Chander Uday Singh, Indian Express, July 14, 2021

On March 6, 2021, 127 Indian Muslims charged with “terror” for attending a seminar at Surat were acquitted as there was no “cogent, reliable and satisfactory evidence” to show that they were members of a banned outfit.

Three months after the Students’ Islamic Movement of India (SIMI) was listed as a banned organisation under the Unlawful Activities (Prevention) Act 1967 (UAPA), these 127 were arrested on December 28, 2001 while attending a seminar organised by the All India Minority Education Board. They each suffered nine to 15 months in jail before getting bail, followed by weekly or fortnightly reporting to the police station at Surat for the next 18 years. Jobs and businesses were lost, lives destroyed, till finally even the draconian UAPA couldn’t keep this utterly bogus case alive.

An NIA court in Mumbai acquitted Mohammad Irfan Gaus and Ilyas Mohammad Akbar of UAPA terror charges on June 13, 2021, citing lack of evidence, after they had spent almost nine years in jail. Ilyas’s bail applications were rejected four times despite the same lack of evidence, and though the Bombay High Court granted Irfan bail in July 2019, the Supreme Court “stayed” that order without notice to him. Ironically, three others convicted for terrorism under the same chargesheet were sentenced to 10 years imprisonment; if they got remissions and time off for good behaviour, the guilty may have got out around the same time as the falsely charged.

On June 14, 2021, Mohammed Habeeb from Tripura was discharged by the NIA court at Bengaluru, finding that no charge could be framed absent any material to link him with a shooting incident at the Indian Institute of Science on December 28, 2005. Habeeb was incarcerated for four years under UAPA terror charges before the court realised that the sole “evidence” against him, an inadmissible statement of a co-accused, would not bring home the charge even if it were admissible.

Bashir Ahmed Baba from Kashmir spent 11 years in a Vadodara jail until, on June 19 this year, the special court held that UAPA charges were unfounded, “no evidence was found that he was in touch with terrorist elements”, and that the prosecution “relied on emotional arguments, and a person cannot be held guilty merely on its fear of anarchy”.

After holding him in custody for over a year and a half, the NIA was unable to get charges framed against Sibsagar MLA Akhil Gogoi, and by orders dated June 22 and July 1, 2021, two NIA courts ordered his discharge under the UAPA as also on charges of sedition.

I’m not going to mention the gut-wrenching case of Father Stan Swamy, as those facts are too well known to bear repetition. Nor will I regurgitate the data that reveal thousands of UAPA arrests without bail in recent years, a miserably low percentage of cases in which charges are framed, and a minuscule conviction rate, perhaps below 2 per cent.

That the UAPA 1967 is grossly abused goes without saying. That it is invoked disproportionately, indeed overwhelmingly, against minorities, indigenous peoples, tribals and, increasingly, those who stand up for them, is well known. Bail is notoriously hard to get once arrested under UAPA, which often prompts investigating agencies to slap on UAPA charges after a political dissenter or protester obtains bail under the regular criminal laws.

The judgments granting bail to student activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, Gogoi’s discharge orders, and, of course, the senseless arrest and inevitable custodial death of Father Stan, have led to strident calls for reform. The hope, it would appear, is that Parliament will suddenly become receptive, and actually entertain calls for repeal; or failing that, the judiciary will nip the thousands of flimsy UAPA cases in the bud, or even consider striking down this egregious law.

But will those who brazenly wield this brahmastra readily give it up?

The time has come for direct action, using the very Constitution that birthed UAPA, and the judiciary that enforces its senseless provisions. It’s time, in other words, for the empire to strike back. And the way to do this is by the victims suing for reparations, for restitution, for damages, or for compensation in whatever form or name.

Malicious prosecution was for long recognised in England as a tort, or civil wrong, which might result in an award of damages to the wrongly incarcerated victim. To succeed in a suit for damages, the plaintiff would need to prove that he was prosecuted by, or upon the complaint of, the defendant; that the proceedings terminated in his favour; that the prosecution was instituted without reasonable cause; and that it was motivated by malicious intent, and not merely the intention to carry the law into effect (Huntley v. Simpson (1857); Weston v. Beeman (1858); and Basebe v. Matthews (1868)). Closer home, the Judicial Committee of the Privy Council upheld similar suits in India too (Pandit Gaya Parshad v. Bhagat Singh (1907-08); and Balbhaddar Singh v. Badri Sah (1926)).

Interestingly, the Privy Council in Pandit Gaya Parshad approved the view of Cockburn, C J in Fitz John v. Mackinder (1861) that even a prosecution that was at the outset not malicious, either because it was commenced at the dictation of a judge or magistrate, or on the bona fide belief of the prosecutor, may nevertheless become malicious at a later stage if, the prosecutor having acquired knowledge of the innocence of the accused, perseveres with malice in the prosecution.

Time was, however, when a citizen wronged by tortious acts of government servants, could be thwarted by claims of sovereign immunity. In Kasturilal Ralia Ram Jain (1965) the Supreme Court, while bemoaning the fact that Indian lawmakers had not followed Britain’s lead in doing away with immunity under the Crown Proceedings Act, 1948, still went on to hold that the colonial legacy of crown immunity continued to apply in India.

Even this hurdle was removed by the Supreme Court when it evolved a constitutional answer to the plea of sovereign immunity. Following upon a series of baby steps in Khatri (1981), Veena Sethi (1982), Sant Bir (1982) and Rudul Sah (1983), the court held in Bhim Singh (1985) that when a person’s fundamental rights are infringed by a mischievous or malicious imprisonment, “the mischief or malice and the invasion may not be washed away or wished away by his being set free”, and that the constitutional courts have jurisdiction to compensate the victim. The jurisprudence of constitutional restitution was cemented in Nilabati Behera (1993), where the court clarified that the doctrine of sovereign immunity has no application in the constitutional scheme, and is no defence when the Supreme Court under Article 32 or a High Court under Article 226 decides to compensate a citizen for malicious loss of liberty. Leaving no room for ambiguity, D K Basu (1997) delved into similar constitutional law developments in Ireland and New Zealand, concluding in a 15-paragraph section that egregious violations of fundamental rights must result in compensation.

This theme was reiterated by the Supreme Court in Raghuvansh Dewanchand Bhasin (2012) and the Delhi High Court in Babloo Chauhan (2017), the latter leading to a strong recommendation for institutionalised compensation in the 277th Report of the Law Commission of India (2018). In Bilkis Yakub Rasool (2020), the Supreme Court directed the Gujarat government to pay Rs 50 lakh to compensate for the systematic cover-up by state police of a terrible mass-murder and gang rape perpetrated against Bilkis’s family during the 2002 riots.

It’s clear, then, that the stage is set for compensation claims. More importantly, such proceedings represent the only means of combating the culture of impunity that allows investigating agencies to knowingly load on palpably frivolous, even demonstrably false, charges of UAPA or sedition; that permits prosecutors to miraculously conjure up UAPA just when bail is granted for rioting or other routine offences; and that encourages top law officers to support the use of this draconian law even when they are fully aware that the cases they espouse are pure political vendetta.

(The writer is a Senior Advocate at the Supreme Court).

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