Some Reflections In The Wake Of 'Jail Is The Rule, Not Bail' Law

“18. 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 is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) Code of Criminal Procedure - 'may be released'- suggests the intention of the Legislature to make bail, the exception and jail, the rule.”

No doubt, the menace of terrorism must be suppressed with iron hands. The dreaded criminals of terrorism are threat to the progress of every nation and lives of innocent people. Nonetheless, it is inevitable to assess how far the goal aimed are achieved by the introduction of laws to deal with it. The UAPA originally came into force in 1967 to impose reasonable restrictions on the associations. Until 2004, the subject of terrorism was foreign to the UAPA. Formerly, the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)' was enacted to deal with the terrorism. It was a sunset law . Later, the Prevention of Terrorism Act, 2002 (POTA) replaced the TADA. The major problem faced by those laws was that the investigating agencies were copiously misusing it.

Unlike the two former Acts, in UAPA, the legislature put an emphatic embargo on granting bail. In both TADA and POTA, bail jurisdiction was drastic, yet, the hands of the courts were not tied. As discussed in Gurwinder Singh, the courts are restrained from releasing the accused on bail in UAPA cases, if the accusation is prima facie true. Though it is much debated, in my opinion, there needs to be more on the topic, particularly to assess, how much the law is concomitant to the Constitutional values.

The Draconian TADA and POTA.

Though the TADA was used very rampantly, by the police, only less than 3 percentage of the cases ended in conviction. Most of the cases were proved to be either false or cases where the stringent law was unnecessarily invoked to give it the colour of a terrorist case. When the Constitutional validity of the TADA was challenged in Kartar Singh vs. State of Punjab^[2] the Supreme Court observed:

“262. It is true that on many occasions, 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.”

Then, the POTA came into force. The prime exponents of that law, later expressed their remorse and difference of opinion.

'The Hindu' dated July 16, 2004 reported:

“Eminent lawyer Ram Jethmalani said today (on 15, July, 2004, while releasing Peoples' Tribunal Report.) that his support for the Prevention of Terrorism Act (POTA) was an “important mistake” made by him. He called it a terrifying Act that must be repealed, lock stock and barrel…..” I was a very harsh critic of the Terrorist and Disruptive Activities (Prevention) Act (TADA) and when I was a member of the Rajya Sabha, I made a compassionate appeal to repeal it. But all the arguments I made to discontinue TADA can apply to POTA. I am glad that I have got this opportunity to publicly apologise for supporting POTA,” ….” I did support the enactment of the Act, but I now realise it was a serious mistake. I did not realise that such draconian power should not be given to the investigating agencies and police. This power has been misused and very badly, so much so that the debits balance of the Act overwhelms its advantages. I am glad the new I am glad the new Government is bound by its manifesto to repeal the Act and I believe it shall be fulfilled soon,” he said.”

The statement by Justice VR Krishna Iyer, on the stringency of the TADA is very relevant:

“When reckless illiberalism is writ large on the face of the enactment, the scrutiny of its legality also has to be too stern and searching to be scared into cowardly surrender merely because of patriotic phrases like unity, integrity, security or sovereignty of India or dreadful diction like terrorism, bomb, dynamite, and explosives, which may create terror in a panicky or pusillanimous judiciary^[3]. “

Subsequently, on the day, when the POTA was repealed, most of the provisions from that law have been incorporated in the UAPA by an amendment.

Review Committees

One of the salient features of the TADA and the POTA was that Review Committees were formed to evaluate whether the provisions of those laws were invoked properly. That feature was first introduced as directed by the Supreme Court in Kartar Singh. Even though the Supreme Court upheld its Constitutional validity, the Court was vigilant about the possibility of misuse of the TADA. To mitigate the possibility of misuse of the law, the Court directed to form Review Committees at different levels for the purpose of reviewing the cases registered under that Act to find whether prima facie case existed in those cases, if and when the aggrieved parties approached the committees. Subsequently, when the TADA was repealed, and enacted the POTA the provision for such committees was made part of the Act (section 60) itself. As major provisions and the definitions in the UAPA are not much different from the TADA and POTA, but rather more extensive than the same, the scope for misuse is there, and hence it is necessary to have a provision for Review Committees also inserted in the UAPA. But, unfortunately, when the UAPA was amended to incorporate the majority of the provisions of the POTA and amended from time to time, the provision for the Review Committees was not made part of it. 

Subsequent Amendments to UAPA

By the amendment of the UAPA in 2008, 2012 and in 2019 more teeth were added to it. In 2008, the stringent provisions of bail were added. Section 43D(5), as discussed in Gurwinder Singh, is to deny the bail in all cases of UAPA, when there exists a prima facie truthful case. The 2008 amendment introduced section 43D (along with other provisions). In 2012 (Act 3 of 2013) another amendment came with the introduction of 'economic security' so that the production, circulation etc. of high-quality counterfeit currency notes are included within the meaning of terrorism. The 2019 amendment aimed to include individual terrorists in the Fourth Schedule of the Act.

UAPA, Prone to Misuse

The UAPA can easily be misused by the police. In cases where, naturally, there is no scope for invoking the law of terrorism, provisions of the UAPA can be incorporated and make the accusations prima facie true at the ipse dixit of the police. A glaring example is that, even before the amendment in 2012, the National Investigation Agency (NIA) used to incorporate section 15/16 of the UAPA with an interpretation that the circulation of counterfeit currency notes is the indirect destruction of genuine currency in the economy and thus the law as such was attracted. In fact, a Division Bench of the High Court of Kerala, in Shareef v. State^[4] accepted the above interpretation, the faulty legal position continued till the Full Bench (per majority, 3:1), in Abdul Salam vs. NIA^[5] overruling Division Bench judgement. In several other cases, it became later evident that the charges of terrorism were invoked improperly.

In an article written by Sri. Vignesh Radhakrishnan titled 'Data | UAPA, PMLA, Section 153A: Rise in cases, low on convictions'^[6], published by The Hindu, it was reported;

“The Unlawful Activities (Prevention) Act (UAPA), Prevention of Money Laundering Act (PMLA), and Section 153A of the Indian Penal Code (promoting enmity between different groups on grounds of religion, race, place of birth, residence) have a common link. In recent days, cases filed under these laws and section are rising, while convictions have remained poor. Under the UAPA, 4,690 persons were arrested between 2018 and 2020, but only 3% were convicted. ……………. Moreover, under the UAPA and PMLA, getting bail is tough, and so the accused spend most of the trial period inside prison. For instance, of the 1,338 persons arrested under the UAPA in U.P. between 2018 and 2020, only 6% got convicted, while none of the other 94% got bail.”

So even in cases, where the scope for the application of the UAPA is not there, the police used to see that the accused are kept behind bars without bail owing to the implementation of the stringent provisions of law. It is worth noting that the many of the accused involved in Bhima Koregaon^[7] case were released after more than five years of their custody, mostly with observation that there does not exist prima facie case against them. The corollary is that they were undergoing custody for long without adequate reason solely due to the mandate of section 43D(5) of the UAPA. Misusing a harsh law is more dangerous than misusing an ordinary law. More so, if the law is used in cases, nor related to acts of terrorism, it will be doing injustice to the law itself.

Bail in UAPA, An Embargo, but not under the Constitution.

Even if the bail under UAPA is not acceptable, while interpreting the Constitutional mandate, the Supreme Court in several cases has token the view that bail under UAPA is not an unreachable one, for instance, in Union of India (UOI) vs. K.A. Najeeb^[8], while dismissing the appeal filed by the NIA, held:

“18. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

And, if it is viewed that the UAPA would prevail over all the other provisions of bail, as the way the section 43D(5) of the UAPA is enacted, it can even be appraised that default bail (under section 167(2) of the Code of Criminal Procedure) is not applicable to the cases of the UAPA when there appears that the accusation is prima facie true, owing to Non-Obstante clause 'notwithstanding anything contained in the Code', is used in section 43D(5). Despite that, the Supreme Court in several cases, like Syed Mohd. Ahmad Kazmi v. State^[9] (one under UAPA) and in Sanjay Dutt v. State through CBI^[10] (a case under TADA) held that the bail as envisaged under section 167 (2) of the Cr PC is applicable in these cases.

Inordinate Delay in Trial

Section 21(2) of the National Investigation Agency Act, 2008 stipulates that every appeal preferred under that provision (all the appeals respecting UAPA may come within this realm) be heard (preferably) and disposed of within three months of its admission. Neither under the UAPA nor under the NIA Act is there a time stipulation for the completion of an investigation or trial. There has to be a specification to complete the trial within a fixed time after the filing of the final report. In the absence of such a mandate, the trial in such cases would prolong for a long time. This would act as legal but unjustifiable incarceration in cases where the accused are denied bail and acquitted later for lack of evidence. If a survey is conducted, it could be seen that majority of the cases under the UAPA are pending awaiting trial for many years, and some are for decades, and in many cases the accused were constrained to plead guilty for this reason alone.

The Law Declared in Gurwinder Singh

The Supreme Court in Gurwinder Singh, drawing support from another decision in National Investigation Agency v. Zahoor Ahmad Shah Watali^[11], enumerated the situations in which the court can find the accusations against the accused to be prima facie true. Several situations are mentioned there. It is not the case that the decision in Gurwinder Singh is wrong. Due to the harsh nature of the bail provision (adhering to the literal interpretation of the provision, even the Supreme Court does not have the statutory power to release the accused), the bail jurisdiction of the UAPA has to be developed more from a Constitutional perspective, as the law is misused very much, the trials are being prolonged for years. And also, many of the cases are destined to end up in acquittal.

Need to Expand the Horizon of Bail Law in UAPA.

The Supreme Court and the jurists have often observed that aspects of terrorism cannot be easily defined. The Supreme Court in Mohd. Khalid vs. State ofWest Bengal^[12] has observed:

“As noted as the outset, it is not possible to precisely define "terrorism". Finding a definition of "terrorism" has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present 12 piecemeal conventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State's "terrorist" is another State's "freedom fighter". If terrorism is defined strictly in terms of attacks on non-military targets, a number of attacks on military installations and soldiers' residence could not be included in the statistics……”

The aspect of terrorism involves so many features. It may be motivated by the indoctrination of radical philosophical ideas; it may be supported by acute violence; it may involve ideas to overthrow governments; and the people involved in such activities are of several types. They may incite violence, they may create terror among the people, and they may sometimes merely propagate ideology. The UAPA defines the 'terrorist act' in an invariable manner to include all types of activities that are, in a nutshell, prejudicial to the national interest. Based on such a definition, other provisions like custody, bail, punishments, and dealing with the properties of the accused and the properties derived from the terrorist acts, etc. are drafted.

The terror cases and the persons involved therein can be categorized into different types without prejudice to the present definition. On one side, they belong to the extreme types of hardcore criminals, who are always involved in violence like using bombs and striking terror in the people, and on the other side, the accused are involved in socio-political activities, working among the backward and poorest, may be with a view to propagate ideas prejudicial to the nation and the policies of the government. They can be political activists, journalists, students, cartoonists, opposition leaders etc. The release of the accused involved in violent activities on bail would be a potential threat to the people and the nation. But, the accused in other categories, just with an accusation of prima facie case, and denying them bail without differentiating them and their roles would sometimes violate the ultimate justice, guaranteed by our Constitution. Whatever may be the rigour of the criminal statute, an accused is still 'just a person 'alleged' to have committed an offence.

When the law is susceptible to misinterpretation and misuse and the scope for keeping the accused in jail without bail (even in cases where the prospect of conviction is less) is wide, it may be desirable to relax the law of bail in the UAPA, based on some well-founded categorization, but not limited to categories made herein (though the accusation appears to be prima facie true). As the law is intransigent, the categorization can be made by only the Constitutional courts by on the touch stone of the Constitutional provisions.

Abdul Khader Kunju. S is the author of the "Commentaries on the Unlawful Activities (Prevention) Act, 1967, published by the Asia Law House, Hyderabad. Views are personal.

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