It is almost difficult to explain in words just how significant the Delhi High Court’s judgments granting bail to Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita are for the India of 2021.
Are they affirmations of the right to protest? A rap on the knuckles of the government for bringing indiscriminate criminal charges against anti-CAA protesters? An evisceration of the Delhi Police’s shambolic probe into the Delhi riots?
The three judgments are all these, no doubt, but they are also so much more: a breath of sanity in what has become a Kafka-esque criminal justice system.
India 2021: A Land of Ridiculous Criminal Charges
The Indian state has a long and ghastly tradition of detaining those who dare dissent against it for many decades now, beginning even before Indira Gandhi’s Emergency, and continuing long after it. Somehow, over 70 years, a nation that was founded on civil disobedience and the right to protest has come to normalise locking up those who follow those same traditions.
The lackadaisical attitude that we as a country have adopted towards personal liberty has allowed the state to get away with things it could have scarce imagined.
Now let’s be clear here: most countries have beef with student activists, human rights defenders and protesters, and have had for centuries. Authorities in countries with the greatest civil liberties and protections dream of finding ways to throw them in jail and stop them from making those in power feel uncomfortable.
What sets things apart in India at present is that the police are no longer just trying to make things difficult for their old enemies by accusing them of petty offences like obstructing an official in the performance of their duty, or violating prohibitory orders, or even more serious offences like rioting or arson, as is the norm for your average furious politician/cop. No, in India we now pull out the big guns at the first whiff of disaffection.
Students shouting slogans are accused of sedition. Lawyers representing people accused of being Naxals can be branded ‘Urban Naxals’ and accused of fantastical conspiracies to assassinate the prime minister. Protesters against a questionable law can be retrospectively called terrorists who incited communal riots.
Despite such claims by the police and the State clearly falling into the realms of fantasy, the courts have given the authorities carte blanche to unleash their inner JK Rowling, failing to nip such attempts to silence dissenters in the bud.
The most basic question that should be asked – what has this person actually done that is illegal? – gets buried in charge sheets that run up thousands of pointless pages and is never asked at bail hearings, let alone the trials that never arrive.
The invocation of these serious charges without any real justification is not accidental, indeed you could even call it a ‘toolkit’. They create a negative public narrative against the accused in the minds of the general public which is played up viciously outside the legal system.
They become grounds to deny the accused bail, thereby keeping them in jail for years at a time without conviction, ruining their lives on a personal and professional level.
And even better, they become a way to deter future protesters, and the more arbitrary and vindictive they are, the more they achieve this aim.
The Delhi riots cases have demonstrated just how well this toolkit can work, allowing the Delhi Police to demonise a vibrant protest movement that was willing to stand up to the might of Modi and Shah, and the young leaders who were at its forefront without having any traditional political affiliation.
The seeming success of this narrative, with the lower courts till now lapping it up without question, would not only be a death blow to the anti-CAA protests, but also ensure that every other attempt to take on government narratives would be stillborn.
Which is why the Delhi High Court’s bail orders for Tanha, Narwal and Kalita are so important.
Asking the Right Questions
Despite all the Delhi Police’s flowery rhetoric and grand claims of conspiracy, and despite their invocation of the dreaded UAPA, Justices Anup Bhambhani and Siddharth Mridul reminded India that we are, despite all the evidence to the contrary, a country where the rule of law is still a thing. And that even the mighty machinery of the Indian state under Home Minister Amit Shah has to make its accusations make some actual logical sense.
The Delhi Police claimed that Tanha was one of the ‘masterminds’ of the conspiracy that led to the Delhi riots in February 2020. Why? Because he was part of the Jamia Coordination Committee (JCC), a group of current and former Jamia Millia Islamia students that had been organising protests against the CAA. These weren’t typical protests, they said, clutching their pearls, these were aggravated protests.
Before you ask yourself how that equates to organising the worst communal violence in Delhi since 1984, note that the charges against Tanha included Sections 15, 17 and 18 of the UAPA – committing acts of terror, funding acts of terror and conspiring to commit/fund acts of terror.
The high court didn’t just take the Delhi Police’s claims at face value, like the lower court had when denying Tanha bail back in October 2020. They actually went through what the police were claiming about Tanha’s involvement, and tried to see if any of this justified something as serious as a terror charge, eventually stating:
Basically, what the court found was that the police hadn’t even made allegations against Tanha (leaving aside the question of what evidence they had) that amounted to a terror-related offence: the only specific action alleged of him was that he had handed over a SIM card to a co-accused. The rest of the allegations were only about helping organise protests – which, as the judges noted, remains well within our rights as Indian citizens.
A similar exercise was then conducted for the claims about Narwal and Kalita. The Delhi Police claim that they are members of Pinjra Tod, and were part of several WhatsApp groups that were involved in the same grand conspiracy that cunningly planned to turn protests into chakka jaams during then US President Donald Trump’s visit to India.
They are alleged to have helped organise the protests at sites in Jafrabad and Seelampur where violence later broke out (for which they were not present), and supposedly even distributed packets of chilli powder to women protesters to attack the police.
Like in Tanha’s case, the high court looked over the chargesheet and police documents to see whether the allegations by the Delhi Police justified the invocation of terror charges under the UAPA, eventually stating:
Fighting Back Against the ‘Terrorism’ of the UAPA
It may seem like this is hardly revolutionary stuff, that any person applying common sense to the situation would conduct a similar analysis. Unfortunately, however, the Indian courts have largely forgotten that they are allowed to ask questions about allegations like this at the time of bail hearings.
Indeed, the lower court that denied bail to Narwal and Kalita in January this year actually said that it didn’t need to look at whether the allegations make sense since the central government had already granted sanction for the charge sheet, showing there had been an independent assessment of the claims.
This spineless drivel was thankfully condemned by the Delhi High Court, which said that this review by the central government before granting sanction for UAPA cases to proceed “must never enter the consideration of the court when deciding whether the ingredients of any offence under the UAPA are disclosed in the charge sheet.”
While the malaise of courts forgetting to scrutinise allegations against accused persons at bail hearings is a general one, the Delhi riots cases involve a specific abuse of the law which is, unfortunately, becoming all too commonplace: misusing terror charges under the UAPA.
This is because of the infamous Section 43D(5) of the UAPA, which says that a person accused of a terror offence under the UAPA cannot be granted bail if the court finds, based on a perusal of the case diary/other documents, that “there are reasonable grounds for believing that the accusation against such person is prima facie true.”
In 2019, the Supreme Court in its Watali judgment said that said that the court must not go into the merits or demerits of the evidence against such an accused when conducting this analysis, and instead look at the totality of material and circumstances.
The Delhi Police seem to think that this means that they could just make claims that Tanha, Narwal and Kalita had engaged in terrorism thanks to their involvement in the protests, and that this would prohibit the courts from granting them bail, regardless of how outlandish the claims were.
They aren’t alone in this, with many police forces including the UP Police in Siddique Kappan’s case, taking the same view across the country – a view which sounds a death knell for liberty as it puts citizens at the mercy of vindictive authorities.
Justices Bhambhani and Mridul, fortunately, have a much better understanding of the law and how it is supposed to operate. They first conducted a deep dive into the definition of terrorism and how the term ‘terrorist act’ has been interpreted by the Supreme Court over the years.
They noted that “the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order.”
There has to be some actual genuine threat to the security of the State (a higher threshold than even a public order disturbance), that dealing with this involved the very defence of India. Given the allegations against the three accused at most disclosed the instigation of chakka jaams in some parts of North East Delhi, the judges found that this extremely high threshold was not met in their cases, even without getting into whether the evidence against them was strong or weak.
The judges gave short shrift to the Delhi Police’s incoherent attempts to justify the terror charges. Responding to an argument that even a likelihood that the accused’s actions could threaten India was sufficient to grounds to invoke terror offences, for instance, the judges pithily noted in the Tanha judgment that:
In an ideal world, what the Delhi High Court has done would not be extraordinary, but in Naya India, it truly is, especially in UAPA cases. These bail orders lay down a marker for how not just other high courts, but lower courts as well can and should approach allegations of terrorism and other serious offences.
They are a reminder that no matter the gravity of the offence alleged, it is still the responsibility of the State to prove an accused’s guilt, and it must not be allowed to deprive people of their liberty on the basis of slipshod investigations and conspiracy theories.
Setting the Record Straight
Justices Bhambhani and Mridul could have perhaps stopped at merely this technical point, but their judgments delve into the overarching issues at play in the Delhi riots cases as well, without overstepping their jurisdiction.
Some of the most significant points, which are relevant even outside the specific facts of these cases, include:
- It is irrelevant whether the police or the government or even the majority of the public think that a particular protest movement is justified or unjustified, or that the protesters are right or wrong. The right to protest would still exist.
- The state certainly has the right to impose reasonable restrictions on violent protests. But even if protests escalate beyond what is legally permitted and end up turning violent, they don't automatically become terrorist acts – there have to be some specific or particular allegations against an accused to justify invoking terrorism offences.
- Slapping serious charges like terrorism without any justification for doing so “would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation” and trivialises what is meant to be one of the most serious crimes a person can commit.
- If it is clear that the trial in a case is not going to take place for a long time (whether because of the deposition of a large number of witnesses or circumstances like the current pandemic), the courts don’t need to wait till an accused has languished in jail for an excessive amount of time before granting them bail. Provided of course that the accused isn’t a flight risk and isn’t likely to tamper with evidence/witnesses (for instance after a charge sheet has already been filed).
- Allowing pre-trial detention of an accused is not a meaningless formality. Courts need to remember that “the consequences of pre-trial detention are grave; that by being kept in custody, an undertrial accused, though presumed innocent, is subjected to psychological and physical deprivations of jail life; that the accused is also prevented from contributing to the preparation of the defence; and that the burden of pre-trial detention frequently falls heavily on the innocent members of the family.”
It is a fool’s hope to think that this one set of judgments by the Delhi High Court will fix the many ills of India’s criminal justice system. It may not even prove enough for Tanha, Narwal and Kalita, with the Delhi Police filing an appeal against the Delhi HC’s bail order in the Supreme Court. However, they have already become a symbol of hope that Judiciary can still do its job and act as a check on the excesses of the Executive.
Justices Bhambhani and Mridul have shown that there are still judges who will stand up for the right to protest, and will not allow the state to browbeat protesters into submission with exaggerated rhetoric.
They have done so in lucid, logical and legally sound terms, and if judges around the country adopt their approach consistently, India will be better for it.
As the cases of Tanha, Narwal and Kalita now go to the Supreme Court, we can only hope that the judges of the apex court understand the importance of these judgments in the India of today, perhaps best summed up in the following paragraph: