–Sanjana Gupta & Aditi Roy
Bail can be termed as the procurement of a person’s release from legal custody through an undertaking that one shall remain present at the designated time and place and submit himself to the Court. Bail can be denied only in exceptional circumstances and has to be given as a matter of right. However, the provisions pertaining to bail in India are not codified in a single legislation [A1] and are spread across numerous ‘special laws.’ One such special law is the Unlawful Activities (Prevention) Act, which was passed in the year 1967 as a means to check terrorism and unlawful activities that can pose a threat to the sovereignty of the nation.
The bail provisions under S.43D (5) of the UAPA [A2] has been classified as a ‘paper tiger’ as they encroach upon the constitutional rights of the offenders by keeping the threshold for denying the bail extremely low. [A3] The provisions provide a virtual ban on securing bails.[A4]
This article deals primarily discusses that the presumptuous section of §43D (5) has been misused and the section fails to strike a balance between individual liberty and public safety. Part II of the paper critically analyzes the bail provision under UAPA. Part III deals with how special anti-terror laws endorse procedural violations. In Part V, I discuss the issues plaguing §43D (5). In Part VI, certain recommendations are made that would help the Courts approach the issue of personal liberty while granting bail even under special laws. Finally, concluding remarks are made.
§43D (5) of the Unlawful Activities (Prevention) Act, 1967 [A5] provides that any person accused of an offence under Chapters IV and VI can be denied bail unless an opportunity has been afforded to the Public Prosecutor of being heard. Additionally, the proviso mandates that bail could be denied if the evidence from the case diary suggests that the accusations are prima facie true.
In National Investigating Agency v. Zahoor Ahmad Shah Watali, the Court dealt with the meaning of prima facie. The Supreme Court opined that the threshold of satisfaction, to establish a “prima facie” true accusation, is lighter when compared to other enactments and that, “an elaborate examination or dissection of evidence” is not to be undertaken. Similarly, in Jayanta Kumar Ghosh and Ors. v. State of Assam, the High Court adjudicated that when the accusations against an accused are “inherently or wholly unbelievable”, a prima facie case hasn’t been made out.
In State v. Safoora Zargar, bail was refused to a pregnant woman for her alleged inflammatory speech that resulted in riots in New Delhi. The manifest misapplication of §43D (5) resulted in an arbitrary detention of the scholar. The charges against the accused were based on Whatsapp messages that were considered within the ambit of “unlawful activities” as per §2 (o)[A6] of the Act.
In the present case, bail was denied as it was alleged that Zargar was an accomplice in a conspiracy to block roads leading to a gross disruption of activities. Ironically, for a case to be made out under “inflammatory speeches,[A7] ” there has to be a direct causal link between the speech and violence like a “spark in a powder keg[A8] .”
Subsequently, the sessions court misapplied the provision as the accused was charged under Section III of the Act while §43D (5) is only applicable in cases wherein an accused is charged under Sections IV or VI of the Act. Later, the Delhi High Court[A9] granted the accused bail on considerations of humanitarian grounds rather than considering the misapplication by the Sessions Court.
In contrast to these decisions, the Court in Mala Manch incident, granted bail to the three accused in complete ignorance of the presence of §43D (5) in the chargesheet. Furthermore, the Courts have also not shied away from granting bail even in the presence of §43D (5) as they would have granted under §437 of CrPC.[A10]
Therefore, the judgements delivered by the Courts have remained largely inconsistent and there is no effective clarity on the jurisprudence of bail under UAPA. [A11] For a better understanding of the grave inconsistencies with which the UAPA is applied, it is essential that we can focus on similar anti-terror special laws and the routine procedural violations that occur during their enactment.
Owing to several routine procedural violations in several anti-terror special legislations, it becomes pertinent to delve into the rationale behind their existence. They are commonly justified on the grounds that terrorism as a criminal offense has to be dealt under special laws as the general statute not equipped to deal with them. Ironically, the National Human Rights Commission, had earlier, unanimously opined that there was no requirement of a special anti-terror legislation and the general criminal laws, with some amendments, would be well equipped to deal with the menace of terrorism. Commenting on the reversal of burden of proof under TADA, the Commission held that such provisions were “contrary to a basic principle of criminal jurisprudence”.[A12]
The justification elucidated by the Supreme Court in Kartar Singh and PUCL, denying a scrutiny of the disputed provisions of anti-terror legislations, is premised on the ‘unique necessity’ of such laws. The reasoning behind the same is based on circular logic that accepts the hypothesis that terrorism is a special offence and therefore cannot be dealt under general criminal legislations.
In Nikesh Tarachand Shah v. Union of India, the validity of bail provisions under §45 of PMLA was challenged. The Supreme Court held that since the application of the section extended to other offences thereby causing a violation of Art. 21 and Art. 14 of the Indian Constitution[A13] , the section was unconstitutional. However, similar provisions under §49 of POTA were held to be constitutional.
Therefore, there is a lack of effective scrutiny by the Supreme Court while considering provisions in anti-terror law. The Court has restrained itself to examining whether there is compliance with the due process without justifying the need for special laws to treat terror offences. The Supreme Court has often adopted a “minimalistic approach” when it comes to reviewing anti-terror legislations. Furthermore, the Court is of the view that its role is to maintain a “delicate balance” between the protection of civil liberties and national security.[A14] It is essential to discuss that similar procedural violations are perpetrated by the UAPA
The UAPA provisions violate Fundamental Rights as the accused is deprived of the basic principle, “Innocent until proven guilty.” This entails that the accused must prove that he is not guilty of the alleged offence. Moreover, this basic principle is directly violated in instances where the accused is put behind bars prior to his conviction.
On principle, the courts must draw a balance between the rights of the accused and the interests of the society at large while dealing with bail applications. However, §43D (5) does not provide an effective balance of these rights. It is centred around the presumption of guilt of the accused rather than addressing the State’s interests during bail application.
The proviso to §43D (5) establishes a ‘prima facie’ burden which creates an “irrefutable presumption” favouring the State. The Courts have often interpreted this provision to imply that the prosecution’s burden is discharged. This creates a virtual ban on bail as the same would be denied unless the evidence is self-contradictory. Ironically, the Law Commission of India opined that the bail provisions under the UAPA are more flexible in comparison to previous anti-terror legislations, since its precursors had more stringent provisions.
Additionally, as discussed in the earlier section, the Court’s often fail in their duty to scrutinise the evidence properly[A15] . Furthermore, while interpreting the section, the Courts [A16] have explicitly stated that that threshold to prove “prima facie” guilt is very low. Moreover, a thorough examination of the evidence at the stage of granting bail is not necessary. The Supreme Court in Shaheen Welfare Association v. UOI opined that, due to the restrictive clauses of §43D (5), many innocent individuals must have been cast behind bars leading to a ghastly violation of Art. 21 of the Constitution. In light of the foregoing, it has been argued that the UAPA’s bail provisions are unrelenting and inhumane, and calls for immediate reforms.
Considerations regarding State’s interest to stifle dissent and misuse the ghastly provisions are often not taken into account and the provisions of UAPA have been infamously used by the State against various activists and students. Hence, the contested provision is superfluous. Furthermore, the colossal scope of judicial discretion in interpreting “prima facie” burden needs to be subjected to some sort of judicial checks and balances.
It is the need of the hour to reconstruct the provisions pertaining to bail under the UAPA if not eliminate the Act completely as over 67% of the alleged offenders [A17] under the Act are later acquitted[A18] from the enactment of the Act. The provisions of the Act need to be overhauled so as to give them a narrow meaning, thereby preventing the misuse of the Act by the Governmental Agencies.
The recommendation made entails that,regular bails must be granted to those individuals who are charge sheeted under the UAPA. This is in line with the Delhi HC’s judgement granting bail to three individuals who were the offenders in the Delhi Riots Case. The well-reasoned judgement of the Delhi High Court is based on the distinction between “the state of normalcy” and “the state of exception. This would ensure that the vague and loosely worded provisions of the UAPA do not remain at the State’s disposal and are not commonly invoked as substitutes for the general penal provisions.
The Delhi High Court’s order notes that the legislative intent behind enacting the UAPA were not to bring usual offences affecting public disorder within the ambit of the UAPA and that a close and effective scrutiny of evidence has to be undertaken to identify gaps which break the chain of causation and thereby fail to establish a “prima facie” case. Moreover, in a recent decision the Supreme Court recognized adjudicated that the default bail is a fundamental right and not a mere statutory right. In yet another decision, the Court held that procedural rigors could be reduced on account of unnecessary delay.
These recent trends observed in the judgements of both the Delhi High Court and the Supreme Court could serve as an effective guideline for the judiciary to balance the twin considerations of personal liberty and interests of the State.
The Indian Jurisprudence on bail laws is thoroughly fragmented and inconsistent as the disparate rulings add to the prevailing uncertainty. The current bail provision under the UAPA is ‘paper tiger’ as the wide provisions can hold people without any charge. These provisions have been consistently misused by the State and frequently misapplied by the Courts. As established previously, the requirement of an effective consideration of the public liberties is dispensed with under the garb of protecting the interests of the State. Therefore, the requirement of evidence establishing a mere prima facie evidence as mandated under §43D (5) shifts the balance in State’s favor.
Thus, it is recommended that the adoption of the principles enshrined by both the Courts order would provide a just balance between the interplay of various considerations. Furthermore, it would serve as an effective guideline to reign in the existing inconsistency and arbitrariness in the bail jurisprudence while preventing gross violations of the alleged offender’s rights.
[ The authors are second-year law students pursuing BA. LLB (Hons.) at WBNUJS, Kolkata. ]