[Ed Note: In this post, our analyst Harsh Jain, writes about bail  jurisprudence under the Unlawful Activities (Prevention) Act, 1967 as part of the explainer series by LAOT analysts.]

Introduction

A number of recent events have brought the Unlawful Activities (Prevention) Act, 1967 (“UAPA”/ “the Act”) under sharp focus. The death of priest-activist Father Stan Swamy in judicial custody after he was repeatedly denied bail despite his deteriorating health invited widespread outrage from civil society . A number of student activists were recently arrested for their involvement in the protests against the Citizenship Amendment Act, 2019 and the proposed National Register of Citizens. It was alleged that they were involved in a ‘conspiracy’ to incite violence and riots in Delhi under the guise of protesting. In a much-publicized set of orders, the Delhi High Court (“HC”) had granted bail to Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha, three prominent student-activists, on June 15, 2021. It had also made some important observations relating to the fundamental right to protest and the use of the UAPA as a tool to stifle dissent. The bail hearing of Umar Khalid is also currently underway at the time of writing this article. On September 13, 2021, Professor Anand Teltumbde filed a writ petition in the Bombay HC to quash, inter alia, Section 43D(5) of the UAPA for creating an insurmountable hurdle for any accused to be granted bail and violating Articles 14 and 21 of the Constitution. Last week, on October 28, 2021, the Supreme Court (“SC”) set aside the Kerala HC’s judgment reversing the grant of bail to Thwaha Fasal, who was charged under the UAPA for alleged association with the banned Communist Party of India (Maoist). This article examines the stringent conditions imposed on the grant of bail under the UAPA and the recent judicial developments in that regard.

Legislative Background

The UAPA was first enacted in 1967 in the backdrop of India’s defeat to China in 1962 and the Dravida Munnetra Kazhagam advocating for Tamil Nadu’s secession from India. At the time of its enactment, the UAPA pertained to only “unlawful activities” and did not contain any provision restricting the grant of bail. Since then, the Act has been amended multiple times. The 2004 amendment added Chapter IV, which included “terrorist acts” under the purview of the UAPA, following the repeal of the Prevention of Terrorism Act, 2002. Under Chapter IV, Section 15 of the Act provides the definition of a terrorist act while Sections 16 to 23 provide punishments for different offences related to terrorist acts. The most recent 2019 amendment allows the Central Government to designate individuals as ‘terrorists’ by including their names to the newly added Fourth Schedule.

The restrictions on the grant of bail were inserted in the UAPA in 2008. Sections 43D(4) and 43D(5) of the UAPA (reproduced below) restrict the ability of those arrested under the Act to get bail. Section 43D(4) prohibits the application of Section 438 of the Code of Criminal Procedure, 1973 in cases involving the arrest of any person accused of having committed any offence under the UAPA. This means that an accused cannot seek anticipatory bail in apprehension of arrest for offences under this Act, leaving only the option of regular bail open. However, the standard for the grant of regular bail under the UAPA is higher than that for ordinary criminal offences. Section 43D(5) provides that no person accused of offences under Chapters IV (punishment for terrorist activities) and VI (terrorist organizations) of the Act can be released on bail if the court finds reasonable grounds to believe that the accusations against him are prima facie true on a perusal of the case diary or the charge-sheet. Therefore, in addition to considering factors such as the apprehension of witnesses being tampered with, the likelihood of the offence being repeated, etc., the court must also reasonably ascertain that the accusations against the accused are prima facie not true in order to grant bail to the accused.

Judicial Developments

The standard for what is prima facie true was set by the SC in the case of NIA v. Zahoor Ahmad Shah Watali. The Court ruled that the exercise of giving reasons for grant or non-grant of bail is different from discussing the merits and demerits of evidence (¶18). It held that an elaborate examination or dissection of the evidence is not needed at the stage of whether bail is to be granted (¶18). Instead, courts are “merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise” at this stage (¶18). Simply put, the courts only have to look at whether the allegations against the accused fit the offences and not if the allegations are true or not. This is because unlike special enactments such as Maharashtra Control of Organized Crime Act, 1999 and the Narcotic Drugs and Psychotropic Substances Act, 1985, where the court is required to be satisfied that there are reasonable grounds for believing that the accused is prima facie not guilty of the alleged offence, the UAPA requires that the court is satisfied that there are reasonable grounds for believing that the accusations against the accused are prima facie not true (¶17).

In overruling the decision of the Delhi HC, the SC held the HC had ventured into examining the merits and demerits of the evidence by, inter alia, going into the admissibility of witness statements and documents submitted by the NIA (¶18). The SC stated that the question of admissibility of evidence is a matter for trial. In determining whether the accusations against the accused are prima facie true or not for the purpose of granting bail, courts must reckon with the “totality of the material gathered by the investigating agency and presented along with the report and including the case diary” instead of just “analysing individual pieces of evidence or circumstance” (¶18). The SC took this stance despite Section 43D(5) making a mention of only of the ‘case diary’ and the ‘report’, i.e., the charge-sheet (case discussed in detail here).

Notwithstanding the high standard for the grant of bail under the UAPA, constitutional courts have sometimes intervened and granted bail even if the requirements of Section 43D(5) are not strictly met. In Union of India v. K. A. Najeeb, the SC ruled that Section 43D(5) does not oust the power of constitutional courts to grant bail on grounds of violation of fundamental rights (¶18). It held that in cases where the constitutional right to a speedy trial has been violated, courts can look past the legislative policy behind the UAPA and grant bail (¶18) (case discussed in detail here). In P. V. Varavara Rao v. NIA, the Bombay HC cited Najeeb to state that the restrictions on bail in the UAPA have to be harmonized with the jurisdiction of constitutional courts (¶44). It held that it is entitled to release the accused from custody on health grounds in exercise of its powers under Article 226 of the Constitution despite rejection of bail application on merits (¶49). Taking any other view would “amount to diluting rights available to prisoners to claim relief on health grounds under Article 21 of the Constitution” (¶50). Therefore, taking into account his health and advanced age, the Bombay HC granted bail to Varavara Rao subject to certain conditions.

A recent development relating to UAPA bail jurisprudence was the granting of bail to student activists Natasha Narwal, Devangana Kalita and Asif Iqbal Tanha by the Delhi HC. While referring to Watali, the HC held that the it was not convinced prima facie of the veracity of the allegations made against the accused with respect to offences under the UAPA relating to terrorist activities. It reached such a conclusion after a preliminary analysis of the charge-sheets. Therefore, it held that that the additional limitations and restrictions for grant of bail under Section 43D(5) UAPA do not apply in the three cases. The Court also held that an act of protest “cannot be termed as a ‘terrorist act’ within the meaning of the UAPA, unless of course the ingredients of the offences under Sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in charge-sheet and the material filed therewith” (Devangana Kalita, ¶45).

Furthermore, the Court cautioned the State against the use the UAPA against acts which come under the purview of other penal laws. According to the Court, the intention of the Parliament in bringing terrorist activities within the purview of the UAPA was to deal with matters of profound impact on the defense of India. Had this not been the case, the UAPA would have been outside the legislative competence of the Parliament (Asif Iqbal Tanha, ¶57). Therefore, according to the Court, ordinary offences, no matter how “grave, egregious or heinous in their nature and extent,” must not do not fall under the UAPA (Natasha Narwal, ¶22) (cases discussed in detail here).

Aggrieved by the decisions of the Delhi HC, the Delhi Police filed an appeal before the SC. The Solicitor General of India, Mr. Tushar Mehta, argued that the Delhi HC had turned the UAPA as well as the Constitution on its head. The state argued that instead of looking at whether a prima facie case under the UAPA was made out against the accused, the Delhi HC misdirected itself and gave ex-facie perverse findings to arrive a conclusion that no case of UAPA was made out. He also contended that the Delhi HC, by watering down the Act to only apply in cases related to the defence of India, was acting beyond the scope of bail orders. The SC agreed that raising questions of unconstitutionality in a bail order was irregular and directed that the orders are not be treated as a precedent or be relied upon by parties in any court. The bail granted to the three student-activists was not cancelled.

Following the Delhi HC orders granting bail to the three student-activists, courts such as the Bombay HC have delivered judgements where, instead of merely accepting the prosecution’s speculation or inferences related to the conduct of the accused, they examine whether it can be reasonably inferred from the material on record if the ingredients constituting the offences are satisfactorily made out and the accusations against the accused are prima facie true. For instance, the Supreme Court held in Thwaha Fasal v. Union of India that it cannot be said that there exist reasonable grounds for believing that the accusations against the accused are prima facie true since no material was placed on record to show any intention on their part to further the activities of a terrorist organization (¶36). This is because intention is a key element for offences relating to membership of/support given to a terrorist organization under Sections 38 and 39 of the UAPA (¶34). The prosecution must place at least some credible material on record to show intention on part of the accused for the Court to believe that the accusations against the accused are prima facie true (case and its potential implications discussed in detail here).

Conclusion

The conviction rate for those arrested under the UAPA is very low:  it was only two percent between 2015 and 2019. However, it is still used extensively by the police, especially in high profile and sensitive cases. Commentators and activists have argued such a restriction on the grant of bail, along with an extension of the time period for filing of a charge-sheet, has been weaponized by the government to stifle criticism and imprison political opponents under false charges. By the time the innocence of the accused is proven, they have already spent months or even years in prison and the damage is done. As Gautam Navlakha, among many others, put it, “the process [under UAPA] itself becomes the punishment.”

Even after the SC held that the Delhi HC orders will not act as precedents, a Special NIA Court relied upon the Asif Iqbal order while discharging Akhil Gogoi. It is evident that the final verdict of the SC in the appeal filed by the Delhi Police will have significant ramifications on bail jurisprudence under the UAPA across the country. It may also end up making the habit of charging people with offences under the UAPA on flimsy grounds less lucrative and expedient for the police.

Further Readings

1. Abhinav Sekhri, How the UAPA is Perverting the Idea of Justice, Article 14 (July 16, 2020).
2. Vakasha Sachdev, Guilty or Not, Umar Khalid Will Be in Jail for Years. Here’s Why, The Quint (September 17, 2020).
3. Namit Saxena, Regular bail under the UAPA qua terror acts: Outshylocking Shylock?, Bar and Bench (June 20, 2020).
4. Sanchita Kadam, What does it take to secure bail under UAPA?, Centre for Justice and Peace (October 6, 2020).
5. Abhinav Sekhri, Bail in Terror Cases: Zahoor Watali, and the Fault Lines in the UAPA, The Proof of Guilt (April 11, 2019).
6. Kruthika R, Bail Under UAPA Can Be Granted if the Accused’s Trial has been Delayed, Supreme Court Observer (February 8, 2021).
7. Anjana Prakash, It’s Time for the Government To Redeem Itself and Repeal the UAPA, The Wire (July 25, 2021).
8. Yashovardhan Azad, Stan Swamy’s Death Exposes Our Broken Criminal Justice System Crying For Reforms, The Wire (July 9, 2021).
9. Gautam Bhatia, Entrenching the Basics: The Supreme Court’s UAPA Judgment, Indian Constitutional Law and Philosophy (October 28, 2021).
10. Abhinav Sekhri, Has the Thwaha Fasal judgment complicated UAPA even further?, The Leaflet (October 31, 2021).

Harsh Jain is a third year law student from NALSAR University of Law, Hyderabad. His interests lie in the field of constitutional law, public law and public policy.