A new jurisprudence for political prisoners

Kaleeswaram Raj *

A judgment of the Supreme Court of India on October 28, 2021 has immense potential to reclaim the idea of personal liberty and human dignity. In Thwaha Fasal vs Union of India, the Court has acted in its introspective jurisdiction and deconstructed the provisions of the Unlawful Activities (Prevention) Act (UAPA) with a great sense of legal realism. This paves the way for a formidable judicial authority against blatant misuse of this draconian law.

The background

In this case from Kerala, there are three accused. The third among them is absconding. The police registered the case and later the investigation was handed over to the National Investigation Agency (NIA). The accused were in their twenties when arrested on November 1, 2019. During the investigation, some materials containing radical literature were found, which included a book on caste issues in India and a translation of the dissent notes written by Rosa Luxemburg to Lenin. There were also leaflets that were allegedly related to Maoist organisations.

Thus, the provisions of the UAPA were invoked. Against the first accused, Allen Shuaib, offences under Sections 38 and 39 of the UAPA and 120B of the Indian Penal Code (IPC) were alleged. Section 38 deals with “offence relating to membership of a terrorist organisation” and Section 39 deals with “offence relating to support given to a terrorist organisation.”

Section 120B of the IPC is the penal provision on criminal conspiracy. Against the second accused, Thwaha Fasal, over and above these charges, Section 13 of the UAPA was alleged — which is the provision about punishment for unlawful activities. Both the accused were students and there were no allegations of any overt act of violence. According to the accused, the charges were an attempt to label them as terrorists, based on the intellectual and ideological inclinations attributed to them.

Judicial trajectory

The case had a curious trajectory. After initial rejection of the pleas, the trial judge granted bail to both the accused in September 2020. By that time, the students had completed more than 10 months in prison. The High Court, in appeal, while confirming the bail of Allen, chose to set aside the bail granted to Thwaha. The matter then reached the Supreme Court.

The Supreme Court, after a comprehensive examination, upheld the trial judge’s finding that the materials, prima facie, do not show any “intention on the part of both the accused to further the activities of the terrorist organisation”. It found fault with the High Court for not venturing to record, prima facie, findings regarding charges against Thwaha, whose bail was set aside by the High Court. The top court confirmed the bail granted to both the students. Now, they have been set free.

The Supreme Court was emphatic and liberal when it said that mere association with a terrorist organisation is not sufficient to attract the offences alleged. Unless and until the association and the support were “with intention of furthering the activities of a terrorist organisation”, offence under Section 38 or Section 39 is not made out, said the Court. Mere possession of documents or books by the accused at a formative young age, or even their fascination for an ideology, does not ipso facto or ipso jure make out an offence, the Court ruled.

The judgment can act as an effective admonition against a suppressive regime. It also exposes the hypocrisy of the law, the UAPA. Section 43D(5) of the UAPA says that for many of the offences under the Act, bail should not be granted, if “on perusal of the case diary or the report (of the investigation)… there are reasonable grounds for believing that the accusation … is prima facie true”.

Thus, the Act prompts the Court to consider the version of the prosecution alone while deciding the question of bail. Unlike the Criminal Procedure Code, the UAPA, by virtue of the proviso to Section 43D(2), permits keeping a person in prison for up to 180 days, without even filing a charge sheet. Thus, the statute prevents a comprehensive examination of the facts of the case on the one hand, and prolongs the trial indefinitely by keeping the accused in prison on the other.

Presumption of guilt

Instead of presumption of innocence, the UAPA holds presumption of guilt of the accused. Section 43E of the Act expressly says about “presumption as to the offences”. According to Section 43D(5), jail is the rule and bail is often not even an exception.

The Court, in Thwaha Fasal, refused to construct this Section in a narrow and restrictive sense. This analysis has to some extent, liberalised an otherwise illiberal bail clause. In the process, the Court has also tried to mitigate the egregious error committed by a two-judge Bench of the Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah Watali (2019) that interpreted the same provision.

In Zahoor Ahmad Shah Watali, the Court said that by virtue of Section 43D(5) of UAPA, the burden is on the accused to show that the prosecution case is not prima facie true. The proposition in Zahoor Ahmad Shah Watali is that the bail court should not even investigate deeply into the materials and evidence and should consider the bail plea, primarily based on the nature of allegations, for, according to the Court, Section 43D(5) prohibits a thorough and deeper examination.

As such, in several cases, bail pleas were rejected relying on Zahoor Ahmad Shah Watali, despite the strong indications that the evidence itself was false or fabricated. Many intellectuals including Sudha Bharadwaj and Siddique Kappan were denied bail based on a narrow interpretation of the bail provision as done in Zahoor Ahmad Shah Watali. Stan Swamy was another victim of this provision and its fallacious reading.

The top court has now altered this terrible legal landscape. For doing so, the Court also relied on a later three-judge Bench decision in Union of India vs K.A. Najeeb (2021). In K.A. Najeeb, the larger Bench said that even the stringent provisions under Section 43D(5) do not curtail the power of the constitutional court to grant bail on the ground of violation of fundamental rights.

The text of the draconian laws sometimes poses immense challenge to the courts by limiting the space for judicial discretion and adjudication. This is more evident in the context of bail. The courts usually adopt two mutually contradictory methods in dealing with such tough provisions. One is to read and apply the provision literally and mechanically which has the effect of curtailing the individual freedom as intended by the makers of the law.

In contrast to this approach, there could be a constitutional reading of the statute, which perceives the issues in a human rights angle and tries to mitigate the rigour of the vicious content of the law. The former approach is reflected in Zahoor Ahmad Shah Watali and the latter in Thwaha Fasal. In Thwaha Fasal, the Court has asserted the primacy of judicial process over the text of the enactment, by way of an interpretative exercise.

Delhi riots case

On June 15, 2021, the Delhi High Court granted bail to student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha who were charged under the UAPA for alleged connections with the Delhi riots. In an appeal by the Delhi police, unfortunately, the Supreme Court said that the well-reasoned judgment of the High Court shall not be treated as a precedent.

The Thwaha Fasal judgment has, by implication, legitimised the methodology in the Delhi High Court verdict that ventured to examine the content of the charge instead of swallowing the prosecution’s story.

It is this judicial radicalism that builds an emancipatory legal tool. The judgment should be invoked to release other political prisoners in the country who have been denied bail either due to the harshness of the law or due to the follies in understanding the law or both.