- 1 week ago
In this Special Report, legal experts debate a Supreme Court judgment concerning bail provisions under the Unlawful Activities (Prevention) Act (UAPA). The discussion focuses on the balance between the gravity of alleged offences and the constitutional right to a speedy trial under Article 21. One speaker argues that the judgment is 'fair' given the 'draconian' nature of the UAPA and the serious charges involving national sovereignty. Conversely, another expert criticizes the court's framing, stating that 'delays cannot be trumped' is an overstatement that ignores proportionality. The debate highlights the tension between statutory bail restrictions and personal liberty.
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NewsTranscript
00:00I want to cut across to our other guests joining me, Dushyant Dave, Senior Advocate, Supreme Court.
00:05Aman Lekhi, Senior Advocate, Supreme Court. Swapnil Kothari, Senior Lawyer, Supreme Court.
00:11Swapnil Kothari, I think, you know, you just heard Dr. Rashwini Kumar.
00:15We had the defense lawyer, former ASG before that.
00:18Why do you think this judgment, because you seem to believe that this judgment is a very fair judgment.
00:25What are your arguments?
00:28Good evening.
00:29I firmly believe that this judgment is a fair one.
00:32You cannot treat what Gurmeet Singh did of Dera Satcha Sauda with what Sharjee Limam and Omar Khan.
00:38But you're not treating that, Mr. Kothari.
00:40That's just, no, no, nobody, nobody's, okay, let's not compare the two.
00:43Let's just talk about this case and where Article 21 is concerned.
00:46Where his presumption of innocence comes into question, where prolonged incarceration without trial,
00:51without the framing of charges comes into question.
00:53Right.
00:53Does it somewhere down the line challenge what is the principle of criminal law,
00:58which is the presumption of innocence?
01:01Well, if you let me complete my point.
01:03I just wanted to, I'm doing it for the benefit of the viewers, as you would appreciate,
01:08so that they understand the distinction between what one is on parole, where he's a convict.
01:12I do not agree with so many paroles and furloughs granted to him any which way.
01:15But as far as coming to this case is concerned, Preeti, the point is that there is Article 21,
01:20but 43D5 of the UAPA is very clear that if there is a prima facie case and the prosecutorial evidence suggested that there was a prima facie case,
01:29so obviously the bail cannot be granted.
01:31Bail is the rule and jail is the exception.
01:32But as far as the UAPA is concerned, which is a draconian law, which is a draconian legislation,
01:37and precisely why we need to have such legislations, because when you try to divide the country,
01:42when you try to attack the sovereignty and the unity of this country,
01:45when you try to do rasta roko, when you try to see to it that the essentials are not being given or should not be given,
01:50when you try to create some sort of a disharmony between religions and all of those things,
01:56and if there is evidence pointing to that fact, then there is definitely a case that is made out before the court of the land,
02:03and the Supreme Court clearly pointed out that, yes, these two have to be treated, yes.
02:07And one of the points that you raised was a very valid point, Preeti, that if they are collectively tried,
02:11then how is it that the punishment is different?
02:13But obviously the criminal intention, and let me put a very simple example for the benefit of your viewers.
02:18Say, for example, if I hide a criminal, you know, potential murderer in my house,
02:22and I tell him that you wait here for an hour and you'll have your victim in the next one hour
02:25coming opposite, in the opposite building, and I hide him, he actually goes out after an hour and he murders.
02:31So my, I become an accessory before the fact, so my criminal intention is only to the extent of shielding.
02:36But he, the one who actually committed the murder, is, so the gravity of the offense is more.
02:41Okay, no, fair point. You're saying the gravity is more, but it needs to be still proven in the court of law,
02:46because they've been charged under a draconian which you yourself accept, law like the UAPA right now,
02:52even the investigation is not complete, the witnesses haven't been examined,
02:57and there is no framing of charges yet.
03:00I want to bring in Aman Lekhi and Dushyant Daveji into this conversation,
03:04but Aman Lekhi, quickly, what's your purview of the judgment today, sir?
03:09Well, I heard Mr. Raju, and whatever I've read of the judgment, I don't agree with the judgment.
03:14I don't in any way share Omar Khalid's political point of view.
03:19My issue here is with regard to the process, which I'm going to comment,
03:24and the framing by the Supreme Court of this particular order,
03:26because that is where I think the error comes in.
03:29One, I feel that the court has deferred more than what is necessary to the prosecution.
03:35Two, I think the court, to the extent it has used terms that delays cannot be trumped,
03:45is overstating a principle without defining its content,
03:49which has consequences in bail jurisprudence beyond this particular case.
03:55And three, the animating premise of this particular section,
04:00which is mechanically and ritually cited to deny bail,
04:02is missed altogether, and the Constitutional Court is duty-bound
04:06to examine that particular animating premise.
04:08I do not know whether that point was argued at all or not.
04:11But the animating premise, when you talk about Prama Fishi,
04:13the animating premise will take into account not just necessity,
04:18which Mr. Raju said, but proportionality and temporality.
04:21And these aspects have been ignored altogether by this particular judgment.
04:25Without going into the legality of it, I want to flag one point, Mr. Raju said.
04:29And just to clarify, you are saying that witnesses have to be examined for charge.
04:34Witnesses don't have to be examined for charge.
04:36Witnesses are examined and the charge sheet is filed.
04:38The charge is framed for the court.
04:39There is no investigation which is to be done after the charge sheet is filed.
04:43But that's it.
04:43That's not very relevant.
04:45What Mr. Raju said was there is a delay.
04:47Now, admittedly, there is a high court order for the delay.
04:48Now, this is again where the framing comes in.
04:50What stopped the Supreme Court to pass a simple order that, as far as the petitioners are concerned,
04:58they are not entitled to bail because of the persistent conduct of delay.
05:03Now, the Supreme Court does not say that.
05:06The very people whom Mr. Raju is saying is responsible for delay, wrong,
05:09as far as the process is concerned, which disentitles them for bail.
05:12I've been given the liberty to renew this one year from now,
05:17notwithstanding the fact that the star witnesses have not been examined.
05:20That means in one year from now, what Mr. Raju said,
05:23that this is going to be incentive for them that they will not delay.
05:26But this is not what the Supreme Court is saying.
05:27This means that Raju is reading of what the Supreme Court has said.
05:30Again, the framing which is wrong.
05:31That means notwithstanding the conduct continuing,
05:34hereafter, what has happened till now,
05:37even if the witnesses are not examined, they are entitled to bail.
05:39Now, my simple question is, if they are entitled to bail one year from now,
05:44notwithstanding the fact that the star witnesses have not been examined,
05:47what stops the court from granting the bail today?
05:50Now, this doesn't make sense to me.
05:51And that is why this entire framing of this particular order, in my opinion,
05:58is something which ignores that as the process is concerned,
06:03the process becomes punitive.
06:05And when the process becomes punitive,
06:07the person, as far as I have no sympathy,
06:10if the allegation against them is correct,
06:11no sympathy at all.
06:12It's a very serious allegation.
06:14But then, by reason of an order like this,
06:17you discredit the process,
06:19and in some way, make a martyr of the accused.
06:22So that is a system which, in fact,
06:24works with disadvantage of the country,
06:26whose interest, Mr. Raju is invoking,
06:28because the person who should be punished,
06:30what should be the outcome of an offence?
06:34The outcome of an offence is punishment.
06:37Punish the person for what is done on proven guilt,
06:40and not speculate about guilt,
06:44and discuss upon issues extraneous to the matter.
06:46And that is where I think we have utterly failed.
06:48And it's a spectacle which is unbecoming
06:52of the mature legal system that we have.
06:55Okay.
06:56I want to bring in Swapnil Kothari,
06:57because he seemed to be shaking his head vociferously
06:59and not agreeing with what you're saying.
07:00Mr. Kothari, go ahead, make your argument, sir.
07:03Well, you know,
07:04on a couple of points,
07:05I do agree with Mr. Lecky.
07:06But, you know,
07:07as far as the entire process being punitive is concerned,
07:10I beg to differ,
07:11because there is a certain law that has been laid down.
07:14It is a legislation.
07:15UAP is a draconian legislation.
07:17The presumption of innocence gets obliterated
07:18to a certain extent,
07:19as far as, you know,
07:20it's equivalent to the income tax law,
07:22or where I have to show
07:23that I have not evaded income tax,
07:25howsoever absurd it may be found,
07:27if I draw that comparison.
07:29But as far as the point is concerned,
07:30that the Supreme Court
07:32aired in following this process.
07:34The delay is there.
07:35The delay was at the instance of the people.
07:36And as Mr. Raju pointed out,
07:38that more often than not,
07:39when you,
07:40we are the advocates who push for delays
07:41and who push for adjournments,
07:42because we believe that if we were to argue this case
07:45at this point in time,
07:46perhaps it would not yield the favorable result.
07:48Now, one year from now,
07:50I do not know what is going to happen,
07:51but obviously the speedy trial has been recommended.
07:54If the trial goes through,
07:56then we'll have some judgment,
07:57hopefully soon,
07:58at some point in time.
07:59Now, if they were to apply for a bail a year hence,
08:01I don't know whether they'll get bail or not.
08:03But I, Preeti,
08:04one of the things that I want to point out
08:05for the benefit of the viewers,
08:07that when serious charges are levied
08:09against an individual of this nature,
08:12or two individuals,
08:13or seven individuals of this nature,
08:14and if a certain culpability
08:16to a certain extent
08:17is shown as a prima facie case,
08:20then it is a little risky
08:22to let the person off on bail.
08:24However stringent the bail conditions may be,
08:26he could trample with the witness,
08:27he could escape the country.
08:29You know, a lot of things could happen.
08:30You've had people who've gone to the,
08:32and then obviously,
08:32you know,
08:32you have the Fugitive Offenders Act.
08:34It doesn't come into the picture
08:35when it comes to this kind of a criminal legislation.
08:37You know,
08:38so that is where the Supreme Court must have thought
08:40that as far as these two individuals are concerned.
08:41And if there is a lengthy judgment,
08:43normally if you would notice at 10.30,
08:44if you start the judgment,
08:45the judgment's reading
08:46with a couple of relevant paragraphs
08:48is out in 5, 10 minutes,
08:49and we know the judgment.
08:50But the court went on and on
08:51for about 35 to 40 minutes
08:52because it realized the gravity of the situation.
08:54It realized that it has to come forth
08:56before the public
08:57and say these things.
08:58So that is where I believe
08:59that this judgment,
09:00all said and done,
09:01is an appropriate one.
09:03You know,
09:03we can argue on many things
09:04till the cows come home,
09:05but as far as,
09:06you know,
09:06the common man needs to understand
09:08that justice is not only done,
09:10but it is seen to be being done.
09:11But all right.
09:12But Mr. Kothari,
09:13you know,
09:13it's been five years
09:14and the cows still haven't come home.
09:15So that in itself
09:16is a blot in the judiciary
09:17that the trial hasn't begun.
09:18But all right.
09:19Okay,
09:19I want to,
09:20Mr. Leakey wants to come in.
09:22Go ahead,
09:22Mr. Leakey.
09:23I just want,
09:24you see,
09:25that's the two issues
09:26Mr. Kothari missed
09:27is one,
09:28he has not responded to the fact
09:29what is the animating premise
09:31and I dealt with
09:32not just necessity
09:33which he's constantly emphasizing
09:35but proportionality
09:36and temporality
09:37or dealing with temporality
09:38and proportionality comes in too
09:39which the Supreme Court
09:40has not touched too.
09:41Notwithstanding the fact
09:43that this particular provision
09:44is,
09:44as he says,
09:45draconian.
09:45Because it is draconian
09:47and we are before a court
09:48which in the overarching reality
09:51of Article 21,
09:52the interpretation
09:53has to be
09:54in some way
09:55consistent
09:55with the constitutional sentiment
09:57because the constitutional sentiment
09:59overrides
09:59the statutory enactment
10:01and in some way
10:02animates it.
10:03And this particular synthesis
10:04is absent altogether
10:06in this particular thing
10:07and that's one thing
10:08which Mr. Kothari mentioned
10:09was that
10:10as far as the provision
10:10is concerned
10:11you have to say
10:11okay if it's made out.
10:13Now when it is made out
10:14what is important
10:14is what the prosecution
10:15says is provisional
10:16it's not determinative.
10:18And the mistake
10:19the court has made
10:20is but treating it
10:21as conclusive
10:21because when it says
10:22it's,
10:23I'm not saying
10:24it's a guilty
10:24but I think
10:25there's a prima facie case
10:26in any case
10:26that this is structurally wrong.
10:29That's why I'm saying
10:29the problem
10:30with this judgment
10:31is not we may debate
10:32whatever we are.
10:33The problem with the judgment
10:34is the framing
10:34and the framing
10:36of the judgment
10:36is going to cause
10:37because in matters
10:38of movement like these
10:39these judgments
10:40have to be decisive
10:42to settle the law
10:44for the future
10:45because that is integral
10:46to a rule of law process
10:47which brings in predictability.
10:49So precision is important
10:50and I find doctrinally
10:52this is an imprecise judgment
10:54because doctrinally
10:55it's imprecise
10:56because in so far
10:57the terms are concerned
10:58the terms have not been
10:58elaborated the way
10:59they should
11:00with the fine distinction
11:01that they require
11:02particularly the impact
11:04it has made
11:05on something
11:05as sacrosanct as liberty
11:06my objection
11:07I'm not
11:08let me repeat again
11:09I said I'm not a votary
11:11of what Omar Khalid
11:13or the other
11:13or Sajjal Imam do
11:14in fact
11:14I can tell that
11:15we understand
11:15you don't have to
11:16draw that distinction
11:17fine
11:17we got that point
11:19in the word go
11:19but the point is
11:21the point is
11:21why I'm emphasizing that
11:23notwithstanding that
11:25because this is what
11:25notwithstanding that
11:27what is more important
11:28is the process
11:29because there can be
11:30a wrong accusation tomorrow
11:31and if the wrong accusation
11:33is grave
11:34you will not look at
11:35the accusation
11:36to deny bail
11:37you will apply the process
11:38to consider it
11:39and we have to look
11:40at the process
11:41and this is where
11:41I personally think
11:42there is a problem
11:43okay all right
11:44let's take final comments
11:45go ahead
11:45Mr. Kothari
11:46make your quick point
11:47and we'll take a quick point
11:48from Mr. Lekhi
11:49go ahead
11:49article 21
11:51no person shall be
11:52deprived of life
11:53or liberty
11:54except by a due procedure
11:55established by law
11:56Mr. Lekhi knows that
11:58and he must have argued
11:59a million number of cases
12:00he is saying that
12:01there is a constitutional morality
12:03that he is pointing at
12:04and the article 21
12:05seems to have been
12:06effaced a little bit
12:07because of the way
12:08this whole process
12:09has been considered
12:09and he is not
12:10you know obviously
12:11he is saying that
12:12bail possibly
12:13should not have been granted
12:14but the reasoning
12:14should have been different
12:15from what I understand
12:16from the way he is
12:17you know emphasizing
12:18on this point
12:19Treeti my short point is
12:20that article 21
12:21was considered
12:22the procedure was there
12:24there is a procedure
12:25established by law
12:26which is UAP Act
12:27what Mr. Lekhi is suggesting
12:28in the grand scheme
12:29of things
12:30on a different day
12:30maybe over a cup of tea
12:32I may agree with him
12:33and I may say that
12:34you know the
12:34the UAPA needs to be changed
12:36then remove 43 D5
12:38totally
12:38remove the words
12:39for prima facie
12:40at all
12:40from that consideration
12:41then we are
12:42then I am absolutely
12:43on par with the fact
12:44that yes this judgment
12:45is flawed
12:46but as long as
12:46the Supreme Court
12:48and Mr. Lekhi
12:48will agree with that
12:49and possibly any other
12:50lawyer would agree
12:51that the court
12:51the job of the court
12:52is to give a
12:53purposive interpretation
12:55as is to interpret
12:56the law
12:57and not to refashion
12:58the law
12:58as per its own
12:59whims and fancies
13:00so be it
13:01even if it is
13:02the Supreme Court
13:03if it is article 141
13:04binding on the law
13:05as the law of the land
13:06you need to follow the law
13:08if the law says
13:09X Y
13:09and you may or may not
13:10agree with it
13:11on a different day
13:12alright I want to get in
13:13Mr. Lekhi for a quick point
13:14I just want to give equal time
13:15to the both of you
13:16and then you are going to
13:16quickly get into a break
13:17go ahead Mr. Lekhi
13:18no nothing
13:19as far as I am concerned
13:20I made my point
13:20I mean
13:21my problem with the framing
13:23of the judgment
13:23because the framing is wrong
13:24I don't trust the outcome
13:26and as far as the outcome
13:27is concerned
13:27I personally feel
13:28the outcome should have
13:29actually been different
13:30had it been properly framed
13:31and at least
13:31where all of us are concerned
13:32I have got a greater idea
13:33as to what is it
13:34that we have to actually
13:35apply in the future
13:36in the future cases
13:37and this is this
13:38dubious nature
13:39which in some way
13:41is the most deleterious
13:42part of this particular order
13:44I personally feel
13:45there is more a sentiment
13:46over here
13:46than a reasoning
13:48and we are being
13:49we are being influenced
13:49more by the gravity
13:50than by the
13:51by the principle
13:53on which we have to
13:54decide criminal matters
13:55I appreciate both of you
13:57for joining us
13:58thank you for giving us
13:58your point of view
13:59thank you for giving us
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