Conspiracy Allegation Used To Fill Gaps, Speeches Given A Criminal Colour : Gautam Bhatia On Umar Khalid, Jyoti Jagtap Bail Orders

People's Union for Civil Liberties (PUCL) hosted an online event to discuss three recent judgements pertaining to civil liberties. The judgements included Bombay High Court's denial of bail to Jyoti Jagtap (Jyoti Jagtap v. National Investigating Agency and Anr.), Supreme Court's stay on the acquittal of Dr G.N. Saibaba (State of Maharashtra v. Mahesh Kariman Tirki And Ors.) and Delhi High Court's denial of bail to Umar Khalid (Umar Khalid v. State of NCT of Delhi).

The discussion was commenced by constitutional law scholar Advocate Gautam Bhatia who highlighted how the Court took innocuous statements to have a "sinister meaning" simply because a particular case pertained to an alleged conspiracy. He stated that conspiracy was used to give speeches a criminal colour.

He stated that while it was often said that the Trial Courts and the High courts, when dealing with UAPA, had their hand tied owing to the text of the UAPA along with the directions issued in the judgement in NIA v. Zahoor Ahmad Shah Watali (2020), he believed that there was space for the courts to work around to grant bail. For context, the Supreme Court judgment in NIA v. Zahoor Ahmad Shah Watali ruled that it is not permissible for courts to even engage in a detailed analysis of prosecution case while considering bail under UAPA.

Adv Bhatia stated that substantive clauses of UAPA had to be given a narrow interpretation. Here, he gave an example of Justice Bhambhani's judgement in Asif Iqbal Tanha v State of NCT of Delhi.  He added, that in Jyoti Jagtap's case, it was clear that there was no actual specific allegation that she was involved in violence or that any speech she gave incited violence. he said–

"What comes out is that, over years she was seen in meetings in which CPI(Maoist) leaders were there. There exist gaps. These are filled by the Elgar Parishad slogans, ridiculing 'Ache Din', ridiculing prime minister- these were taken to be a part of a larger sinister conspiracy. Similarly, in Umar Khalid case, his membership to various WhatsApp groups is taken into account by the court. The gaps between his participation in WhatsApp groups and his participation in violence is filled by stipulation the HC makes. Court has to take innocuous statements and say that because there this is a larger conspiracy, these statements have a sinister meaning. Conspiracy is used to give speeches a criminal colour. The foundation is non- existent. You use all these parts to buttress each other. Vague allegations are made particular through the use of inferences."

Adv Bhatia stated that this revealed that courts had a choice in each bail order and it was up to the lawyers to push for a more pro-freedom interpretation. He also commented on the Dr Saibaba case and stated that it had become so that finding on procedure had somehow less sanctity than a finding on merit. This, as per Adv Bhatia, has led to devaluation of procedure.

"You want an independent authority to review the material. If that hasn't happened, that should go to the root. The question is how do we, as legal writers, lawyers, citizens somehow bring back the sanctity of procedure", he said.