Bail hearings in Delhi riots cases can be a test for liberty under UAPA

Delhi Riots cases have tested the commitment of the judiciary to upholding personal liberty. The SC can clarify on the law and protect personal liberty.

Over the last three years, a series of cases collectively called the Delhi Riots cases have tested the commitment of our judiciary when it comes to upholding personal liberty and the rule of law. These cases have arisen out of the violent events in Delhi in February 2020. In their aftermath, the police initiated multiple prosecutions under the Unlawful Activities Prevention Act (UAPA), many of them against individuals at the forefront of protests against the Citizenship Amendment Act (CAA). It is the police’s case that CAA protests were part of a well-planned conspiracy that culminated in the riots, with the intention of spreading terror.

A prominent case is that of Umar Khalid, whose denial of bail by the trial court and the Delhi high court was on flimsy grounds, resting primarily on his being part of a WhatsApp group whose stated task was to coordinate protests, and a speech that he gave(ANI)

Because of the peculiarities of UAPA, getting bail is only possible if the police fail to make out a prima facie case.

This low threshold coupled with the snail-paced criminal trials in India means that UAPA is a weapon of choice to keep people behind bars for years without trial. Indeed, it is striking that in many of the Delhi riots cases, people have spent almost three years in jail, and the trial has not begun.

It is for these reasons that cases such as these need a vigilant judiciary: One that will rigorously scrutinise the police’s case, and not be hesitant to grant bail if the facts don’t add up.

Unfortunately, in some instances, the judiciary has elected to defer to the State. Instead of requiring the police to demonstrate how, specifically, a conspiracy is made out from a clutch of unrelated facts, the courts have filled in gaps in the police version with their own inferences, and used that to deny bail.

For example, in a case involving activist Safoora Zargar, the trial court ignored the fact that Zargar was not present at any of the scenes of the violence, and ostensibly instead criminalised her very act of protesting by observing that, “If you play with embers, you can’t complain if the wind carries them too far.”

Zargar was eventually granted bail on medical grounds, but this judgment remains a stain on the judiciary’s commitment to uphold the rule of law and check State impunity.

Another prominent case is that of Umar Khalid, whose denial of bail by the trial court and the Delhi high court was on flimsy grounds, resting primarily on his being part of a WhatsApp group whose stated task was to coordinate protests, and a speech that he gave. In reasoning that may be remembered for all the wrong reasons, the high court found fault with him for not adding the word “peaceful” before the word “revolution”, in his speech; this, in a country where revolution is one of the staple features of any political campaigning and rhetoric.

What underlies these rulings, however, is a clear reluctance on the part of the courts to view the police case with scepticism. This is particularly problematic in UAPA cases, where deference could mean a decade in jail without trial, something that is, or should be, an anathema to a civilised legal system.

In UAPA cases, thus, it is particularly important for the court to insist that the police provide specific and particular allegations of law-breaking, and not simply conspiratorial implications from a disconnected and random set of facts.

The various rulings of the trial courts and high courts have provided the Supreme Court with an opportunity to clarify the law in the direction of personal liberty. As these cases finally wind their way to the apex court, it can clarify the position on bail under UAPA, and adopt the more progressive reading that requires the State to demonstrate, and not merely assert its case. If the top court were to do that, a lot of these cases would simply collapse, and there would be no case for denying bail.

Indeed, the first of them – Umar Khalid – is coming up before the apex court very soon. This is the perfect time for the court to protect liberty, defang UAPA, and set an example that unsubstantiated allegations of conspiracy are not a good enough reason to keep people in jail. That first and crucial interpretive step must occur soon.

Gautam Bhatia is a Delhi-based advocate. The views expressed are personal