The duality of constitutional and social morality: Bail under the UAPA

“Justice is what the judges ate for breakfast.”

This legal realist expression stands true for the Indian legal domain upon a critical analysis of recent pronouncements with regard to bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

This article seeks to argue that the Indian judiciary must not become susceptible to obsolete narratives surrounding bail under stringent criminal laws to ensure that inalienable rights of the accused are protected for the continued sustenance of the Indian democracy.

On August 13, 2024, a Bench of the Supreme Court comprising Justices Abhay S Oka and AG Masih upheld the foundational aspect of ‘justice’ within our democratic ethos in the case of Jalaluddin Khan v. Union of India. The bail order is of seminal importance for two reasons. Firstly, a zealous dedication towards upholding constitutional morality has been reflected by the judiciary. Secondly, such reflection prioritising liberty has been undertaken within the contentious domain of bail as stipulated under the draconian UAPA.

The bail application pertained to the appellant, Jalaluddin Khan, who was accused of being complicit in the larger scheme of the Popular Front of India (PFI), an ‘unlawful association’, of hindering the visit of the Prime Minister to Bihar. The appellant, primarily accused of letting out his premises to train members of the PFI with regard to the aforementioned scheme, denied knowledge of such circumstances and sought bail before the Supreme Court. The courts below had rejected his pleas on account of the stringent measures stipulated under Section 43D(5) of the UAPA.

Section 43D(5) essentially stipulates that bail can be denied to an applicant if there are reasonable grounds for believing that the accusation against him is “prima facie true”. Upon undertaking such prima facie appreciation of the facts, the Supreme Court identified that the appellant is entitled to bail on account of the lack of evidence indicating his complicity. While doing so, the judges reiterated the essence of liberty as the crux of bail, reiterating the forgotten albeit fundamental principle of ‘bail is the rule and jail is the exception'. Thus, bail was observed as a Fundamental Right enshrined under Article 21 of the Constitution of India, subject to the fulfilment of conditions under Section 43D(5), for persons wrongfully detained for onerous offences of the Act.

It is important to note that the Bench made such an observation as a measure to underline the erroneous outlook adopted by the lower courts within the case. The special and High Courts were reprimanded for merely noticing the severity underlying the charges and the broader scheme of the PFI. The charges were deemed to have not been considered objectively.

‘Social morality’, a term embodying the shared values within the narrative followed by a particular community, is conspicuously regressive with respect to ‘criminals’, particularly those accused of committing acts of terror against the State. Blanket persecution of such individuals is usually sought and advocated by political organisations. Upon observing the inclination of the lower courts towards justifying unjust detainment without consideration of the baseless charges therein, it is clear that such social morality is pervasive and has the potential to corrupt the minds of the judiciary as well. Unfortunately, the presence of such regressive forms of social morality is apparent upon observing the recent pronouncement of a coordinate bench judgment in the case of Gurwinder Singh v. State of Punjab.

In Gurwinder Singh, the apex court dealt with the bail application of the appellant who was accused of being complicit in the procurement of firearms for the Khalistan movement. The bail was rejected as incarceration of the accused was not unduly delayed and restricted. Thus, bail on the basis of the enforcement of the right to a speedy trial, as upheld in the case of Union of India v. KA Najeeb, was not warranted in the present instance. Such distinguishment has been underscored and rightly justified in subsequent judgments such as Javed Ansari v. State of Uttar Pradesh. However, the Division Bench in Gurwinder Singh unconsciously held that after regressively interpreting the impugned provision, Section 43D(5).

“The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - ‘bail is the rule, jail the exception’ – unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act.”

Upon penning such words, the vessel embodying ‘bail, not jail’ sailing towards the horizon was capsized, and from its ruins, the leviathan ‘jail, not bail’ emerged. The Bench reached the aforementioned conclusion by undertaking a ‘purposive interpretation’ of the proviso to Section 43D(5), specifically the words ‘shall not be released’ therein, which was said to reflect the intention of the legislature to allegedly favour bail only in exceptional circumstances. The procedure within the Section was stated to merely identify ‘justifications’ to reject the bail. Thus, judges would be prejudiced towards approaching any bail application with the intent towards rejecting the same.

The prevailing ‘social morality’ towards oppressing unlawful persons is hence ubiquitous within all levels of the judiciary, with the potential to empower the majoritarian government to leash the ‘watchdog of democracy’.

The approach of the Court in Gurwinder Singh has far-reaching consequences and is a substantially different outcome from the judicial outlook emphasised in the case of Jalaluddin Khan. For instance, whilst observing the prima facie nature of the case, the approach of the courts would incline towards identifying if there are reasonable grounds to either reject the application, while assuming an initial presumption of innocence (Jalaluddin Khan) or accept the application, while assuming a presumption of guilt (Gurwinder Singh) . The latter scenario would surely present a less favourable circumstance for applicants and curtail their fundamental right to life as the judiciary would be inclined towards rejecting the application and favouring bail only under exceptional circumstances.

The case of Gurwinder Singh is precarious within the contemporary scenario as the UAPA has been criticised for being utilised as a political weapon by the government towards curbing dissent and oppressing minorities. The order was particularly subject to such weaponisation on account the ‘unique nature’ of the criminal legislation as a limitation to bail stipulated therein. Therefore, the observations of the Division Bench in Jalaluddin Khan stating that courts should not hesitate to grant bail in the appropriate circumstances has come at a vital juncture.

Underscoring the importance of bail, notwithstanding the grave nature of the offences within the UAPA, allows the Court to endorse ‘constitutional morality’ and the right to liberty encompassed therein over draconian forms of ‘social morality’ within its statutory interpretation. A reflection on the duality between the cases indicates the need for judicial awareness on constitutional morality and exercising caution to ensure the repeal of draconian criminal laws in the near future.

Sharan Sampath is an incoming Associate at Catalyst Law, Bangalore.