What Democracy Do We Seek?

The Supreme Court judgement in the Delhi riots bail matter has had predictable reactions. Whilst the government side has expressed satisfaction at two accused not being granted bail, the other side has noted the bail granted to five accused with satisfaction but obviously expressed distress at the denial of fail to Umar Khalid and Sharjeel Imam. The common ground for bail was the long delay of six years with arguments still stuck on framing of charges.

Beyond the ‘who got bail, who did not’ conundrum of concern, there are serious issues that have emerged in the judgment: first, the relationship between failure of the right to speedy trial and extent of alleged involvement, and second, the judicially expanded definition of terrorism. It is not as if the matter was res integra as lawyers call an area of law not before pronounced upon by courts of law.

The Supreme Court has on several occasions examined how traditional categories of law enforcement regarding law and order, public order etc are separated from national security issues, and obviously, the latter is of paramount concern and inevitably linked with terrorism. These judgments were extensively examined by the Delhi high court in Asif Iqbal Tanha’s case but directed by the Supreme Court on the state’s appeal, not to be treated as precedents.

The ostensible reason was that the Supreme Court felt that in deciding bail matters, the courts should not delve into detailed discourse on legislation. Yet, in the present case, the 162-page judgment seems to do the same. It is important to know that the senior counsel who argued for the petitioners, keeping in mind the Asif Tanha matter, decided to restrict their arguments to relevant facts but were encountered by extensive arguments by the prosecution in response.

In dealing with the instant judgment, it is only fair to underscore the lip service that the court gave to Article 21 and the right to liberty. Of course, it was right to point out that Article 21 is not qualified and thus requires to make accommodation for national security issues:

"At the same time, Article 21 has never been understood as operating in isolation from law. The constitutional promise is not that liberty will be unregulated, but that deprivations of liberty will not be arbitrary, unconscionable, or unfair. The expression “procedure established by law” reflects that balance. The UAPA, as a special statute enacted to address offences alleged to affect the security of the State and the stability of civic life, represents a legislative judgment as to the conditions under which bail may be granted at the pre-trial stage. Section 43D(5) of UAPA embodies the exercise of that judgment."

"There is a further constitutional aspect that warrants articulation. Article 21 protects individual liberty. It also, within the same guarantee of life, reflects the State’s obligation to protect the life and security of the community. In prosecutions alleging threats to public order and national security, the Court cannot be unmindful that both dimensions are engaged. The constitutional order is not served by an approach that treats liberty as the sole value and societal security as peripheral. Both must be accommodated through reasoned adjudication."

There was no discussion on how the individual liberty-national security conundrum is to be resolved. Gross inconvenience to other individuals cannot be taken as part of a utilitarian calculus if rights are to mean anything. Temporary disruption of supply chains cannot be treated as economic security at risk or else any protest would be said to be damaging national security:

"Section 15 of the Act defines what constitutes a “terrorist act” for the purposes of the statute. The definition is structured around two essential elements. First, the act must be done with intent to threaten, or be likely to threaten, the unity, integrity, security, including economic security, or sovereignty of India, or with intent to strike terror in the people or any section thereof. Second, the act must be of such a nature as to cause, or be likely to cause, the consequences enumerated in the provision.

87. The means by which such acts may be committed are not confined to the use of bombs, explosives, firearms, or other conventional weapons alone. Parliament has consciously employed the expression “by any other means of whatever nature”, which expression cannot be rendered otiose. The statutory emphasis is thus not solely on the instrumentality employed, but on the design, intent, and effect of the act. To construe Section 15 as limited only to conventional modes of violence would be to unduly narrow the provision, contrary to its plain language."

Thus, a "chakka jam" obstructing milk delivery, "conduct that destabilises civic life or societal functioning, even in the absence of immediate physical violence" are terrorist acts, virtually ruling out all familiar forms of democratic protest.

The high court, in Asif Tanha's case, too, was not oblivious to that concern but did not uncritically accept the claim of national security being imperilled:

"In our view therefore, notwithstanding the fact that the definition of ‘terrorist act’ in section 15 UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC. We remind ourselves of the principle laid down by the Constitution Bench of the Hon’ble Supreme Court in A.K. Roy (supra) where it said that ‘the requirement that crimes must be defined with an appropriate definitiveness is a fundamental concept of criminal law and must be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi vs. Union of India ; and that the underlying principle is that every person is entitled to be informed as to what the State commands or permits and the life and liberty of the person cannot be put on peril of an ambiguity. The Constitution Bench further says that to stand true to this principle what is expected is that the language of the law must contain adequate warning of the conduct which may fall within the proscribed area ‘when measured by common understanding’. 

Most importantly, the Constitution Bench observes, and it is imperative that we extract the words again:

“... These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language...”.

“...We must, however, utter a word of caution that since the concepts are not defined, undoubtedly because they are not capable of a precise definition, courts must strive to give to those concepts a narrower construction than what the literal words suggest ...”."

Ultimately, we need to ask ourselves what the nature of democracy that we seek is and how we see ourselves as a nation.

Maximum freedom is a matter of faith as much as it is a matter of strategic viability. People who believe harsh words can shake the foundations of our nation need to reexamine their understanding of our nation and the serious consequences of keeping strongly felt points of view under a cover rather than exposing them to the sunlight of disinfection. The UAPA probably needs a comprehensive look rather than collateral consideration in limited matters like bail.

Today, it was the passing matter of bail with considerable relief after six years behind bars but the sentiments expressed in the judgment will return to haunt the accused at the stage of their trial. Criminal culpability for crime is one thing, but culpability for conspiracy under UAPA is quite another. Once a conspiracy is established (here assumed), an individual is held responsible for any and every act of any other person involved in the conspiracy. Of course, the Supreme Court has endorsed degrees of participation to differentiate between co-conspirators who command and control as against others who play foot soldiers to implement the conspiracy. 

Our efforts to persuade the court to examine the very notion of conspiracy closely did not elicit a response. In a wide, public protest like CAA/NRC, there is spontaneous response, sometimes overlapping with what might be a conspiracy. A critical test might be what culpability can be at all pinned on individuals for specific offending acts as against virtual vicarious liability vide conspiracy. As a rule of prudence and convenience, conspiracy is established by circumstantial evidence since direct evidence is seldom available. 

Ronald Dworkin, writing after the 9/11 attack, held out for rights even in classical terrorism situations. We are presently concerned with an artificially expanded definition of terrorism and the inordinate delay in trial. His words apply a fortiori  to this situation:

"Rights would be worthless—and the idea of a right incomprehensible—unless respecting rights meant taking some risk. We can and must try to limit those risks, but some risk will remain. It may be that we would be marginally more secure if we decided to care nothing for the human rights of anyone else. That is true in domestic policy as well. We run a marginally increased risk of violent death at the hands of murderers every day by insisting on rights for accused criminals in order to keep faith with our own humanity. For the same reason we must run a marginally increased risk of terrorism as well. Of course we must sharpen our vigilance, but we must also discipline our fear. The government says that only our own safety matters.That is a counsel of shame: we are braver than that, and have more self-respect."

This case was an opportunity to take a fresh look at UAPA and read down the expansive definition. The top court, instead, fortified the legislative intent. This aspect will be a steep hill to climb for the accused in their trial.

Meanwhile, the ill-advised sloganeering at the Jawaharlal Nehru University – which was, at best, distasteful – was criticised by an eminent lawyer as part of the larger conspiracy. The implications of this approach is dangerous for democracy.

It is important that we distinguish between unbecoming conduct and conduct that needs to be proscribed. Hyperbole, per se, cannot be treated as something that can cause terror, as bombs and explosions do. Let us also not treat our nation as a fragile and vulnerable entity that can be rocked to the foundations by every offensive gesture of angry dissent. 

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