Regular bail under the UAPA qua terror acts: Outshylocking Shylock?

The debate surrounding the Unlawful Activities Prevention Act, 1967 (UAPA) has been between security concerns and civil liberties. In this piece, let us focus on the regular bail provisions in the UAPA post the 2008 amendment in the Act and comparatively check if grant of bail has been made easy.

Backdrop of the introduction of UAPA

In 1963, a Committee on National Integration and Regionalism was formed recommending amendment of the Constitution and crafting a law putting reasonable restrictions on the freedom of speech and expression; right to assemble peaceably and without arms; and right to form associations or unions, in the interests of the sovereignty and integrity of India.

In 1964, the much more radical Communist Party of India (Marxist) separated from the CPI, following an ideological rift between China and the Soviet Union. The same year, then Prime Minister Lal Bahadur Shastri died under mysterious circumstances in Tashkent, Uzbekistan. In 1967, in Naxalbari, the foundation stone of the Maoist movement was laid down due to an uprising. Then Prime Minister Indira Gandhi tried to crush it with the military, but failed to curb the wave of inspiration it generated.

It was in this broad socio-political backdrop that the Congress enacted the UAPA in 1967, which was largely confined to secessionist organzations.

The Code of Criminal Procedure (CrPC) followed at that time was of 1898, and it was only in 1973 that a new CrPC was brought in. The bail provisions of CrPC applied to UAPA as well.

Amendments to UAPA

In the aftermath of Indira Gandhi’s assassination in 1984, after Operation Bluestar and the ensuing violence, the Terrorist and Disruptive Activities (Prevention) Act [TADA] was enacted in 1985. TADA had very rigid provisions for grant of bail in Section 20(8).

The Supreme Court, while upholding the constitutional validity of this provision, recognized the harshness of TADA in Kartar Singh v. State of Punjab by holding - “we have come across cases wherein the prosecution unjustifiably invokes the provisions of the TADA Act with an oblique motive of depriving the accused persons from getting bail and in some occasions when the courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of the TADA Act. This kind of invocation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police.”

In the aftermath of rising terrorist activities after the 9/11 attack in the USA and the attack on Parliament in India, the Prevention of Terrorism Act (POTA) was brought in in 2002.

It was gradually noticed that on one hand, UAPA didn't cover acts of terrorism, and on the other hand provisions of TADA and POTA were extremely harsh. By 2004, TADA and POTA were repealed, but to prevent a potential vacuum and to strike a balance, the offences related to terrorist activities (largely POTA) in these statutes were inserted into the UAPA.

While POTA was repealed, its stringent provisions were retained largely by UAPA, which now defined terrorism as a crime and granted the government power to declare and ban terrorist organisations. Therefore, the scope of UAPA got expanded and since then, it deals with two sets of criminal acts - unlawful activities and terrorist acts.

The journey from 2004-2008 is interesting. In 2004, Communist Party of India (Maoist) was formed. This organization, until it was banned in 2009 under UAPA, remained extremely active in a vast region flowing through at least 7 states and admittedly caused multiple instances of violence.

At the same time, a series of bomb blasts occurred at various parts of the country during 2004-2008. To name a few – Malegaon Bomb blasts, Samjhauta Express Bomb Blast, Ajmer Sharif dargah bomb blast, Mecca Masjid bomb blast, Mumbai suburban train blast and the 26/11 Mumbai Taj terrorist attack.

The UAPA, which was by now the primary legislative enactment for ‘terrorist activities’, was thus amended in 2008. A National Investigation Agency (NIA) was also created through the NIA Act, 2008.

Vide Section 12 of the UAPA Amendment Act, 2008, Sections 43D(5) – (7) were inserted in the Act which dealt with bail for terrorist acts (and not unlawful activity).

Provisions for bail

Section 436-439 of the CrPC lay down the provisions for bail for various offences. Section 4(2) CrPC gives power to special laws apart from the Indian Penal Code (IPC) to lay down separate procedures. Various statutes dealing with special set of crimes have thus crafted distinct provisions for bail and few of them have made grant of bail more stringent than CrPC.

The law surrounding grant of post-arrest bail is that the following factors have to be considered by the Court –

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and

(viii) danger of course of justice being thwarted by grant of bail. [State of U.P. through CBI Vs. Amarmani Tripathi (2005)].

Special statutes have additional restrictions apart from these eight conditions. The criteria for bail under UAPA therefore differs.

Let us see the text of bail provisions in TADA and POTA, which are the parent legislations of the post-amendment UAPA.

After the 2008 amendment, Section 43D(5) of UAPA, dealing with terrorist activities, stands today as –

“(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release :

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

Therefore, the regular bail provision under UAPA is distinct from other similar provisions. While other statute books require recording of an opinion by the court that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence, UAPA requires recording of an opinion by the court deciding bail that there are reasonable grounds for believing that the accusation against such person is “prima facie” true.

The expression “prima facie true” would mean that the materials/evidence collected by the investigating agency in reference to the accusation against the concerned accused in the FIR, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted.

Thus, the degree of satisfaction is lighter when the court has to opine that the accusation is “prima facie true”, as compared to the opinion of accused being “not guilty” of such offence, as required under other special enactments.

Therefore, the approach to regular bail under UAPA for terrorist acts is higher than offences under IPC, but comparatively compared to what was required under POTA and TADA. Under POTA and TADA, there was a virtual prohibition on bail for offences under these legislations.

While Section 20(8) TADA was upheld in Kartar Singh and Section 21(4) MCOCA in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr,, Section 45 PMLA was struck down recently by the Supreme Court in Nikesh Tarachand Shah v. Union of India for being manifestly arbitrary.

The Watali judgment

In at least 2 cases [here, and here], the Supreme Court granted bail in terror-related offences under UAPA without adhering to the norm in Section 43D(5). Interestingly, both these bails were granted after framing of charges and were decided by a Bench led by Justice Ranjan Gogoi.

The Supreme Court in April 2019, while deciding an appeal [NIA v Zahoor Ahmad Shah Watali] against grant of bail in UAPA case for terrorist activities held as follows:

“A priori, the exercise to be undertaken by the Court at this stage ­ of giving reasons for grant or non­ grant of bail ­ is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.

It is here where the Court outshylocked Shylock. Grant of bail is a discretion. But this discretion is to be used judiciously. It is also very well settled that having a power, exercise of such power, and conditions of exercise of such power are three different things. Grant/denial of bail in terrorism-related offences under UAPA is a power of the designated court. Exercise of such power is bound by Section 43D(5), which lays down a test of a lesser degree than the erstwhile TADA & POTA. The Supreme Court has, however, released the grant of bail from this comfort by asking the court to ‘merely’ record a finding on the basis of ‘broad probabilities regarding involvement in commission of stated offence or otherwise’. This does not work in favour of the accused.

The Court also held,

“For that, the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.”

This judgment, authored by Justice AM Khanwilkar, also distinguishes between a pre-charge bail and a post-charge bail under such offences. Had this law come in 2016, the two cases I mentioned above may not have been able to grant bail.

Conclusion

Shakespeare’s The Merchant of Venice describes how laws may have unjust results unless their interpretation is liberally applied. In the play set in Venice, characters Shylock and Antonio enter into an agreement whereby Shylock lends 3,000 ducats to him for Bassanio for a period of three months with a condition that if Antonio failed to pay, the penalty would be a pound of flesh (Shylock's demand). On non-payment, trial ensued. During trial, Bassanio first offered 6,000 ducats and later 9,000 ducats to Shylock, but he refused (Shylock’s refusal).

Portia uses a legal principle - expressio unius est exclusio alterius (one expressed thing excludes another) - and thus, Shylock must cut precisely one pound of flesh, no more or no less and without shedding any drop of blood, an obvious impossibility.

The UAPA, clear from the name, was supposed to be a preventive legislation. The nomenclature also abundantly makes it clear that it was framed for ‘unlawful activities’. If adding ‘terrorist activities’ to it was Shylock’s demand, stringent bail provision was Shylock’s refusal. Through the judgment in Watali’s case, the Supreme Court, by laying down ‘broad probabilities’ and ‘totality of materials’ tests, has jumped steps ahead and outshylocked Shylock.

Due to compelling circumstances, the UAPA become what it was never meant to be. It is high time the legislative intent of comparatively easy grant of bail be restored to UAPA and civil liberties be adhered to. The number of convictions under these laws have anyhow been minimal. It is time to re-think.

Namit Saxena is an Advocate practicing in Delhi. @namitsaxena2007