Right to Liberty: Why Delhi HC Order on UAPA Remand Extension Is Concerning

(Image altered by The Quint)

If arrested under the United Kingdom's Terrorism Act, 2000 (amended in 2006), a magistrate may permit your pre-charge detention for up to 14 days.

The above information emanates from a petition filed in the matter of Zeeshan Qamar vs Union of India. But this petition pertains to the Indian law, and this information about the UK is only for the purposes of comparative analysis.

Why though?

Because under the Unlawful Activities (Prevention) Act, which can be considered the Indian counterpart of the UK's Terrorism Act, a court may extend the period of detention to as many as 180 days. 166 days more than what's stated in the UK Act.

This provision stems from Section 43D(2) of the UAPA, which essentially says that "if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor...extend the said period up to one hundred and eighty days..."

And what must the public prosecutor's report indicate? The progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days.

Before granting the extension, the court is supposed to also consider the details of further investigation required, for which more time is sought.

But get this: The public prosecutor's report, which will go on to form the basis of the extended detention, need not be shared with the accused at the stage of extending the remand..

On 24 February, the Delhi High Court (in the Zeeshan Qamar case) held:

What this evidently means is that the accused may continue to argue against his detention, while the judge and prosecution share a document, the contents of which are secret to him.

In a critical analysis of this order, advocate Abhinav Sekhri wrote in his blog: "With due respect, this is deeply flawed at multiple levels."

Here's why:

As pointed out by Sekhri, "At the most fundamental level, if we assume that India is a constitutional republic recognising and guaranteeing the right to personal liberty...then while a person may not have any independent right to know the progress of an investigation, she certainly has a right to know about it if this investigation is the basis for keeping her in pre-trial custody when she is presumed to be innocent."

He notes that the matter would be different if the custody of the accused was independent of the merits of the investigation, but in this case it is based squarely on that.

"Pre-trial detention is the most obvious and glaring deprivation of personal liberty, and my right to contest it is meaningless if I do not know on what grounds am I being kept behind bars."

Advocate Abhinav Sekhri writes in his blog

Simply put, how do you rebut an argument that the other party is (metaphorically) whispering into the judge's ear? How can mere information about the extension suffice?

If we wrote a headline and left the rest of the article blank, would you know how to comprehend it? Would you be able to write a counter to it?

What Does This Remind Us Of?

This aspect of remand extension is oddly reminiscent of the ED’s power to carry out arrests under the Prevention of Money-Laundering Act, 2022, without mandatorily registering (and providing to the accused a copy of) an ECIR.

The apex court had, in July last year, held that recording an ECIR is not mandatory. However, experts had pointed out that this heavily restricts the remedies available to a person as getting bail is very difficult when only grounds of arrest are required to be provided. This is because those grounds may be very limited and entirely lacking in record of details of the offences alleged.

“Had an ECIR copy been made available, the accused could show to the court, considering his bail application, how prima facie no case is made out against such person,” Rajiv Bhatnagar and Ishan Khanna wrote in a piece for The Quint.

But note: Shortly before his retirement in August, the then-CJI NV Ramana had opened up this PMLA judgment for review in so far as aspects pertaining to the ECIR and reversal of burden of proof were concerned.

This was a pertinent development, given that power of review is exercised sparingly, and it clearly means that the CJI-led bench gleaned a pressing need to reconsider the significance of ECIR.

What About Right to Liberty, Natural Justice, and Article 14?

At the end of the day, regardless of whether it is the PMLA or UAPA or any other legislation, right to liberty cannot be sacrificed for the sake of extended-procedure and ceaseless investigation.

Audi alteram partem, is a natural justice principle. It simply means hear both sides. Additionally, Article 14 mandates equality before law.

However, what good is either if both sides do not get to argue on an equal plane? If one side has greater access to information? The state is anyway more powerful than the accused. Denial of information key to removal of their liberty, shifts the accused on to even weaker footing. And all this is before they are yet to be proven guilty.

The petition in the Zeeshan Qamar case notes that the UK government had once sought to extend the period of 'precharge detention' to up to ninety days. But this Bill was considered a travesty of human liberty and defeated in the Parliament.

Closer home, the petitioners’ counsel said that the phrase “not possible” (as in: if it is not possible to complete the investigation within the said period of ninety days...) has to be interpreted as “impossible”. This is because the prosecution must establish a higher threshold to obtain the extension of the period of investigation. Given how the accused has been in custody for ninety days already!

However, noting that terrorism related offences involve multiple accused and technological evidence and “hence it may take longer time for the investigating agency…,” the Delhi High Court rejected this argument as well.