"Mujhe abhi bhi hamare samwidhaan mein bharosa hai (I still have faith in our Constitution)," Kerala Journalist Siddique Kappan had said on 15 June 2021 as he was escorted out of a Mathura Court in Uttar Pradesh.
The Mathura Court had, that day, dropped proceedings against Kappan and three other co-accused in the first FIR that had been registered against them on 5 October 2020. But the other FIR, the one in which he was booked under the stringent Unlawful Activities Prevention Act (UAPA), still remained untouched.
And Kappan remained behind bars, or as his nine-year-old daughter said this Independence Day: "forced into a dark room by breaking all of the freedom of a citizen."
Until, Friday, 9 September 2022, when a bench led by newly appointed Chief Justice of India (CJI) UU Lalit decided to grant bail to Siddique Kappan.
Finally, the journalist's bharosa in the samwidhaan was not in vain.
It must, however, be stated that Kappan's bail order comes only after nearly two years of incarceration, during the course of which he has lost his ailing, 90-year-old mother (four months after he was allowed to go see her for a brief period of five days), been terribly sick with COVID (he was already suffering from diabetes and blood pressure related problems), received treatment at AIIMS only after significant struggle by his lawyers and his wife (who wrote to the previous CJI saying that Kappan was "chained like an animal"), and refused bail both by the Allahabad High Court as well as a local court in Mathura.
The Case Against Kappan and What the Allahabad High Court Had Said
In October 2020, Kappan was arrested, along with three others, by the Uttar Pradesh Police while he was on the way to Hathras to cover the gang rape and murder of a 19-year-old Dalit girl.
Initially arrested over alleged "apprehension of breach of peace,” soon after, a second FIR was registered against them under sections of the UAPA.
The police alleged that on the basis of a primary investigation in the first FIR, there was a criminal conspiracy being hatched to destabilise peace and break law and order in Hathras. His bail plea was first rejected by a court in Mathura, Uttar Pradesh, after which he moved the Allahabad High Court.
In their order refusing bail to Kappan, the Allahabad High Court, was of the opinion “that the applicant had no work at Hathras” and that “a perusal of the charge-sheet and documents adduced, prima facie reveal that the applicant has committed the offence." Thus, Kappan was refused bail by the High Court, and in doing so reliance was placed on apex court's judgment in NIA vs Zahoor Ahmed Shah Watali (2019).
"In the matter of National Investigation Agency vs. Zahoor Ahmad Shah Watali, the Apex Court...has stated that Section 43(D)(5) prohibits a Court from granting bail to accused if on a perusal of a final report filed under Section 173 CrPC, the Court is of the opinion that there are reasonable grounds to believe that the accusations against such person are prima facie true," the Allahabad High Court noted.
It added that "the Apex Court has also (in the Watali judgment) observed that the High Court had applied an altogether wrong approach by examining and evaluating the evidence in detail."
Further, the High Court said that the court is not supposed to delve into the admissibility and inadmissibility of documentary and oral evidence at the stage of bail.
A Quick Glance at the Watali Judgment
Bail is already very difficult for someone who has been accused of terror-related offences under the UAPA. This is because, as per Section 43D(5) of the Act, a court cannot grant bail to the accused in such cases, if there are reasonable grounds to believe that the accusations against them are prima facie true.
The Watali judgment of 2019 takes this one notch higher, by holding (as explained here) that the courts should not go into the details and the admissibility of the evidence, but look at the "totality of the material" produced by the investigating agency.
This, as pointed out here, is also why most of the Bhima Koregaon accused have continued to languish in endless wait of bail (or trial) despite the nature of the evidence against them repeatedly being brought into question, and reports suggesting that incriminating material may have even been planted on their devices.
The Watali judgment is also why Umar Khalid, an accused in the Delhi Riots 'Conspiracy' Case, has been struggling for so long to get bail despite large gaping holes in the testimonies employed against him – although we are yet to see what the Delhi High Court eventually concludes in his bail plea.
But Then, Why was the Supreme Court Not Hindered by the Watali Judgment?
The apex court's reasoning is simple:
While refraining to comment in the order on the "progress and investigation and material gathered by the prosecution in support of its case", the top court considered "the length of custody undergone by the appellant" and "the peculiar facts and circumstances." Thereby, Kappan was granted bail.
This is a fairly logical, and not entirely unprecedented.
If Watali is perceived as an additional hinderance to grant of bail under the UAPA even when the evidence relied upon is highly questionable, there have been other cases where the Supreme Court has reinforced fundamental rights even of UAPA accused.
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 (ie 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
Even though KA Najeeb wasn't cited by the apex court in their brief order granting bail to Kappan, the logic is evidently the same. Remember that the top court, by its own admission, took the length of custody undergone by Kappan and "the peculiar facts and circumstances" of his case into consideration before arriving at a decision. This is significant as it means that heed was paid to Kappan's fundamental rights as guaranteed by Part III (and the length of time he spent behind bars was noted), in a decision firmly rooted in constitutional values and principles of natural justice.
But the top court cannot be lauded merely for its order in Kappan's case, without being credited for its approach during the hearing: how they refused to shy away from questioning the nature and the import of the evidence produced by the state.
The Top Court's Approach
First, the bench led by CJI Lalit reportedly asked the state how the literature found with Kappan was provocative in nature, and if was provocative, if there had been any attempt by Kappan to use it.
To this, Senior Advocate Mahesh Jethmalani (who was appearing for the State of Uttar Pradesh) said that the whole purpose of Kappan’s visit to Hathras was to incite violence and that the literature was a “toolkit” for that purpose.
Then the CJI asked what exactly the nature of the literature was, and was told by Kappan’s counsel that they were pamphlets titled "Justice For Hathras Girl".
Following this, the bench asked the state which of the material in the said literature was said to be potentially dangerous, and the latter read from a pamphlet which talked about the brutal assault on the minor, her death and its reported aftermath.
“So you play the optics to stir up feelings,” Jethmalani alleged.
But the CJI, eventually asked:
"See every person has the right to free expression and therefore he is trying to propagate an idea that there is this victim who requires justice and therefore let us raise a common voice. Is that something like a crime in eyes of law?”
The Importance of SC's Question
Arguably, this is a question which several courts across the country should ask themselves when confronting the tsunami of UAPA cases that are threatening to subsume the last dredges of free speech and dissent. This is especially pertinent, considering that under the UAPA, the process itself is the punishment and bail is anyway so incredibly hard to come by.
It does not take much to arrest someone under the UAPA. If it were, we would have far fewer journalists and activists getting locked up for merely voicing an unfavourable opinion.
However, most UAPA cases result in acquittal, because evidence for conviction cannot be as flimsy as at bail-stage.
According to figures released in the Rajya Sabha this year, a total of 5,027 cases, with 24,134 accused persons, were registered under the UAPA between 2016 to 2020 in the country. However, only a mere 212 of the 24,134 people were convicted, while 386 have been acquitted. The figures also show than 97.5% of those arrested under the UAPA, have been incarcerated for multiple years without a trial in sight.
Overcrowding in Jails
Jails are already packed beyond capacity with under-trials, posing a serious threat to the health and safety of the accused.
Right to life is fundamental and guaranteed to all, including prisoners. It is a provision of part III of the Constitution of India, and the Supreme Court has repeatedly held that such provisions should be given widest possible interpretation. An accused under the UAPA does not automatically relinquish these rights.
In a press note seeking improved medical care for prison inmates, family and friends of several accused in the Bhima Koregaon case said:
“Both international treaties and prison manuals in India are clear about the fact that prisoners have the unalienable right to healthcare, including the right to not contract diseases in prison. However, the overcrowding of prisons in India, mainly due to the high number of undertrials, has led to prisons becoming hazardous to the life and health of its inmates…”
The Situation of Other UAPA Accused
And yet, a bail order such as the apex court's in Siddique Kappan's case is not frequent at all. Remember, it took Kappan several rounds of other courts before the matter was taken up and addressed this way in the apex court.
Meanwhile, numerous other UAPA accused are nowhere close to this, despite having been incarcerated for just as long (or longer). Several of them are also suffering from terrifying ailments such as Kappan's own co-accused Atikur Rahman, who was allowed to undergo an open-heart surgery at the AIIMS, Delhi only after his family filed a writ petition at the Allahabad High Court. Even after that, his health condition has continued to deteriorate in jail.
Seeking his immediate release, Amnesty International has pointed out that since March 2022, Rahman has been hospitalised multiple times. In addition to an existing heart ailment, he has reportedly also now developed a neurological disease. The left side of his body has been paralysed and he is also now struggling with memory loss.
And then there is 31 year old Mohammad Alam, a cab-driver, who was also arrested along with Kappan. The Lucknow Bench of the Allahabad High Court had granted him bail on 23 August stating that “no such incriminating material was recovered from the possession of Alam”.
However, Alam is reportedly yet to step out of his jail. According to Maktoob Media, Alam’s lawyer Saifan Shaikh has said:
“He has been arrested in an ED matter, a complaint in a PMLA case that was filed months ago. That is the reason why despite bail in the UAPA case, he has not been released yet.”
According to the apex court's order in Kappan's case, his lawyer Kapil Sibal pointed out that after his apprehension in the UAPA case, proceedings under the Prevention of Money Laundering Act, 2002 have also been initiated against him – "in connection of which the appellant may be required to attend the proceedings or to apply for bail."
Thus, while the order in the UAPA case against Kappan is a welcome display of fundamental rights being upheld by the top court, and an excellent follow up to the recent grant of bail by the apex court to journalist Mohammed Zubair and activist Teesta Setalvad (both of whom had been held under different charges but on equally questionable pretexts), one can only hope that it translates into justice on the ground, that Siddique Kappan finally gets to really step out of what his daughter calls "a dark room", and that the others who, like him, have been languishing in seemingly endless wait, get to do so too.
(With inputs from LiveLaw, The Wire, Maktoob Media and Bar and Bench.)