Supreme Court's Watali Judgment Requires Reconsideration As It Rendered The Grant Of Bail Impossible In UAPA Cases: Justice Gopal Gowda

Justice V. Gopala Gowda on Saturday expressed that a people-centric model of national security law is the quintessential need of the hour, the massive powers of terrorism legislation in India under the authoritarian impulses of the State being dangerous in a constitutional democracy.

The former Supreme Court judge was speaking at a webinar by CJAR- "Discussion On DEMOCRACY, DISSENT AND DRACONIAN LAW- Should UAPA & Sedition Have A Place In Our Statute Books?".

He asserted that the legal provisions of the special security legislations which accord impunity to state excesses need to be repealed, and that stringent guidelines are to be framed for the exercise of these powers.

The judge was of the view that the judicial interpretations of these laws have been erratic and situational, and that there is an imminent need of clarity in reconciliation of the conflict between human rights and national security.

Justice Gowda observed that the exceptionally stringent provisions which render grant of bail extremely difficult are meant to apply to exceptional cases which fall under the ambit of the legislative intent behind special laws like UAPA; that a sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly to ensure that a person who was not within the legislative intent does not get accosted under a particular penal provision, and as a corollary, the application of the provision warrants an equally stringent interpretation.

"However, the state of exception and state of normalcy has been compromised. Laws which are not intended to replace the ordinary IPC offences, unfortunately, have now become a weapon against dissent to take democratic dissenters as prisoners", said the judge.

Justice Gowda elaborated that the deference to civil rights even within the restrictive definitions of the UAPA can be culled out from certain judgements already delivered on this point by several High Courts and the apex court- that the operation of legislations like the UAPA designed to deal with exceptional circumstances must be restricted to such cases and their operation should not be blurred with ordinary legislation; that the word 'terrorism' in the UAPA must be given a specific meaning that relates to the defence of India as a sovereign nation and must be distinguishable from public order offences, and public order must not be coloured with seditious motives; that allegations must be individualised and actual and there must be no scope of speculation in the determination of actual facts, and inference should not form the basis of the definition of the offence.

Justice Gowda flagged as another concern the standards for permissible departure, derogation of civil rights and impunity to excesses of the State agencies with regard to action taken under discharge of such laws. He discussed that Section 49 of the UAPA, in as much as it accords protection of State action taken in good faith, the consequences of such unbridled power is dangerous for a constitutional democracy as it sets the stage for excesses by the state.

"It is high time that the State is vested with the quintessential responsibility to harmonise civil rights and national security by appreciating the fact that neither is subject to a trade-off under any circumstances in a constitutional democracy", said the judge.

It may be noted that the proviso to Section 43-D (5) of the UAPA states that an accused shall not be released on bail if the court "on a perusal of the case diary or the report made under section 173 of the CrPC is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true".

"Therefore, the UAPA restricts the role of the courts to examining the case of the prosecution while considering grant of bail and precludes bail if the prosecution's version, without being subject to the rigours of cross examination, appears true. Statutes have limited the role of the courts to a one-sided view only where the prosecution's version determines the grant of bail", commented Justice Gowda.

It may be noted that the Supreme Court judgment in NIA v. Zahoor Ahmad Shah Watali (2020) ruled that it is not permissible for courts to even engage in a detailed analysis of prosecution case while considering bail under UAPA and to weigh whether evidence adduced by prosecution is even sufficient or not.

"The Watali judgement further ties the hands of the defence. The grant of bail is rendered impossible till the end of the trial, which could take generations. The judgment needs to be reconsidered", remarked the judge. He commended the 2021 Supreme Court decision in Najeeb's case where a three-judge bench has appreciated that the presence of statutory restrictions like Section 43­D (5) of UAPA per­se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III the Constitution, and that 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; that such an approach would safeguard against the possibility of provisions like Section 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

"Merely because there is a restriction cannot take away the constitutional power of the Constitutional Courts. The constitutional courts have got the basic power of judicial review to ensure that human rights are not violated indiscriminately by filing cases against persons who are expressing dissent and such persons shall not be allowed to languish in the jails- it is part of the basic structure of the Constitution and. In Father Stan Swamy's case, the State, the NIA and the Court failed to take into consideration that he was entitled to bail on medical grounds! In view of such stringent conditions, it was not done, which made him die in the hospital. This aspect is very alarming! The right-thinking people and more particularly, the judges of the district judiciary and the Constitutional Courts have to reconsider this belief that we have no power to deal with these kinds of cases", concluded Justice Gowda.