“No person shall be deprived of his life or personal liberty except according to a procedure established by law.” – Article 21 of the Constitution of India.
Article 21 of the Indian Constitution guarantees the protection of life and personal liberty, stating that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This fundamental right is interpreted expansively by the Indian judiciary to encompass a wide range of rights essential for a dignified life, including the right to privacy, health, clean environment, education, and livelihood. The Supreme Court of India has played a pivotal role in broadening the scope of Article 21 through various landmark judgments, ensuring that it is not merely a negative right against arbitrary state action but also a positive duty on the state to safeguard the well-being and dignity of individuals.
Despite the significant emphasis on the digitization and modernization of Despite the emphasis on digitization and modernization of court proceedings, a significant and unaddressed concern pertains to registry issues, encompassing challenges such as judge unavailability, cases scheduled on miscellaneous days, judge retirements, frequent adjournments based on arbitrary grounds, and constitution bench sessions. These issues pose a substantial impediment to the rights of the accused protected under Article 21, particularly in cases governed by the Unlawful Activities (Prevention) Act (UAPA). UAPA provisions allow an extension of custodial remand from the standard 15 days to 30 days, inclusive of police custody, and further empower the police to seek custody at any point during the investigation, not solely at the outset. Additionally, the UAPA permits a judge to authorize custody for up to 180 days during the investigation, in contrast to the 60/90 days stipulated by the Criminal Procedure Code (CrPC).
UAPA is Unlawful Activities (Prevention) Act, 1967 which includes vague, almost boundless, scope of the offenses of `Terrorist Act` and `Unlawful Activity` , where the act itself might matter far less compared to the intentions allegedly imputed to a person. The term unlawful activity can include attending meetings and protests, making speeches, giving loans, and of course, conspiring to do any of the above which has persistently been misused for illegal arrest of journalists and young activists.
And, these allegations can only be refuted at trial, in all probability being fought by the accused from behind bars, as the chances for securing bail
are exceedingly small as the UAPA provides the least procedural protection for the most serious allegations that can be made under Indian criminal law.
The cumulative impact of these factors, compounded by registry issues, significantly impedes the accused’s ability to present their case effectively. Illustratively, in the ongoing legal proceedings involving Umar Khalid, an Indian student activist and former research scholar at Jawaharlal Nehru University, facing charges under Sections 13, 16, 17, and 18 of the Unlawful Activities (Prevention) Act, 1967, Sections 25 and 27 of the Arms Act, 1959, and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 . The Delhi High Court interpreted his use of expressions like “inquilabli salam” and “krantikari istiqbal” in a speech as incitement to violence, stating that the term “revolution” does not always imply a non-violent transformation. The court also scrutinized the accused for using the term “jumla” against the Prime Minister, emphasizing the need for a discernible boundary in the realm of criticism.
Umar Khalid, incarcerated since September 2020, awaits trial under the Unlawful Activities (Prevention) Act, facing repeated adjournments due to registry-related issues.
May 18, 2022 – Supreme Court issued notice in the activist’s plea.
July 12, 2023 – Adjourned as Delhi police sought more time for a
counter-affidavit.
July 24, 2023 – Adjourned upon circulation of an adjournment letter by Khalid’s counsel.
August 9, 2023 – Adjourned after Justice PK Mishra’s recusal. August 18, 2023 – Listed on a miscellaneous day.
September 5, 2023 – Adjourned at the petitioner’s request. September 12, 2023 – Adjourned for the bench to review evidence. October 12, 2023 – Adjourned due to time constraints.
October 31, 2023 – Scheduled for hearing Khalid’s bail application with the writ petition.
January 10, 2024 – Adjourned based on a joint request from both sides. January 24 and January 31, 2024 – Bench unable to address the matter.
Hence, evidently Umar Khalid amongst many other activists, religious and ethnic minorities, personal liberty is put to question because of registry problems.
While interestingly in the Arrest of Pro government Republic TV’s Arnab Goswami case accused of abetment to suicide, the Supreme Court sat on a holiday to hear the cases since personal liberty was at stake and the bail was granted within 11 days of arrest.
The court further opined “Deprivation of liberty even for a single day is one day too many”.
In the matter involving G.N. Saibaba, an Indian scholar, writer, and human rights activist, as well as a former assistant professor at Delhi University, who, despite being wheelchair-bound and suffering from a 90% physical disability, faced accusations under the Unlawful Activities (Prevention) Act (UAPA). The session court convicted him to life imprisonment in 2017. However, after spending 8 years in jail, he was acquitted by the Nagpur bench of the Bombay High Court on October 14, 2022. On the same evening of the acquittal, a bench presided over by Justice DY Chandrachud declined an oral plea from the Solicitor General to stay the High Court judgment. In response, Justice Chandrachud stated, “We cannot stay the acquittal. We will keep it on Monday.” When the Solicitor General persisted in the plea, Justice Chandrachud remarked, “He has got an order of acquittal in his favor. Even if we take it up on Monday, and assuming we issue notice, we cannot stay the order.”
However, in the case of Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr. | CrlA(D) No. 42 of 2022 c/w CRM (M) No. 472 of 2023 a bench of Justices Atul Sreedharan and Mohan Lal held that –
“When the law laid down in Joginder Kumar and KA Najeeb are seen together, then an arrest under the provisions of the UAPA without any legal justification, would be an arbitrary exercise of executive discretion and the same would be violative of Article 14 of the Constitution. As the arrest was without legal justification, it would be violative of Article 21 of the constitution as well. With two fundamental rights of the accused under Part III of the Constitution being violated, the bar of the proviso to Section 43D (5) of the UAPA would be of no consequence in the light of the judgment of the Supreme Court in KA Najeeb’s Case and the accused would be entitled to bail.”
This offers a glimmer of hope that the court recognizes the principles of equality before the law (Article 14) and the safeguarding of personal liberty (Article 21), particularly in UAPA cases where incarceration is more prevalent than bail. To address political disparities in case handling, there is a need for an organized court registry that notifies in advance about the unavailability of judges on days designated for a constitution bench. The registry should consider miscellaneous days when scheduling cases, condemn adjournments by advocates, and implement measures to enhance fairness and procedural systematization.
CONCLUSION
The principle of liberty versus arbitrariness encapsulated in Article 21 of the Indian Constitution underscores a pivotal safeguard against state excesses, ensuring that life and personal liberty are inviolable except through due legal procedure. The judiciary’s expansive interpretation of this article has significantly broadened its protective scope. However, procedural deficiencies and inconsistent judicial practices, especially in cases under the Unlawful Activities (Prevention) Act (UAPA), starkly undermine this protection. The contrasting treatment of activists like Umar Khalid and G.N. Saibaba compared to figures like Arnab Goswami highlights a troubling disparity in judicial urgency and fairness. To rectify this, a more efficient and transparent court registry system is essential, ensuring timely and equitable justice. Reinforcing procedural safeguards and judicial impartiality is crucial to uphold the integrity of Article 21, thereby preventing arbitrary detentions and fostering a truly just legal system.
Authored by-
Shatakshi Mathur who’s an advocate in the Supreme Court of India & Riya Raj who’s an advocate with background in journalism.