Umar Khalid UAPA Bail Plea: The High Court Order Contradicts Itself and History

If we are talking about Robespierre and Nehru, let's also look at how other freedom-fighters perceived revolution

There was a protest, but not "a typical protest".

There were calls for revolution, but not a "bloodless revolution".

The Delhi High Court judgment upholding special court's order denying bail to former JNU student and UAPA accused Umar Khalid in a Delhi Riots larger 'conspiracy' case is a consortium of contradictions. Not merely for what it says in the judgment, but for how the court contradicts its own past judgment — and also historical figures of authority.

Yes, the Supreme Court did say that the past judgment in which the Delhi High Court had granted bail to Natasha Narwal, Devangana Kalita and Asif Iqbal, will not be treated as precedent until the matter was fully decided (which has not happened yet).

But, as an academic exercise, we should still compare the two views (and approaches) adopted by the Delhi High Court with regard to anti-CAA protests, right to protest, and the overarching UAPA, that seems to penalise mere protests quite often.

NOTE: Narwal, Kalita and Iqbal were booked in the same case – FIR number 59 of 2020 – under the same Act (UAPA) as Khalid. In fact Justice Siddharth Mridul was also on the division bench adjudicating all these bail pleas (with Justice Anup Jairam Bhambhani in Narwal, Kalita and Iqbal's case, and with Justice Rajneesh Bhatnagar in Khalid's case).

Protest vs Terrorism

IN NATASHA, DEVANGANA AND ASIF'S CASE

Upholding a citizen’s right to protest —

“…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.” (Judgment granting bail to Devangana Kalita)

…And taking cue from past Supreme Court judgments, the Delhi High Court had in the former bail-orders said:

"The Government may even prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic but the Government cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Articles 19(1) (a) and 19(1)(b) of the Constitution.” (Judgement granting bail to Asif Iqbal)

Thereby, the Delhi High Court pointed out that terrorism cannot be conflated with “law and order problems” or “violent protests.”

Citing yet another apex court judgment, the High Court noted:

“... Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State.”

The court pointed out that terrorism is “inter-state, international or cross-border in character.” They also said that a fight against overt or covert acts of terrorism is not simply a regular criminal justice endeavour. 

IN UMAR KHALID'S CASE

And yet, in Umar Khalid’s case, the court said:

“Admittedly these protests (same Anti-CAA protests that the prosecution had cited to implicate the others in this case) metamorphosed into violent riots in February 2020, which began by firstly choking public roads, then violently and designedly attacking policemen and random members of the public, whereat firearms, acid bottles, stones etc. were used, resulting in the admitted and sad loss of 53 precious lives and the destruction of property worth several crores.”

Further, holding the protest to be “not a typical protest” — “normal in political culture or democracy but one far more destructive and injurious…”, the court said:

“The attack on police personnel by women protesters in front only followed by other ordinary people and engulfing the area into a riot is the epitome of such pre-mediated plan, and as such the same would prima facie be covered by the definition of 'terrorist act’.”

Essentially, while dealing with the bail pleas of some accused, the Delhi High Court conceded that a demonstration can take various forms (even being disorderly and violent) without being a terrorist act, BUT, with regard to another, it said that these protests were the reason for riots and thus the accused was rightly being prosecuted (and denied bail) under terrorism related charges. How the court arrived at this conclusion while adjudicating Khalid's bail plea remains unclear at the moment.

But, more importantly: how did we go from the court expressing concerns over the state 'blurring' the lines between ‘right to protest’ and ‘terrorist activity’, in its ‘anxiety to suppress dissent’; to the court upholding these same blurred lines?

The Definition of Terrorism: To Be or Not to Be (Narrowly Construed)?

IN NATASHA, DEVANGANA AND ASIF'S CASE

The most striking contradiction comes with regard to how the Delhi High Court deals with definition of terrorism under the UAPA.

Noting that in their view the definition of ‘terrorist act’ under section 15 UAPA is “wide and even somewhat vague", the High Court had in the former judgments held:

“It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed narrowly in order to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the legislature never intended to punish.”

Further, in their opinion that “intent and purport” of the Parliament in enacting and amending the the UAPA was to bring terrorist activity within its scope, was, “and could only have had been, to deal with matters of profound impact on the ‘Defence of India’.”

“Nothing more and nothing less,” the bench had said. 

IN UMAR KHALID'S CASE

BUT, in Umar Khalid’s judgment, they said that the definition of “terrorist act” under Section 15 of the UAPA includes:

“…not just the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity…”

“…not just the intent to strike terror but the likelihood to strike terror…”

“…not just the use of firearms but the use of any means of whatsoever nature…”

“…not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property…”

Thus, from suggesting that Section 15 should be “construed narrowly”, the court went on to throw Section 15 (the definition of ’Terrorist Act’) wide open to an array of constructions and interpretations.

Precedent May Not Apply, But (Academic) Analysis of Difference in Approach is Needed

At this point, it must be repeated, that the judgments in Narwal, Kalita and Iqbal’s cases CANNOT be used as precedent. This means that these judgments cannot be cited by any other persons accused of offences under the draconian UAPA while trying to obtain bail. And yet, the distinction in the approach may academically be addressed.

This is because one may wonder how did the same court go from perceiving protests (even those with alleged law and order problems) from the point of view of IPC, to literally examining them from the draconian lens of UAPA. The precedent may not apply, but how did the approach change so dramatically?

And even if the former bail orders don’t apply, it is worth looking at how the apex court judgments (which do hold validity and were cited by the Delhi High Court) have looked at right to protest and terror charges.

What has Supreme Court Held in the Past?

In Mazdoor Kisan Shakti Sangathan vs Union of India and Anr, the apex court had stated (once again) that right to hold peaceful demonstrations is a fundamental right, and said: 

“Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances.”

They had thereby added: 

“…A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests.”

In Himat Lal K Shah v Commissioner of Police, a Constitution bench of the Supreme Court had even gone on to hold that “…the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place.”

In Hitendra Vishnu Thakur case, the apex court had called terrorism an “abnormal phenomenon”, and said that the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and that it must not arise merely by causing disturbance of law and order or even public order.

Further, in Kameshwar Prasad vs State of Bihar, the apex court had stated:

“It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.”

So another question remains to be asked: if by “the very nature of things” a demonstration may take various forms, how is a protester, or someone calling for a protest, to know, what form the demonstration will assume. How are they supposed to tell if a protest may “metamorphose” into a riot or not? 

Then again, in Khalid’s case, the Delhi High Court says that the North-East Delhi riots were prima-facie orchestrated at various "conspiratorial meetings" and Khalid’s name finds recurring mention, from the beginning of the conspiracy till the riots. The High Court says this even though questions have been raised against the veracity of the evidence in Khalid’s case — such as inconsistencies in witness statements and the fact that Khalid had sent a total of just four messages among thousands in the five WhatsApp groups that were identified to implicate him, and none of his messages incited violence or called for riots.

HC Cites Nehru & Robespierre on 'Revolution' -- But What About...?

Social media is also abuzz with reactions to the court’s use of Maximilien Robespierre and Jawaharlal Nehru to draw a distinction between 'revolution' and 'bloodless revolution', while denying bail to Umar Khalid.

Referring to Khalid’s use of the terms "inquilabli salam" (revolutionary salute) and "krantikari istiqbal" (revolutionary welcome) at the beginning of his speech in Amravati, the court said:

“The call to revolution may affect many beyond those who were visibly present, which is why this court finds it apt to mention Robespierre, who was at the vanguard of the French revolution. This court is of the view that possibly, if the appellant had referred to Maximilien Robespierre for what he meant by revolution, he must have also known what revolution meant for our freedom fighter and first prime minister.”

Thereby, the court added that Nehru believed that revolution was superfluous because of democracy in Independent India and that “it meant the complete opposite of a bloodless change.”

Thus, the court added: 

“Revolution by itself isn‟t always bloodless, which is why it is contra-distinctly used with the prefix - a 'bloodless' revolution. So, when we use the expression "revolution‟, it is not necessarily bloodless. This court is reminded of that although, the activity of “revolution” in its essential quality may not be different but from the point of view of Robespierre and Pandit Nehru, in its potentiality and in its effect upon public tranquillity, there can be a vast difference.”

But if we are talking about Robespierre’s and Nehru’s perception of revolution, why not take (a very slight) detour in History and also look at how the revolutionary freedom-fighter Bhagat Singh perceived ‘revolution’. 

In an article for The Indian Express, historian Irfan Habib pointed out that in response to criticism of his use of ‘Inquilab Zindabad’ (Long Live Revolution), Bhagat Singh wrote:

“The sense in which the word revolution (Inquilab) is used in that phrase is the spirit, the longing for a change for the better…”

Bhagat Singh also told a court in 1929: 

“Revolution (Inquilab) is not a culture of bomb and pistol. Our meaning of revolution is to change the present conditions, which are based on manifest injustice.”

Habib pointed out, in his article, that Bhagat Singh’s revolutionary party, HSRA, had aimed at a revolution which was not for anarchy or lawlessness but for social justice.

And one does not remember Bhagat Singh experiencing the need to spoon-feed and say: "Bloodless Inquilab Zindabad."

Meanwhile in conversation with The Quint, Senior Advocate Sanjay Hegde said: 

"Given the harshness of the UAPA law, denial of bail may not be surprising, but the court went overboard with its observations on revolution. Those comments were beyond the merits of the case."

“Going by the Delhi High Court's logic, freedom fighter Maulana Hasrat Mohani, who came up with the slogan 'Inquilab Zindabad' could be behind bars under this draconian law."

Senior Advocate Sanjay Hegde

Yes, UAPA is Draconian...

Finally, yes the UAPA is a draconian law. And yes, denial of bail under UAPA is not surprising at all. You can be held back in jail for years on end if a court just looks at the police version and feels that there are reasonable grounds to believe that the terror-related accusations against you are prima facie true.

In a study published on 28 September 2022, People’s Union of Civil Liberties wrote: 

“One of the most stringent and draconian provisions of UAPA is regarding obtaining bail, as provided in Section 43D(5) of UAPA. In December 2008, major amendments were introduced to Sec. 43D(5) of UAPA…The amended provision denies bail if the court has reasonable grounds to believe a mere accusation against the accused as prima facie true.”

The study cites Lok Sabha data revealing that between 2018 and 2020, a total of 4690 persons were arrested under UAPA, and only about a quarter of them (1080) have got bail.

...But Bail Isn't Entirely Impossible

But, does this mean that a UAPA accused has to necessarily be condemned to spend years in jail (awaiting trial)? Well, not really.

In the KA Najeeb case, the Supreme Court held that that a provision like Section 43D(5) of the UAPA “does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.”

As explained here, this means that if a constitutional court (i.e. a High Court or a Supreme Court) sees that someone’s fundamental rights are being violated as a consequence of their arrest or prolonged incarceration, the court can grant them bail.

“This court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness, but also access to justice and a speedy trial.”

Apex Court in KA Najeeb Case

Further, most recently, in their order granting bail to Kerala journalist Siddique Kappan in a UAPA case a Supreme Court bench, headed by Chief Justice of India (CJI) UU Lalit , took “the length of custody” undergone by Kappan and "the peculiar facts and circumstances" of his case into consideration. 

The order came after Kappan had spent nearly two years of incarceration as an under-trial. Khalid has similarly been locked up for over 765 days. Now the ball is in the Supreme Court.