There can be little doubt that the slogans raised by right-wing Hindu activists at Jantar Mantar on Sunday, 8 August, amounted to hate speech. And not just dog whistles or innuendo, this was hate speech which expressly incited violence against Muslims, and was the type which starts riots.
Given these circumstances, there has been understandable confusion over the fact that a Delhi court granted bail to the man who organised the protest, at the scene of which these slogans were raised.
However, the truth is that the order granting bail to advocate and BJP leader Ashwini Kumar Upadhyay on Wednesday, 11 August was entirely in accordance with the law.
The judge's reasoning was absolutely correct, and there was no reason for him to allow the police to keep Upadhyay in custody. There was indeed no reason for the Delhi Police to have arrested Upadhyay in the first place, or to keep him in jail, even for a day, based on the information available.
Unfortunately, this scrupulous application of the law is an exception, rather than the rule, and therefore merits some serious discussion.
Why the Court Was Right to Grant Upadhyay Bail
The FIR by the Delhi Police in connection with the hate speech at Jantar Mantar has been registered under Sections 188, 268, 270 and 153A of the Indian Penal Code, along with Section 3 of the Epidemic Diseases Act and Section 51 of the Disaster Management Act.
Section 153A is the key offence here, for promoting enmity and hatred between groups on the grounds of religion. The other offences relate to the fact that the gathering at Jantar Mantar had not been permitted by the police and violated Covid restrictions.
The maximum punishment for any of these offences is three years in jail (it is lesser for some). Apart from Section 153A, all the other offences are bailable, ie, bail is a matter of right for the accused.
But even though Section 153A is part of the FIR, this doesn't necessarily mean that Upadhyay needed to be in custody, let alone denied bail.
In 2010, the Code of Criminal Procedure (CrPC) was amended to clarify that the police should only arrest people for offences where the maximum punishment was seven years or less, if they have received reasonable and credible information that the accused has committed such an offence AND the person's arrest is necessary
to prevent them from committing a further offence;
for proper investigation of the offence;
to prevent them from tampering with evidence;
to prevent them from threatening/influencing witnesses;
to prevent them from absconding.
Unless these conditions apply, the police are to instead follow the procedure in Section 41A of the CrPC. Under this, the police can send a notice to the accused to appear before them for questioning, and the accused has to comply with such a notice or face arrest.
The Supreme Court had reiterated the importance of following this procedure in its Arnesh Kumar judgment in 2014, explaining the reasoning behind it as follows:
“The power to authorise detention is a solemn function. It affects the liberty and freedom of citizens and must be exercised with great care and caution. Our experience tells us it is not exercised with the seriousness it deserves. In many cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, the Magistrate is duty bound not to authorise his further detention and release the accused.”
As the magistrate in Upadhyay's case observed, there was no information on record – including from videos of the hate speech slogans – to indicate any connection with Upadhyay. He had not raised these slogans himself, and there is nothing available at present to show that he was even present at the protest site when the slogans were raised.
While magistrate Udbhav Kumar Jain noted that the investigation was still at a nascent stage and therefore a possible conspiracy involving Upadhyay could not be ruled out at this time, he observed that there was little chance that Upadhyay, a longstanding advocate in Delhi with roots in public life, would abscond.
As a result, the conditions for arrest under Section 41 of the CrPC had not been satisfied in this case, and therefore he granted bail to Upadhyay.
Regardless of one's opinion about Upadhyay's 'Bharat Jodo' campaign or questions about his real agenda, the fact of the matter is that there really isn't enough material available as of now to justify his arrest.
The problem, of course, is that thousands upon thousands of people across this country languish behind bars for months if not years, even though – following the same standards used for Upadhyay – there are no grounds for their arrest and detention.
The Curse of Mechanical Remand Orders
You might think this problem is faced mainly by those who are critics and opponents of the government, or by minorities facing discrimination.
But the problem is far wider, and affects most accused persons, especially those from poor and marginalised communities, who can't afford a dream team of four senior advocates like Upadhyay.
An analysis by The Quint of remand orders passed from 30 April to 15 June 2021 – at a time when courts were directed by the Supreme Court to ensure people weren't being kept in custody unless absolutely necessary – revealed blatant violation of the principles of arrests and remand.
The investigation revealed "flagrant violations of the Supreme Court's guidelines in the Arnesh Kumar case, its commitment towards decongestion of prisons, and the basic principles of criminal justice."
Magistrates were found to be mechanically passing orders remanding the accused to custody even when the alleged offences were punishable with three years or less imprisonment. A lack of resources was the most visible common factor across these cases: in 81 percent of the cases, the accused did not have a lawyer present.
Of course, this habit of granting custody and denying bail by privileging the police's narrative and ignoring procedural safeguards can also be seen in cases involving political opponents of the government and dissenters.
Former Finance Minister P Chidambaram, for example, spent over 100 days in jail even though he was not accused of any offences punishable by more than seven years, was not a flight risk, and there was no risk of him tampering with evidence.
Anti-CAA protesters across the country were arrested and remanded to custody even when there was little evidence to show their presence at the scene of any crime and where the crimes didn't meet the Section 41 threshold.
Comedian Munawar Faruqui spent over a month in jail and two of his companions spent even longer, after their arrest for alleged offences that at most carried a three year punishment – for jokes they didn't even make.
Invocation of Draconian Laws Without Reasonable Grounds
While Upadhyay's release on bail went smoothly, those who don't fit his profile face several other hurdles.
IF THEY GET BAIL, HIT THEM WITH NSA
For some, like Dr Kafeel Khan, an order granting them bail isn't even enough. Following his involvement in anti-CAA protests, Dr Khan was originally arrested by Uttar Pradesh Police on 30 January 2020. Like Upadhyay, the key offence in the case against him was Section 153A of the IPC.
Unlike Upadhyay, he was not lucky enough to get a bail hearing the very next day. On 10 February, the chief judicial magistrate in Aligarh granted him bail and ordered his immediate release.
However, the police conveniently failed to release him on time, and then on 13 February a detention order under the draconian National Security Act (NSA) was passed against him.
Using the NSA's preventive detention powers proved a canny move: one cannot move the courts for bail for several months in such cases, even as the detention orders get renewed every three months. Bhim Army chief Chandra Shekhar Azad also spent over a year in jail thanks to such a detention order.
For both Dr Khan and Azad, it took the intervention of the Allahabad High Court to secure their release. The high court's order for Dr Khan's release was particularly scathing: not only was the detention order declared illegal, but the judges noted that the speech cited as the reason for him to be a threat to public order actually encouraged peace and unity.
They found that the NSA order was an afterthought, and noted that it was only passed after Dr Khan got bail in the original case. This was also the case with Manipur journalist Kishorechandra Wangchem, who was first arrested then slapped with NSA charges for critical comments about the BJP.
He was eventually released thanks to a high court order, only to be detained once again later, along with activist Erendro Leichombam, for saying that cow urine and dung could not cure Covid, in response to the death of a BJP politician.
Once again, the NSA was used to keep them in jail since no other charges could really stick, and it took the intervention of the Supreme Court to ensure their release.
SEDITION & UAPA
Given the NSA is a preventive detention law, it is still viewed as a more nuclear option, unless you're Yogi Adityanath's government in Uttar Pradesh. But even without invoking it, there are other ways to ensure an accused remains behind bars, even if the evidence against them is incredibly slim.
Option 1 is to invoke sedition, even for mere speech with no greater accusations of violence or conspiracy. Research by Article 14 has shown that there has been a significant increase in the number of sedition cases filed in the country since 2014, especially in BJP-ruled states, and a huge increase in such cases for political criticism (96 percent of all such cases since 2010).
Student activist Amulya Noronha Leona was booked for sedition and spent 110 days in jail merely for saying "Pakistan Zindabad" (reportedly as part of a poem for India, Pakistan and Bangladesh but even if not, these words would not amount to sedition according to Supreme Court precedent).
Even though she too should have been granted bail as the offence she was accused of could not possibly be made out, she was denied bail multiple times.
22-year old environmental activist Disha Ravi also spent several days in jail in the Delhi Police's ludicrous toolkit case after a magistrate remanded her to custody (unlike Upadhyay's, where the magistrate did his job), though the sessions judge at least passed a relatively swift order for her release.
Option 2 is of course the dreaded UAPA, which includes an express provision to make it almost impossible for those accused of terror offences to get bail.
While you might think that this is a sensible thing to do, given how serious terrorism is, UAPA terror charges have been brought in multiple cases without sufficient grounds to invoke them – perhaps with a view to precluding bail.
The Delhi High Court recently pointed this out in its judgments granting bail to Delhi Riots conspiracy accused Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita.
Similarly dubious charges have also been brought against the Bhima Koregaon accused, who, despite their age and despite reports of planting of evidence, remain in jail thanks to the UAPA's prohibition on bail.
If Upadhyay had been a dissenter or critic of the government, it is not difficult to imagine the FIR against him including a laundry list of provisions like sedition or UAPA charges, all of which would have made making bail difficult if not well-nigh impossible.
Therefore, even as we acknowledge that there was nothing wrong with the bail order for the BJP leader, we must ask why the same devotion to the law and fairness is not followed by magistrates and the police when it comes to the poor, the marginalised, minorities and dissenters.
Because that is what it means for a country to truly follow the rule of law.
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)