HCs should stay within limits

Mercifully, the Supreme Court had the good sense to nullify some of the damage caused by the smart aleck effort of two bleeding heart judges of the Delhi High Court to raise a red flag around a key piece of legislation like the Unlawful Activities (Prevention) Act, better known as UAPA, while granting bail to three misguided ‘student-activists’ for their involvement in the 2020 Delhi riots.

This is not to say that the SC has a paucity of bleeding-hearts all too willing to flash their borrowed western notions of liberalism and supplant them on the ancient soil of Bharat. Leading the pack is Justice D.Y. Chandrachud who gave us ample evidence of his wooly headed views in the Sabarimala judgement.

One shudders to think the pearls of secular wisdom which may drip from his maw just in case the top court decides to turn the Act in question on its head. Ruling out the possibility would be naïve, especially if the BJP loses in 2024 and the country lapses into anarchy under a ragtag bunch.

Ideally, the apex court should have struck down the bail order to send a clear message to their lordships Siddharth Mridul and Anup Bhambani that they had clearly overplayed their cards. They judges had no business giving their colored one-sided interpretation on the legality of the law running into 100 pages in the course of a bail hearing.

Though the two-judge SC bench of Justices Hemant Gupta and V Ramasubramanian made it implicitly clear that “the impugned order shall not be treated as a precedent” in any other bail proceeding given its national ramifications, they left the door ajar for judicial intervention with the loaded observation that “the manner in which the High Court had interpreted the Act will probably require examination by the Supreme Court”.

The UAPA requires no re-examination. Similar laws are in force in every country to keep internal enemies at bay. In October 2001, the U.S. Congress approved the Patriot Act in the aftermath of 9/11; it gave law enforcement agencies untrammeled power to monitor and detain people suspected of conspiring against the state without charge or trial.

Britain in 2019 introduced the U.K. Counter Terrorism and Border Security Act which had a provision giving the home secretary the power to designate a country, or region of a country, and make it an offence for British nationals and residents to enter or remain in that area.

Clause 1 of the Act makes it an offence to express an opinion or belief that is supportive of a banned body in situations where the influencer knows that the recipient of the opinion will be encouraged to support a proscribed body.

France and Germany too have laws dealing with anti-nationals. No democracy can afford not to. Considerable opposition exists to these laws among champions of civil liberty who think protest is their birth-right regardless of its nature and consequences.

Public intellectuals conduct weekly tirades in anti-government newspapers against the policies of the Centre. None of them has a good word for any government initiative. One of them, Pratap Bhanu Mehta wrote in his column for a Delhi newspaper that the Delhi HC ruling had ripped open the UAPA, the “black box of Indian jurisprudence”.

It is true that the original UAPA was enacted in 1967 to deal with terrorism at a time when such incidents were few and far between. No law dealing with internal security can afford to remain in a time warp. The Act has been amended on several occasions, the latest being in 2019, to imbibe the changing modes and techniques employed by terrorists. Options range from shifting the burden of proof to making extra-territorial arrests.

The SC too has been compelled to get more serious on issues impinging on internal security and safety. Not surprisingly, it drastically changed gears in the 2019 judgement National Investigative Agency (NIA) versus Zahoor Shah Watali which flew in the face of its pronouncements in the Sri Indra Das vs State of Assam (2011).

Back then then top court provided remedies to ‘indiscriminate arrests’ and the designation of ‘casual offenders’ as terrorists. It also ruled that mere membership of a banned organisation would not automatically incriminate a person unless he/she resorts to violence or incites people to imminent violence. Implicitly ruled out was the idea of “guilty by association”.

Seven years later it overturned the order of the Delhi HC granting bail to the Kashmiri businessman Zahoor Ahmad Shah Watali who was a conduit in terror funding to the Hurriyat, secessionists, and jihadis in league with other plotters. He was also charged of waging war against Bharat by repeated attacks on security forces and government establishments, damaging public property, burning schools etc.

The mountain of evidence, however, did not have the slightest effect on the two-man Delhi HC bench led by the bigoted liberal (yes, bigots abound among liberals too), Justice S. Muralidhar. He had the gall to defenestrate the special court’s order rejecting Watali’s bail with the familiar argument that the documents in the NIA’s possession did not warrant the assumption that the businessman was a channel for funding jihadi activity. Hence, there was no ‘prima facie evidence’ against him.

As in case of the student activists picked up for aiding and abetting the masterminds of the Delhi riots, the NIA challenged Muralidhar & co’s order in the SC with virtually the same argument that the HC had conducted a “mini trial” at a bail hearing and that the accused was a larger part of the conspiracy.

However, unlike Justices A M Khanwilkar and Ajay Rastogi who set aside HC order without batting an eyelid three years ago, his colleagues H.G. and V.R. played safe by letting the bail order stand despite expressing surprise at the virtual acquittal of the accused.

In fact, it is the lower courts who have sometimes been acting more responsibly. Hence, the reluctance of the Bombay HC to grant bail to the Elgar Parishad deviants in the Bhima-Koregaon case. This, despite having spent more than two years in jail, and the repeated extensions given to the Maharashtra police and the NIA for investigation.

The Bombay HC with its Nehruvian acculturation still intact is generally disinclined to back the Centre and it agencies when the ruling regime is non-Congress, the TRP case involving Republic TV being the most recent instance.  But it has been cautious in waxing eloquent in cases involving national security. And that it how it should be. It is best left to the trial to determine the culpability of urban Naxals and jihadis. No exception has been made even in the case of those who seek relief on medical grounds.

The SC, on its part, has refused to entertain petitions under Article 32 of the Constitution despite the popular liberal view that it is the “heart and soul” of the Constitution.

There is no doubt that there has been a sharp spurt in UAPA cases in the last two years. This is largely due to the persistent efforts of those who are still not reconciled to a nationalist regime’s long stint in power.

Fundamental rights guaranteed by the Constitution under Article 21 cannot extend to protesting on issues like the CAA which impact national security. It is the state’s prerogative to decide who are its citizens and who not.

If radicalized students of varsities like JNU and Jamia Milia have the gumption to conspire with jihadis in planning a communal riot, the lines between the right to protest and acts of terror will keep getting blurred. Especially when 53 people are killed, and hundreds injured. Hiding behind the Constitution or flashing copies of the book (as at Shaheen Bagh) does not cut any ice when the real intention is to overthrow an elected government. Opposing a legislation or policy is just an excuse to spread mayhem and anarchy.

The UAPA empowers a review committee constituted by the Centre to ‘denotify’ the individual notified as terrorist. There is no institutional mechanism for judicial review in such cases. Bottomline: judges lack the right to pour over the Act’s contents with a fine comb and proffer their blinkered views.

Oft heard observations by black gowned men that the foundations of our democracy stand on a surer footing than to be shaken by ordinary protests have a hollow ring. They show how utterly judges are out of sync with the times.


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About the Author

Sudhir Kumar Singh
Sudhir Kumar Singh is an independent journalist who has worked in senior editorial positions in the Times Of India, Asian Age, Pioneer, and the Statesman. Also a sometime stage and film actor who has worked with iconic directors like Satyajit Ray and Tapan Sinha. He writes regularly for the HinduPost as consulting editor.