Expanding terror law sets a troubling precedent

Supreme Court's no-bail ruling risks branding of dissent as terrorism, may normalise incarceration without trial.

The denial of bail for Umar Khalid and Sharjeel Imam – both accused in the 2020 Delhi riots case – by the Supreme Court of India raises serious questions about the delivery of justice and the practice of democratic rights in the country.

The two have been in jail for over five years; the Court ordered the release of five others who were arrested with them. Both have been incarcerated under the draconian Unlawful Activities [Prevention] Act (UAPA), the provisions of which violate the spirit and the best norms of democracy. Citing Section 43D(5) of the UAPA, the Court said that when prosecution material taken at face value disclosed a prima facie case, the statutory restrictions on bail must prevail.

It said Khalid and Imam stood “on a qualitatively different footing” as compared to the other accused, and so, could not be granted bail. It is a disappointing pronouncement, particularly concerning because the apex court has always protected the citizen who is a victim of prejudiced and vindictive action by the State, and guarded the basic freedoms granted by the Constitution.

The judgment has undermined many principles that the Supreme Court has laid down in the past and prescribed as guidelines for other courts. Its interpretation of the provisions of the law is skewed; the judgment normalises the incarceration of a protester, dissenter or activist by the State, and legitimises authoritarian actions.

The UAPA comes with stringent provisions for bail; the judgment has made it more difficult to obtain. With the Court considering what it calls a “hierarchy of participation” – a questionable distinction – for its selective granting of bail, a new ground has been proposed for the denial of bail. In the past, the Court has held that the accused, even in terror-related cases, have the right to bail when there is no likelihood of an early trial. Charges against Khalid and Imam have not been framed.

There are about 700 witnesses in the case, and the trial is certain to be prolonged. The Court said the pre-trial incarceration of the two was “substantial”, but maintained that it was yet to cross the “threshold of constitutional impermissibility”. It said the accused can move for bail upon the expiry of a period of one year from the date of the order. Why prescribe one year to cross the threshold? Is there a legal or constitutional basis for this prescription? The Court’s position that the delay in trial does not operate as a “trump card” in favour of the accused helps only the State. It means that the accused would be denied the benefit of the law if the State manages to delay the trial, which it has done.

The Court has accepted the prosecution’s argument that Khalid and Imam played a “central and formative” role, while the others had “merely conspiratorial association”. This acceptance is not based on evidence presented to and examined by the Court, but on the say-so of the prosecution, which claimed that the riots were coordinated and orchestrated in protest networks and WhatsApp groups. Such “evidence” is inherently weak and should not form the basis of judicial decisions. Though the Court said a bail plea was not the stage for a mini-trial, the turn of events on Monday had the markings of one.

Disturbingly, the judgment expands the definition of terrorism – it says that Section 15 of the Act cannot be “interpreted narrowly to include only acts of blatant violence”, but would also include acts that “disrupt services and threaten the economy”. According to the judgment, a terrorist act is not confined to the use of explosives, firearms or conventional weapons. The Section could now be applied to acts such as disrupting economic supplies or essential services, and these do not necessarily have to be accompanied by immediate physical violence. This is a dangerous interpretation that goes beyond the text and a normal reading of the law, and may be used by the government to dub any protest or demonstration as an act of terror.

Under the broadened scope of this definition, all such movements can be brought within the purview of the tough law. The Court found that there are reasonable grounds to believe that the conduct of Khalid and Imam bore a prima facie nexus to a terrorist act – as defined under Section 15 of the Act – as direct participants in orchestrating the conspiracy through speeches, blockades, etc.

It would be a travesty of law, justice, and democratic rights if such actions were brought under the ambit of anti-terror enforcement. Courts have, generally, not been happy with laws that shifted the burden of proof to the accused. But this judgment sees even democratic activities as actionable under an anti-terrorism law that demands proof of innocence from the accused. The dangerous implications of such a reading of the law become clearer when it is noted that the UAPA is one of the most misused laws in the country.

In matters of cases that involve the rights of citizens, the Court should rather be on the side of the citizen than with the government. It is unfortunate when the highest court in the country is seen as supporting the government in cases that relate to excesses committed against citizens. It presents more reasons and latitude to override the rights of the citizen.

The Court said the right to personal liberty was of seminal importance and that prolonged incarceration was a matter of serious concern. But the concern has not been reflected in the operative part of the judgment. The Supreme Court’s judgments are the law. This is a judgment that makes a draconian law more powerful and takes the jurisprudence of freedom and democracy backward. It will hopefully be reviewed.