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How Supreme Court contradicted its own judgement by not canceling bail granted to Devangana Kalita, Natasha Narwal accused in Delhi anti-Hindu riots

The Court is allowed to be discretionary, however, when the judicial process becomes whimsical and the Supreme Court is found contradicting its own judgements, especially in sensitive cases, one is pressed to ask which judgement, in the judiciary's infinite wisdom, should be considered precedence going forward.

In February 2020, the National Capital of India was rocked by widespread violence directed specifically against Hindus. Amidst chants of Allahu Akbar, Hindus were mercilessly slaughtered by a Muslim mob – the first murder being that of constable Ratan Lal. Thereafter, there were several Hindus who were slaughtered merely for being Hindus during the Delhi anti-Hindu Riots. Ankit Sharma was murdered, with his body dumped in the drain, by AAP councilor Tahir Hussain and his men. Tahir Hussain later mentioned in his disclosure statement that the aim was to “teach Kafirs a lesson”.

In September 2020, the Delhi police filed a chargesheet – 59/2020, which detailed the conspiracy that was hatched to burn Delhi and target Hindus. The charge sheet was an elaborate document spanning thousands of pages, with pictures, CDR records, witness statements, disclosure statements, and undeniable evidence. Regardless, the narrative that the Islamists and Leftists propagated was that the Delhi Riots were one directed against the Muslims – an “anti-Muslim pogrom”.

While the judiciary heard the cases about the Delhi anti-Hindu riots, some troubling judgements started coming to the fore. For example, the first conviction in the Delhi Riots was of a Hindu called Dinesh Yadav. Dinesh Yadav was convicted and handed a sentence of 5 years. In his case, there was no evidence of violence against Yadav. Applying Section 149, the court essentially said that since Yadav was in the vicinity of a mob, and because he is Hindu and the mob was Hindu too, he must have had the same intention and participated in the violence. Essentially, he was convicted simply because he was Hindu. In the raids during the investigation, there was no weapon, and no evidence found against Yadav. As unjust as Yadav’s conviction was, the lack of justice was evidenced by the fact that Muslim accused were given bail and even acquitted using a different interpretation of Section 149.

Just as Dinesh Yadav was convicted, almost simultaneously, those who were accused of murdering Dilbar Negi were awarded bail. The Delhi High Court granted bail to six persons named Mohd Tahir, Shahrukh, Mohd Faizal, Mohd Shoaib, Rashid, and Parvez in the Gokulpuri murder case related to the Delhi Riots of February 2020. The bail was granted by Justice Subramonium Prasad. The six were accused of vandalism and setting Anil Sweet Corner on fire “resulting in the death of 22-year-old Dilbar Negi”. In giving bail to these Muslim rioters, the court, in its wisdom, took exception to Section 149 being applied to every individual who was a part of the illegal assembly. 

The court said, “…clear finding needs to be given by the Court regarding the nature of unlawful common object. Furthermore, if any such finding is absent or if there is no overt act on behalf of the accused, the mere fact that the accused was present or armed would not be sufficient to prove a common object”. The court had further said, “We feel it highly unsafe to apply Section 149 IPC and make every one of them constructively liable. But so far as the above nine accused are concerned the prosecution version is consistent namely that they were armed with lethal weapons like swords and axes and attacked the deceased and others. This strong circumstance against them establishes their presence as well as their membership of the unlawful assembly. The learned counsel appearing for the State vehemently contended that the fact that the Muslims as a body came to the scene of occurrence would show that they were members of an unlawful assembly with the common object of committing various offenses including that of murder. Therefore all of them should be made constructively liable. But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance…” 

Essentially, the same Section 149 was interpreted in two different ways – one to convict Dinesh Yadav and one to give bail to the Muslim accused.

This is not the only instance of judicial double standards. There have been several instances when the court seems to have contradicted its judgements and the precedents set in the past. One such case is the bail granted to Devangana Kalita by the High Court and then upheld by the Supreme Court.

Delhi High Court granting bail to Devangana Kalita and Natasha Narwal – an example of judicial overreach

In June 2021, the Delhi High Court granted bail to Devangana Kalita of Pinjda Tod, Natasha Narwal of Pinjda Tod, and Asif Iqbal Tanha of SIO (Student Islamic Organisation). The three are accused in the larger conspiracy case of Delhi anti-Hindu riots. The Delhi Police had arrested the three far-left ‘activists’ in the case, and a case was registered under the Unlawful Activities (Prevention) Act for their role in the anti-Hindu riots that were unleashed on the streets of Delhi in February 2020.

While granting bail in 2021, the Delhi High Court exceeded its brief and made observations regarding the application of UAPA against the accused and the definition of terrorism itself.

“While the presence of the appellant for purposes of trial must be secured, there is no material or basis to suspect; nor is there any reasonable apprehension that the appellant will tamper with evidence or intimidate witnesses. As very pithily put by the Hon’ble Supreme Court in P. Chidambaram (supra) the gravity of the offense alleged would beget the length of sentence, as may be awarded upon conclusion of trial; but an assertion as to the gravity of the offense cannot thwart the grant of bail,” the court said while granting bail to Tanha. The bail orders for Narwal and Kalita too made similar observations.

The bail orders also questioned the veracity of the charges, an exercise which the court is not supposed to conduct at the stage of hearing bail.

“We are not persuaded to think that prima-facie the accusations made against Natasha Narwal make out any offense under sections 15, 17, and 18 of the UAPA; and therefore the stringent conditionalities contained in section 43D(5) of the UAPA would not apply,” the bail order in Narwal’s case says. “A closer reading of the allegations made against Natasha Narwal shows that no specific, particularised or definite act is attributed to her, apart from the admitted fact that she engaged herself in organizing anti-CAA and anti-NRC protests.”

While granting bail to the accused, the High Court had also observed, “We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy“.

It is at this stage itself that it becomes important to point out the wide difference between the bail order passed in 2021 and the observations of the sessions court only a few months before this order.

In January 2021, Additional Sessions Judge Amitabh Rawat said the allegations against Devangana Kalita prima facie seem to be true. The rejection of Devangana’s bail had come just a day after the Delhi court had rejected the bail plea of another accomplice Natasha Narwal. While rejecting the bail, the court had noted that intentionally blocking roads leading to disruption of essential services, attack on police personnel, and eventually culminating in riots falls within the scope of the terrorist act under the Unlawful Activities Prevention Act (UAPA). 

Firstly, with the same set of facts, one is pressed to understand how two courts in their infinite wisdom came up with two completely different interpretations of the law.

Special Leave Petition challenging HC bail order filed by the Delhi Police

After the High Court’s order granting bail and the observations the bench made in so far as the application of UAPA is concerned, the Delhi Police filed a Special Leave Petition in 24 hours. A Special Leave Petition is one filed against any judgement or decree or order of any High Court /tribunal in the territory of India. The procedure for filing a Special Leave Petition is set out in order XVI of the Supreme Court Rules 1966. According to the rules set forth, an SLP has to be filed within 90 days of the date of the order/decree passed by the High Court.

In this case, the Delhi Police filed the SLP against the High Court order granting bail to the Pinjra Tod accused and the observations it made thereof, within 24 hours of the order.

In the SLP, Delhi police say that the court has conducted a “mini-trial” in the case while granting bail to the accused and has “recorded perverse finding which is contrary to the record and the arguments made during the hearing of the case to arrive at a finding that case under Sections 15,17 and 18 of UAPA was prima facie not made out against the respondent”. 

The SLP further says that the High Court has assumed that this case is one of a simple protest, however, that is not in tune with the evidence on record. Saying that the court has applied “irrelevant considerations” while granting bail to the accused, the SLP says, “Hon’ble High Court completely lost sight of the evidence and statements which were produced before it and had arrived at the impugned judgement discarding the evidence which made out a sinister plot of mass-scale riots being hatched by the respondent along with other co-conspirators”.

In its SLP, the Delhi police said that this observation was beyond the purview of the bail petition and was ‘perverse and misdirected’ in nature. The Delhi Police says, “There was a cause and evidence of terrorist activity against the respondent; there was corroborative evidence, however, while applying the legislative mandate the Hon’ble High Court misdirected itself and gave ex-facie perverse findings to arrive a conclusion that no case of UAPA was made out”. 

In its scathing submission, the Delhi police say that the judicial scrutiny while granting bail to the accused was not to evaluate the evidence on the record but to “somehow establish” that the government was trying to suppress “dissent”. Delhi police say, “This in the respectful submission of the petitioner is without any foundation and appears to be based more on the social media narrative than the evidence gathered and elaborated in the chargesheet“. 

The Delhi police also countered vehemently the observation made by the High Court regarding the application of UAPA. The court had said “In our opinion, the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less…It was neither the intent nor purport of enacting UAPA that other offenses of the usual and ordinary kind, however grave, egregious, or heinous in their nature and extent, should also be covered by UAPA since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. To lean in favour of the constitutionality of the provisions of sections 15, 17, and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India‘”. 

Delhi police said that the above consideration is ‘irrelevant’ to grant bail to the accused in Delhi Riots and the above reasoning would also hamper investigations being carried out by other organizations including NIA.

The Supreme Court hearing and final dismissal of SLP by Delhi Police in Delhi anti-Hindu Riots case

On the 18th of June 2021, the Supreme Court issued a notice in the SLP and issued interim orders that the High Court observations while granting bail to the accused cannot be considered a precedence and should not be considered in the course of the trial. The court essentially said that the observations cannot be cited by other accused to demand bail as well. Appearing for the Delhi police, Solicitor General(SG) Tushar Mehta submitted that the entire UAPA had been turned on its head along with the Constitution by the high court, which, according to Mehta, had virtually acquitted the accused persons. Supreme Court observed the court found it troubling that the high court had, in a bail application, commented on the law that too when the validity of the UAPA was not under challenge.

Finally, on the 2nd of May, the Supreme Court dismissed the Special Leave Petition filed by the Delhi Police and upheld the bail granted to the three accused, reiterating that the observations by the High Court would not be considered precedence.

The Supreme Court in its order said, “The impugned order is an extremely elaborate order of bail interpreting various provisions of the UAPA Act. In our view, the only issue that is required to be examined in such matters is whether, in the factual scenario, an accused is entitled to bail or not. It is this argument that persuaded us while issuing notice on 18.06.2021 to observe that the impugned judgement cannot be treated as a precedent and may not be relied upon by any of the parties in any other proceedings. The idea was to protect the State against the use of the judgement on the enunciation of law qua interpretation of the provisions of the UAPA Act in a bail matter. The respondents have been on bail now for almost two years. We see no purpose in keeping these matters alive“.

The operative part of the Supreme Court order in the Delhi Riots case that we need to focus on for this article is the following:

The respondents have been on bail now for almost two years. We see no purpose in keeping these matters alive“.

The Kumer Singh judgement and what the Supreme Court had said about cancellation of bail after 2 years

In the Kumer Singh case in 2021, the Supreme Court addressed this very question of upholding bail merely because the accused had been out on bail for 2 years.

The Supreme Court had said, “Now so far as the submission on behalf of the accused that the accused are released on bail in the year 2019 and by now more than approximately 2 years have passed after they were released on bail and there are no allegations of misuse of liberty and/or having committed any breach of the conditions of the grant of bail and therefore this court may not set aside the order passed by the High Court is concerned, the aforesaid cannot be accepted”.

The following are the reasons cited by the court:

  1. No delay in filing of appeal against the bail granted by the High Court. The petition against the High Court bail order was filed within 2 months. The time limit for filing of SLP is 90 days.
  2. The SC in this case cites two previous SC orders – The case of Mahipal (Supra) and the case of Ramesh Bhavan (Supra). Citing these cases, SC says that the application for cancellation of bail stands on a different footing than challenging the order passed by the High Court/Appellate Court releasing the accused on bail.
  3. Citing precedence, the court says that in the Mahipal case, which cited the Neeru Yadav case, the court held that there are two kinds of bail cancellation cases. One is of the nature when the accused has contravened the conditions of the bail. But the other kind is where the order granting bail itself was unjustified, illegal, and perverse, the higher court can cancel the bail even if the accused has not violated the conditions of the bail.
  4. Citing the Mahipal Singh case, the court said, “Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record.”
  5. The Supreme Court in the Kumer Singh case further said that “The aforesaid principle of law has also been reiterated by this court in the recent decision in Parvez Noordin Lokhandwalla vs. the State of Maharashtra10”.
  6. In this case, the order of the SC said, “Impugned orders passed by the High Court granting bail to the respondents – accused do not pass the test laid down by this Court on grant of bail and exercising of powers of the appellate court laid down in various decisions through Mahipal (Supra), Neeru Yadav (Supra); Gulabrao Baburao Deokar (Supra) referred to hereinabove. Therefore, the impugned orders passed by the High Court deserve to be quashed and set aside”.
  7. In the Kumer Singh case, the Supreme Court thus ordered all the accused to surrender forthwith.

How the Supreme Court contradicted itself while upholding the bail of Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha, accused in Delhi anti-Hindu Riots

In the Kumer Singh case, the first observation of the Supreme Court was that there was no delay in filing the Special Leave Petition against the High Court order granting bail and that it was filed within 2 months (when the time limit is 90 days). In the case of Devangana, Natasha, and Asif, the Delhi Police filed the SLP within a day.

The second observation, and the most important perhaps, was that even if the accused has not violated conditions of bail, simply because it has been two years since the grant of a bail which was perverse and bad-in-law, to begin with, was granted, does not preclude the higher court (Supreme Court) from canceling the bail granted. In the Kumer Singh case, the Supreme Court ordered the accused to surrender forthwith even though they had been out on bail for 2 years and had not violated the conditions of the bail granted. The Supreme Court did so because it deemed the grant of bail perverse and bad in law.

In the case of Devangana Kalita, Natasha Narwal, and Asif Iqbal Tanha, the Supreme Court specifically said, “The respondents have been on bail now for almost two years. We see no purpose in keeping these matters alive“. This, was after the Supreme Court had explicitly stated that the High Court exceeded its brief in commenting on the merits of the case and the validity of the provisions of law. If the High Court had indeed exceeded its brief, then it would be par for the course for the Supreme Court to either cancel the bail and grant the SLP filed by the Delhi Police or throw the case back to the High Court asking them to hear the cause on the merits of the bail granted. However, the Supreme Court seems to have an exception in dismissing the SLP filed by the Delhi Police merely because the accused have been out on bail for the past 2 years and have supposedly not violated the terms of the bail granted.

It is pertinent to mention here that proving that the High Court order granting bail to the three accused was bad in law, is the fact that the High Court upheld the applicability of UAPA in the case of Umar Khalid. This is further proven by the fact that Umar Khalid’s counsel Kapil Sibal on 14th February withdrew the bail application from the Supreme Court, after seeking numerous adjournments.

The Court is allowed to be discretionary, however, when the judicial process becomes whimsical and the Supreme Court is found contradicting its own judgements, especially in a sensitive case like the Delhi Riots, one is pressed to ask which judgement, in the judiciary’s infinite wisdom, should be considered precedence going forward.

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