“… When you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire.”

When a court needs to rely upon metaphor instead of law to justify keeping an individual in prison, it is perhaps time for the justice system to take a long, hard look at itself. The order passed on Thursday by a District and Sessions Judge at Patiala House, New Delhi, denying bail to Safoora Zargar, an accused in what has colloquially come to be known as the “Delhi riots case”, is a deeply disturbing one.

It is disturbing because it takes the Unlawful Activities (Prevention) Act, a law so stringent that it precludes judges from granting bail if even a “prima facie” case is made out, and then stretches its provisions from one side, and the facts from the other, to ensure that the prima facie case is made out. In the process, what it effectively does – as we shall see – is criminalise the exercise of one set of constitutional rights (the freedom of speech and expression), and deny the exercise of another (personal liberty).

A close reading of the bail order reveals the following:

  1. Taking only the prosecution’s case (as this was a bail hearing), there is evidence that there existed a “conspiracy” to block a road, which the accused was involved in (the role of the accused in this “conspiracy” – even prima facie – is not spelt out, only some WhatsApp messages and disclosure statements are referred to).
  2. That “one cannot ignore the case of the prosecution that the accused persons have conspired to cause disruption of such an extent and such a magnitude that it would lead to disorderliness and disturbance of law and order at an unprecedented scale”. The order does not clarify what “unprecedented scale” means. It does not clarify whether the “unprecedented scale” refers to the same “conspiracy” referred to in (1), or whether it refers to something else; if the latter, the order does not clarify how the participation of the accused was deduced in that separate “conspiracy”; if the former, the order does not clarify the link between the “conspiracy” to block the road and its “unprecedented scale”, in a country where blocking roads happens every second day.
  3. That although there was no evidence of the accused committing any act or making any speech that instigated violence, nonetheless, as there existed a “conspiracy”, nonetheless “when you choose to play with embers you cannot blame the wind to have carried the spark a bit too far and spread the fire”, and that consequently, the “acts and inflammatory speeches of the co-conspirators are … admissible against the accused.” Now, it is unclear what the “acts” are, as the order never mentions them; it is also unclear what the “inflammatory speeches” are, as the order does not mention them either.

The lynchpin of the order, therefore, is a prima facie finding of a “conspiracy”, in specific terms, to “block a road.” This conspiracy rose to an “unprecedented level” – we are not told how. But the fact that the accused is also – prima facie – one of the conspirators (regardless of specifics, because this remains a prima facie appraisal), meant that ipso facto the “acts and inflammatory speeches” (we are not told which) were attributable to her.

It should be immediately clear that such an approach casts the net of criminality so wide, that just about anyone can be brought within its ambit. At the threshold level, it dispenses with the gravity requirement needed to trigger the Unlawful Activities (Prevention) Act, by failing conspicuously to specify how “blocking a road” reaches that threshold; at the more substantive level, upon a prima facie finding of a “conspiracy”, it dispenses with the need to show any causal connection between the accused and the events in question.

This would be problematic for acts (which the accused didn’t commit) as well, but when it comes to “inflammatory speeches” (which the accused didn’t give), it becomes even more problematic. This is because, recognising the problematic character of laws such as the Unlawful Activities (Prevention) Act which make the grant of bail effectively impossible, both the Supreme Court (in Arup Bhuyan, while examining the similarly-worded Terrorism and Disruptive Activities [Prevention] Act) and the Bombay High Court (in the Kabir Kala Manch cases) have narrowly interpreted the substantive offence, limiting it to cases involving the incitement of violence.

This is, indeed, nothing new: going back to the field of metaphors, as the Supreme Court held in S. Rangarajan, the proximity between speech and consequence needs to be like that of a “spark in a powder keg” for criminality to be imposed.

Now, the image of a “spark in a powder keg” suggests a relationship of immediacy and inevitability. The metaphor chosen by the Sessions Court on the other hand – that of playing with “embers” that the wind then “carries” is the exact opposite of a “spark in a powder keg”. The wind can carry embers as far, and in any direction, that the state or the judge might please; what this effectively does is do away with any causal requirement between speech-act and consequence. Such a doctrine, therefore, buries the fundamental right to free speech: if there is no need for a causal requirement between speech-act and consequence, anything can be criminalised, taking us directly into the territory of thought-crimes.

A reading of the order, therefore, makes it clear that insofar as both the law and the facts stood in favour of bail, the court got around the first barrier by replacing legal doctrine with a metaphor of its own invention, and vaulted the second barrier by replacing an accounting of the facts with a set of adjectives (“unprecedented scale” and “inflammatory speeches”) that spared it the necessity of an explanation. In this way, the law was stretched from one side, and the facts from the other, and they met in the middle to make out a prima facie UAPA case.

This prima facie case was then used to justify keeping a pregnant woman in an overcrowded prison in the middle of a nationwide pandemic. What that says about the state of the justice system is best left to the readers’ judgment.

This piece was first published on Indian Constitutional Law and Philosophy.