In a significant judgment delivered on 13 August, the Bombay High Court held that "mere discussions or, for that matter, advocacy of a particular cause" would not fall within the dragnet of a terror offence, and could not, therefore, be grounds to deny a person bail under the Unlawful Activities (Prevention) Act (UAPA).
The judgment is significant because bail on merits of the case (rather than for procedural irregularities or prolonged delay) is extremely rare when the UAPA is invoked.
The bench of Justices SS Shinde and NJ Jamadar were dealing with an appeal by one Iqbal Ahmed Kabir Ahmed against an NIA special court's rejection of his bail application. Iqbal had been accused by the NIA of being in a conspiracy with the banned terror outfit ISIS (Islamic State in Iraq and Syria), and been arrested, back in 2016.
The NIA had brought a charge sheet against Iqbal and other accused in October 2016, but the trial had not begun yet.
In its charge sheet, the NIA's allegations against Iqbal mentioned that he was a co-conspirator, an oath form for ISIS was found at his house, and an electric switchboard, supposedly used to solder an IED (improvised explosive device), was found at his house.
THE NIA ALLEGATIONS
The allegations of conspiracy were based on statements by protected witnesses that Iqbal and the other accused would assemble at Mumtaz Nagar in Parbhani and "discuss various issues including atrocities on Muslims in the country and world, Hindu organizations, beef ban, incidents at Dadri, Muzaffarpur and Gujrat riots. (sic)"
The discussions allegedly included views that there had been atrocities against Islam, but witness statements differed on whether Iqbal took a fundamentalist view about this and the need to 'avenge' such atrocities.
One witness claimed that another accused had spoken of supposed atrocities against Muslims in Syria and acknowledged the leader of ISIS, Abu Bakr Baghdadi, as Caliph of the Muslims. According to the witness, Iqbal had seconded this view.
The oath form for ISIS (not in Iqbal's handwriting or signed by him) and the electric switchboard were recovered from Iqbal's house when the main accused in the case led the NIA to his house and pointed them out.
The NIA opposed grant of bail to the accused on the basis that the allegations against him were grave, and the material on record indicated that these allegations were prima facie true. As a result, the prohibition against grant of bail in Section 43D(5) of the UAPA applied, and the lower court judge had been right to deny Iqbal bail.
In this regard, the NIA strongly relied on the Supreme Court's 2019 Watali judgment, which had held that in bail hearings for UAPA offences, the courts were not supposed to go into the details of the evidence of the accused, but instead look at the totality of circumstances and see if the investigation agency's version was prima facie true.
IQBAL'S ARGUMENTS FOR BAIL
Iqbal's lawyer, senior advocate Mihir Desai, argued that the specific allegations against Iqbal were not enough to constitute offences under the UAPA and noted that he had not been charged under the Explosive Substances Act, like some of the other accused (despite the claims about the switchboard).
Desai noted that the Watali judgment did not take away the need for the courts to assess whether there were reasonable grounds to believe that the case against the accused was prima facie true – it is only if the judge is so satisfied that the prohibition against bail in Section 43D(5) applies.
In addition, since Iqbal had already been in jail for five years, and there was no real prospect of the trial being completed anytime soon, given the judge's commitments and the number of witnesses to be examined, he asserted that keeping Iqbal in jail would jeopardize his right to life and personal liberty.
WHAT THE BOMBAY HIGH COURT HELD
The judges found Desai's arguments to be persuasive, noting that the Supreme Court in its recent KA Najeeb judgment had observed that the interdict against bail in the UAPA is not as strict as in other laws like the MCOCA, TADA (now repealed) and NDPS Act.
With respect to the claims about the discussions that the accused allegedly had about Islam and ISIS, Justices Shinde and Jamadar agreed with Desai's arguments that the material against Iqbal was "in the realm of discussions".
The high court referred to the Supreme Court's landmark Shreya Singhal judgment in 2015, where it had explained when restrictions on the fundamental right to freedom of speech and expression can be imposed:
"Mere discussion and even advocacy of a particular cause, however unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in."
Since Iqbal had only been involved in discussions at most, those allegations were not enough to constitute terror offences.
As for the discovery of the oath form, the court observed that "mere possession of such oath form, without subscribing thereto, prima facie, does not appear to be an incriminating circumstance."
Finally, on the point of the electric switchboard which was allegedly used to solder an IED, the high court noted that there was nothing was actually recovered from Iqbal that supported the claims about an IED. Moreover, the NIA themselves had not brought any charges against Iqbal under the Explosive Substances Act.
The judges were therefore not convinced that the material the NIA had against Iqbal was, on the face of it, of sufficient quality to "sustain a reasonable belief that the accusation against the appellant is true." Therefore the bar against granting bail under Section 43D(5) could not be said to directly apply.
The Bombay High Court also accepted the contention that there was no likelihood of the case being decided in the near future, as the prosecution wanted to examine 150 witnesses, and the special NIA judge who has to hear the case has another 225 cases before him.
Although the interests of society have to be considered in terror cases, the judges held that if the trial is likely to take time to be completed and the accused has already spent a significant amount of time in jail (in Iqbal's case, half the maximum punishment for some of the offences he has been accused of), then the accused's right to life and personal liberty under Article 21 was negated.
As a result, Iqbal was "entitled to be released on bail on merits and on the ground of prolonged incarceration, which infringes his right to life and personal liberty."
The high court imposed several conditions on his bail, including a bond of Rs 1 lakh, sureties, requirements to report to the NIA on a regular basis, surrender of his passport, and to not communicate with the co-accused.
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