In 2020, while dismantling the constitutional guarantees of personal liberty, our courts gave us some memorable lines as background score to accompany the clanking of prison bars. The prize for the best essay was finally split between the J&K high court’s invocation of the Greek tyrant Menelaus and the Patiala House district and sessions judge’s sanctimonious “if you play with embers…” Four days into 2021, however, a Kerala high court division bench of Hariprasad and Haripal J.J. have already beaten all comers for this year, with something truly extraordinary. In paragraph 39 of their judgment setting aside a well-reasoned bail order of the National Investigation Agency court, these judges note that:
“We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon’ble Judges who authored the judgments which is unwholesome.”
First of all, what is an “order…prepared as if it is a court of record”? We do not know, but if the order served up to us by Hariprasad and Haripal J.J. is supposed to be an example of what “courts of record” do, then perhaps the learned NIA judge would be well-served by taking this gratuitous piece of advice to heart.
But it is the second line that is truly mind-boggling. Hariprasad and Haripal J.J. appear to believe that Supreme Court judges are not public servants who have sworn an oath to uphold the constitution, but gods on high whose “names” lesser mortals like a mere NIA judge (and presumably, by extension, the rest of us who do not sit on “courts of record”) ought not to take. After all, who knows what would happen if all of us started taking the names of Supreme Court judges in vain? Plagues, perhaps, or frogs from the sky, or maybe we’d just vanish in a cloud of contempt-tinged smoke. All very unwholesome occurrences.
But jokes apart, this needs to be called out for what it is: two high court judges browbeating and bullying a subordinate judge for daring to do his job, while signalling a servile fealty to the Supreme Court. And that is how the worst of hierarchies work: admonishment to those below, obsequiousness to those above.
It would have been bad enough if paragraph 39 was the worst of it, but unfortunately, it does not even begin to scratch the surface. The NIA court had granted bail to two men accused of offences under the Unlawful Activities (Prevention) Act (UAPA). The case of the prosecution was that these men had been found in possession of materials that promoted Maoist ideology and advocated the “liberation” of Jammu and Kashmir. What is notable about this case is that whereas in other UAPA cases, the prosecution makes at least a token attempt to link the accused with actual terrorist activities, or tangible associations with a banned organisation (for example, collecting funds or collecting arms), here the prosecution’s case was actually only limited to the possession of Maoist literature and sloganeering, apart from accusations of “attending meetings” and preparing “cloth banners”.
The Supreme Court – the names of whose judges we cannot take – has laid down clear jurisprudence on this issue. “Membership” of a banned organisation – according to the Supreme Court – has to be understood as being limited to “active membership”, i.e., incitement to violence. If passive membership was also held to be a part of the UAPA, then its sections would be unconstitutionally broad, and would have to be struck down. Consequently, these judges – who shall remain nameless – have made clear that even at the prima facie stage – and notwithstanding Section 43(D)(5)’s high threshold for granting bail – it must at the very least be shown that if the prosecution’s case was taken to be true, it would have to meet the threshold for active membership.
It is obvious that in the present case, taking the prosecution’s own case at face value (as laid down in the Watali judgment), the offence of active membership had not been made out. However, in exhorting the learned NIA judge not to dare name Supreme Court judges, Hariprasad and Haripal J.J. seemed to have simultaneously exempted themselves from studying Supreme Court judgments. While there are copious references to Watali on the issue of bail under the UAPA, Hariprasad and Haripal J.J. seemed either oblivious of Supreme Court judgments on the scope of the UAPA offences, or – for reasons best known to themselves – decided that it is optional to engage with Supreme Court judgments that go in favour of individual liberty.
Not only are Hariprasad and Haripal J.J. wrong on law, but their judgment also contains multiple leaps of logic. In para 23, they go from “the accused were in possession of CPI(Maoist) literature” to “the accused are protagonists” of the CPI(Maoist) – not so much a logical leap as a running long-jump over the Grand Canyon. In my house, I have a lot of literature written by winners of the Hugo Awards, and I do wish that ipso facto made me a winner of a Hugo Award. Unfortunately, that is not how the world works, something that most people are aware of (but not, it would appear, Hariprasad and Haripal J.J.).
Hariprasad and Haripal J.J. then go on to cite evidence that the accused had a “rapport” with persons having “close links” with the banned organisation: note, not that the accused were part of a banned organisation, not that they had close links with a banned organisation, but that they had a “rapport” with “persons who had close links” with the banned organisation. Not only are we at opposite ends from the Supreme Court’s requirement of “active membership”, but we are at opposite ends from any respectable concept of causation in criminal law. Similarly, Hariprasad and Haripal J.J. go on to refer to “ocular evidence” that the accused were attending “meetings” of the banned organisation – failing to recognise, yet again, the distinction between “active membership” and attendance at meetings.
If this were not disturbing enough, we now come to something profoundly alarming. In paragraph 26, Hariprasad and Haripal J.J. state:
“True, the prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint.”
In short: you are guilty if there is evidence against you. But you are also guilty if there is no evidence against you, because that only shows how good you are at operating “surreptitiously”. The state always wins. At this stage we are in Stalinist show-trial territory. Hariprasad and Haripal J.J. then go into how the accused made “photocopies” (!) of documents, how they perceived the state to be their “foes”, and how the documents referred to overt and covert comrades. Things then pass into surreal territory, where Hariprasad and Haripal J.J. observe that one of the documents mentioned the dangers of phone hacking, that the accused did not have their phones with them when they were arrested, and that this shows that they were “following a diktat”. If Hariprasad and Haripal J.J. had spent their free time studying judgments of the Supreme Court (whose judges, I must remind you, we cannot name) instead of reading The Day of the Jackal, this “court of record” may have produced a better judgment than something reading like Frederick Forsyth’s fevered dream.
Hariprasad and Haripal J.J. then put the cherry on top of this concoction by stating that the accused were in possession of documents involving J&K that bear “the seeds of a secessionist ideology”. Much like the “if you play with embers” line in Safoora Zargar’s bail order and the J&K high court’s invocation of King Menelaus, this is that part of the judgment where you can tell the court is hiding behind metaphor and imagery because, deep down, the judges know that the law requires something different. What on earth does “seeds of a secessionist ideology” mean? Which law defines “seeds…of an ideology”, secessionist or otherwise? We do not know, and we cannot know, because the courts have long sacrificed rigorous legal reasoning at the altar of the crudest nationalist rhetoric.
Hariprasad and Haripal J.J. then end with the ringing declamation of the line that has been music to the ears of tyrants and authoritarians at all times and places. “Individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail.”
Ein volk, ein reich. Indeed.
These days, the “courts of record” (with a few honourable exceptions) appear to be in a race to become more pro-executive than the executive. Hariprasad and Haripal J.J.’s effort has set the tone for 2021 in that respect, and will probably take some beating. But last year was full of surprises, and no doubt, soon enough, we will have a judgment where a judge will preside over a hearing but whose name will mysteriously vanish from the record, so that people actually can’t take his name.
Oh, wait. That already happened.
Gautam Bhatia is a lawyer and legal scholar. His book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution, was published by Oxford University Press in 2016. His latest book is The Transformative Constitution: A Radical Biography in Nine Acts (HarperCollins, 2019). This article first appeared on the author’s website, Indian Constitutional Law and Philosophy.