—through pernicious procedural rules—that even if a person accused under the Act is ultimately acquitted, she suffers the punishment of the process. In this piece, I focus on these procedural rules which determine how a UAPA case unfolds.

A combination of factors ensures that a UAPA case exacts a significantly heavier toll on individual liberty than regular prosecutions. UAPA provides the least procedural protection for the most serious allegations that can be made under Indian criminal law.

In the absence of textual safeguards, and the express insertion of provisions designed to erode personal liberty, the only protections left are the institutions administering the process: the police, prosecutors, and courts. I argue that the courts have reduced the role of these institutions to marking tick-boxes in a procedural compliance checklist instead of providing active scrutiny for the protection of liberty.

Custodial Remands

Personal liberty is always precariously poised in India since the police have wide powers of arrest without a warrant. The primary legal tools to protect against arbitrary or wrongful arrest is through legal provisions on custodial remand and bail.

Under the general law, if the police require custody of an arrested person beyond 24 hours, this must be authorised by a magistrate. Ordinarily, police seek “police custody” where the person is needed for investigative purposes and “judicial custody” when there is no such need.

Police custody is limited to only the first 15 days after arrest. A magistrate does not simply authorise custody for 15 days but is normally extremely hesitant to remand a person for more than a few days at a stretch, after which a person must be produced in court again.

Through such periodic court appearances, the law attempts to ensure that the denial of liberty remains justified, that there is oversight over how police treat an accused and that there is in fact investigative work being performed.

Apart from placing strict limits on the duration of police custody, the Criminal Procedure Code (CrPC), 1973, also limits the period for which an accused may be detained during an investigation; police must complete an investigation within 60 to 90 days (depending on the gravity of the alleged offence) of arrest. On failure to meet this deadline, the arrested person becomes entitled to bail. Through these mechanisms, the law seeks to ensure there is no indefinite detention for purposes of investigation.

An accused in a UAPA case faces a very different legal reality than that charted under the CrPC. Similar to earlier anti-terror laws, today the UAPA expands the 15 days of custodial remand at a stretch to 30 days—including for police custody. The provision also permits the police to seek custody at any time during the investigation—not just at the beginning. On top of this, the UAPA allows the judge to permit custody during the investigation up to 180 days, instead of the 60/90 days under the CrPC.

Expanding time for police custody means that the tranches of such custody also become longer, which creates more chances for accused persons to suffer physical abuse at the hands of police without magistrates ever getting to know.

Doubling the time-limit for investigation allows for long periods of incarceration without the police themselves being confident of having a prosecutable case against the incarcerated person. This provision proves one link in the chain towards securing near-certain detention throughout the pre-trial and trial process.

Perverting The Presumption of Innocence

The situation in respect of bail under the UAPA is even more perverse.

Ordinarily, Indian criminal procedure has an intriguing remedy of “anticipatory bail”, which reflects a systemic acceptance that the police may exercise its arrest powers arbitrarily. A person who fears arrest can seek bail in anticipation of a wrongful arrest.

Here, wrongful suggests a standard that combines elements of malice and of being unnecessary for the investigation. The UAPA specifically disallows anticipatory bail not only for alleged terrorist acts, but for all offences of alleged terrorist activity punishable under the UAPA, including conduct such as attending meetings and protests, making speeches, giving loans, and of course, conspiring to do any of the above.

This leaves only one avenue of possible protection against unjustified pretrial arrest or custody—regular bail. The Supreme Court has often chanted the mantra that “bail not jail” should be the norm in criminal cases.

Beneath this homily is a basic incontrovertible principle, that a person who is presumed innocent must not suffer incarceration before proof of guilt is established beyond all reasonable doubt. This translates into a requirement—in theory at least—that as long as the accused will not flee or tamper with evidence, she should be released on bail.

Courts are not required to satisfy themselves as to the merits of the case at this premature stage, but the law does require judges to be more circumspect about granting bail where allegations involve commission of serious offences.

The UAPA dramatically flips the regular law of bail on its head. Here, courts are required by the statute to primarily focus upon the merits of the case to determine whether or not bail should be granted.

The test as per section 43-D(5) is for courts to refuse bail if, upon considering the police material, they are satisfied that there are “reasonable grounds for believing that the accusation against such person is prima facie true.” Note that this is standard for granting bail even where the investigation is ongoing and therefore the police itself might arguably not have all the material to make such a determination.

This small proviso strikes a body-blow to the presumption of innocence. The multi-layered problem with this clause requires some further unpacking.

First, by requiring that the court only consider the police material, the law creates an obvious incentive for the police to hide the less satisfactory aspects of their investigation from the court and at the same time disallows the accused to bring in material to refute the allegations, which is otherwise permitted during ordinary bail hearings.

Second, this exclusion of different perspectives undermines the statutory mandate to determine the “truth” of accusations under the UAPA, which has incorporated a standard that is not found in other laws and arguably warrants an even more searching inquiry than that of other laws, which ask a court to examine if the accused is “not guilty” before granting bail in serious cases.

Third, the consequences of asking a court to determine the existence of a “prima facie” case at this premature stage are very serious. After the police files a chargesheet, the court frames charges, that is, it decides for which offences the accused person will be tried.

If there is no prima facie case against the accused, the court will discharge the accused and she will not have to stand trial. At this charging stage, the court is required to conduct a similar, if not identical, inquiry into the prima facie case against the accused to determine whether charges should be dropped or not.

Under the UAPA, the accused faces a huge jeopardy in even applying for bail during investigation: lose and the accused suffers a huge blow to the chances of getting a discharge, ensuring that the pretrial custody is likely to continue throughout the duration of the case.

Dismantling Institutional Safeguards

An anti-terror law that carries severe stigma and sanctions requires robust procedural safeguards to ensure that such consequences are not visited without just cause.

India’s own history during the years of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and the Prevention of Terrorism Act (POTA) should have made Parliament especially aware of the potential for anti-terror laws to be wantonly misused when it went about amending the UAPA in 2008 to insert the set of provisions punishing terrorism. Yet in the UAPA one finds a reckless disregard for safeguards for personal liberty.

In such a scenario, where the statute itself abandons personal liberty, the only hope for securing constitutional guarantees rests with the actors who enforce the statutory framework. In this case, it means expecting the police and prosecutors to discharge their duties faithfully, and courts reading the law strictly to give a meaningful interpretation to the minimal safeguards in place.

In a recent book, The Truth Machines, through the context of confessions and forensic examinations Jinee Lokaneeta explains how even the most robust procedural safeguards can be rendered meaningless without institutional forces discharging their obligations faithfully. Procedural safeguards lose all bite if a judge does not care to inquire into the condition of an accused brought before her or to question the police about why they seek further custodial remand.

In the context of the UAPA, the development of law through courts has largely worked to reduce any sense of strict scrutiny on part of the courts.

For instance, in context of extensions of the period of custody, whenever these decisions are challenged by an aggrieved accused, the appellate process has been reduced to a checklist for courts: The Supreme Court in 2019 confirmed that if the papers show (i) progress of investigation, (ii) some reasons for further custody, (iii) the request is supported by the prosecutor, and (iv) that the court has said that it has considered the report, then it is assumed that any extension of remand was proper.

This reduced scrutiny acts on top of the already flawed practice as described in The Truth Machines and seen in context of the custodial deaths of Jeyaraj and Bennix, where the process of remand to custody by magistrates suffers from a general malaise of judges exercising minimal scrutiny over the process and routinely acceding to police requests.

An alternative reading of UAPA is possible, which requires an enhanced, rather than reduced scrutiny, for bail decisions. The statutory mandate to test whether accusations are prima facie true or not in deciding on bail opens the doors for strong judicial scrutiny.

Something akin to this approach was on display in the Delhi High Court’s 2018 order in Zahoor Watali v NIA. Judges tested the police material for accuracy and logical consistency rather than blindly accepting it as the gospel truth because it is a “terror case”.

But when the matter reached the Supreme Court in NIA v. Zahoor Watali (2019), the Court rejected an approach of subjecting the police case to strong scrutiny. Instead, it emphasised the preliminary nature of a “prima facie” inquiry and diminished the import of the statute suggesting a search for truth.

Symptoms Of A Deeper Malaise

The misery inflicted by the broadly-worded UAPA offences that invite misuse is severely compounded by the statute’s procedural regime.

Contrary to the most fundamental notions of liberal democratic republics, India’s premier anti-terror law promotes a regime where the allegations that attract the most severe condemnation and punishment are offered the most meagre procedural safeguards within its entire criminal justice architecture. As a result, citizens are destined to suffer years in prison even if they are eventually declared innocent of any crime.

It would be a mistake, though, to think that the UAPA operates in a silo from the rest of the criminal justice system. The default institutional setting across the entire system is to view procedural law merely as a matter of technical compliance rather than the mainstay for securing individual liberty in the criminal process.

This general malaise is only accentuated under laws such as the UAPA where even these statutory technicalities are thrown out the door. Similarly, the UAPA only accentuates a growing general tendency of courts to pay undue attention to the merits of a case—rather than the liberty rights of an accused person—while considering bail applications.

For this reason, highlighting specific issues with the operation of anti-terror laws must go together with increasing awareness about the many pitfalls of the regular criminal justice process in India. Without improving the lowest common denominator, it is unlikely that the same institutional forces will sing a different tune when state interests are supposedly under the most serious of threats.

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