NEWS  The Delhi court ruling is a way forward in finding a balance between civil rights and the imperatives of anti-terror laws

CONTEXT 

Recently, Delhi High Court has granted bail to three activists, who have been in jail for over a year (without trial) for their alleged role in the 2020 Delhi riots.

IMPORTANCE OF THE BAIL

• • In India, courts are already overburdened, the justice system is creaking, and criminal trials take years.
  • In high-profile cases such as the Delhi riots case, where the record is bulky, and the witnesses number in their hundreds, trials can take many years — even a decade or more.
  • For this reason, bail becomes of utmost importance.
  • If an individual is not able to secure bail from the courts, they will languish as under-trials in prison, for the duration of the case, no matter how many years it takes.

• Bail, thus, becomes the only safeguard and guarantee of the constitutional right to liberty.

WORKING OF INDIA’S CRIMINAL SYSTEM

• India follows the adversarial system of criminal justice, where two sides to a dispute attempt to persuade the court that their version of events is true.
• This type of system follows the testing of evidence through cross-examination, where each side is provided the opportunity to scrutinise, challenge, and question the evidence produced by its opponent.
• The truth is unearthed by the closest approximation of it, after the rigours of cross-examination.

WHERE THE PROBLEM LIES?

• Ostensibly designed to check and address terrorism, the UAPA is perhaps one of the most abused laws in India today.
• The root of the problem lies in Section 43(D)(5) of this Act.
• In ordinary circumstances, when considering the question of bail, a court is meant to take into account a range of factors. But it is here that Section 43(D)(5) of the UAPA plays such a damaging role.
• As, under the criminal system of India, truth about innocence or guilt, can only be determined after the evidence of both the prosecution and the defence has been subjected to the rigours of cross-examination.
• But Section 43(D)(5) short-circuits that core assumption. As it binds the court to look only at the plausibility of one side evidence for the bail, i.e. the Prosecution.
• This is done despite the reason that this side has not been challenged by cross-examination, and requires that bail be denied as long as the unchallenged prosecution case appears to be prima facie true.

SIGNIFICANCE OF THE JUDGEMENT

This judgment is significant for many reasons:

• First, it ended many months of jail time for three people who are yet to be proven guilty of any crime.
• Second, the judgment represents an important judicial pushback to the authoritarian legal regime under the Unlawful Activities (Prevention) Act (“UAPA”).
• Third, the judgment indicates an important role for a conscientious judiciary to play.

FINER POINTS OF THE JUDGEMENT

• • The Bench of judges here correctly noted that even though Section 43(D)(5) departs from many basic principles of criminal justice, there are other fundamental principles that remain of cardinal significance. These include, for example, that:
    • The initial burden of demonstrating guilt must always lie upon the prosecution
    • Also, that criminal offences must be specific in their terms, and read narrowly, to avoid bringing the innocent within their net
  • On this basis, the court’s judgment notes that as the UAPA is meant to deal with terrorist offences, its application must be limited to acts that can reasonably fall within a plausible understanding of “terrorism”.

• “Terrorism” is a term of art, and not a word that can be thrown around loosely.

• Thus, to attract the provisions of the UAPA, the judgment holds — the charge sheet must reveal factual, individualised, and particular allegations linking the accused to a terrorist act.
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• The judgment then finds that even if the police’s claims are taken to be true, no such allegations exist.
  • At the highest, the accusations against the activists involve calls for protests and chakka jams (road blockages).
  • There is no act, overt or covert, attributed to the activists that could constitute a terrorist offence.

CONCLUSION

• A position under which citizens can be jailed for years on end just on the basis of police reports and case diaries, with courts restrained from granting them bail, is completely inconsistent with democracy, and reek of authoritarian states.
• Hence, the Delhi High Court’s judgment indicates important role for a conscientious judiciary to play a pathway forward in the quest for finding a balance between citizens’ civil rights and the imperatives of anti-terrorism legislation such as the UAPA.

Reference:

1. https://www.thehindu.com/opinion/lead/a-judicial-pushback-to-a-draconian-legal-regime/article34844076.ece