-By Renuka Nevgi
The term ‘bail’ essentially means procurement of release of an accused awaiting trial or appeal by the deposition of security as an assurance for his/her submission whenever demanded by legal authority. The application for bail can be approved or rejected on various grounds such as nature of the offence, severity of punishment, flight risk, risk of tampering with evidence or witnesses. The object behind the denial of bail is preventive as opposed to punitive. Bail is deemed to be a general rule in bailable offences under the under Code of Criminal Procedure, 1973 [“the Code”], whereas it is a matter of discretion in non-bailable offences. This blog makes a comparative analysis of provisions for bail as under the Code and Unlawful Activities Prevention Act, 1967 [“UAPA”] based on the manner in which discretion is exercised by the Court while releasing the accused. The justifiability of stringent provisions under UAPA has been examined in the light of recent judgments delivered by the Hon’ble Supreme Court of India which prescribed melting down of the rigours placed under UAPA for the protection of human rights of the accused.
Distinctions in the grant of bail
The most fundamental distinction between the bail provisions essentially originates from the presumption of an offence under Sec. 43E of UAPA. It is vital to note that Art. 11(3) of the Universal Declaration of Human Rights states that every person accused of any penal offence is presumed to be innocent until proven guilty. While this is a rudimentary tenet in criminal law jurisprudence which has also been upheld by Indian Courts, UAPA contains a contrary presumption. This has an inevitable effect on the scheme of provisions for bail as laid down by the respective statutes.
It is pertinent to examine the manner in which discretion is to be exercised by the Courts while granting bail. A Magistrate should have “reasonable grounds to believe” that the accused has committed an offence punishable with death or imprisonment for life u/s 437 of the Code. As compared to this, the Court can deny the bail under UAPA if the accusation appears to be “prima facie true”. Thus, the threshold established for depriving a person of his liberty, reputation, and dignity is much lower under this draconian legislation. Furthermore, Sec. 437 of the Code contains a proviso for granting bail to women, sick or infirm. Such grounds are also absent under the UAPA thereby denying the accused essential rights which may have serious adverse effects on the health of the accused persons while they are still undertrials.
One such unfortunate incident took place when a Kanchan Nanavare, (who was a students’ rights activist with alleged Maoist links) was booked under UAPA and arrested in 2014. She had developed a brain ailment. The family members allege that prison authorities failed to inform them about the illness until the surgery was conducted on Jan 16, 2021. While waiting for the trial to be concluded for 6 years, she succumbed to the illness even before her relatives could meet her. This constitutes a blatant infringement of the fundamental right to life and liberty under Art. 21. In any event, a presumption of offence should not be extended to such a limit, that the undertrial prisoners are not being able to live their life with basic human dignity.
Analysis: Striking a balance between national security and liberty of an individual
A counter-argument to this could be that the offences punishable under UAPA cause danger to the public at large and hence stringent provisions are required for maintaining public order and upholding the sovereignty of the nation. Thus, these are exceptional cases wherein the accused can be deprived of their liberty in the public interest. Although this contention seems to be coherent theoretically, it is alleged to have been misused on numerous occasions. As per the latest report by NCRB, 3974 persons were arrested under this legislation from 2016 to 2018 and a rise of over 72% was observed in the cases filed under it in 2019. Hence, looking at the statistics, it can be concluded that these are certainly not exceptional cases and this Act has been used frequently by the Central Government.
There exists a semblance in offences under UAPA and offences such as rioting, waging war, etc under the Code, i.e. they pertain to security, sovereignty, and integrity of State which is in the public interest at large. Hence, the seriousness of most of the alleged offences under the UAPA remains the same as under the Code. For instance, in the case of State v. Umar Khalid, charges were framed against the accused under various sections of the Code, Prevention of Damage to Public Property Act 1984, Arms Act 1959, and UAPA. The Sessions Court granted bail on the basis that the accused cannot be incarcerated for a long time for the sake of identifying other rioters or for further investigation. It was also observed that “sketchy material” is not adequate to keep someone behind bars while the trial is ongoing. Irrespective of the fact that he was granted bail, he still continues to be in judicial custody for sections charged under UAPA. Thus, for the same set of actions, charges framed under UAPA can lead to unnecessary curtailment of liberty.
In a progressive step taken by the Supreme Court, it held that the right to default bail is not only a statutory right but also a fundamental right and it cannot be denied by the filing of supplementary chargesheet under the UAPA. In another case under UAPA, while interpreting proviso to clause (5) of Sec 43D, it was held that Court should not merely rely on the statements given by investigating agency. In a similar case of Shaheen Welfare Association v. Union of India under Terrorist and Disruptive Activities (Prevention) Act 1987, the Supreme Court had held gross delay in the trial to justify invocation of Art. 21. The accused can also be released on bail owing to the prolonged length of the trial.
The Hon’ble Supreme Court has also held on another occasion that the restrictions imposed under Sec. 43 “do not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III (fundamental rights) of the Constitution”. It was observed that even though the Courts are expected to adhere to the provisions stipulated in UAPA at the beginning of the proceedings, the procedural rigours should melt down if there is no probability of the trial being completed within a reasonable time period. Therefore, the Court laid emphasis on the constitutional right to a speedy trial while granting bail to the accused. A writ petition can be filed before the High Court or Supreme Court if the fundamental right of the accused has been violated because legislation passed by the Parliament cannot oust the powers of the Hon’ble Court under Art. 32 and Art. 226. Thus, the life or health of the accused should not be endangered even if it is in accordance with an Act passed by the parliament and the Courts are empowered to protect the fundamental rights of the accused in such cases.
Liberty is a primal value and the constitutional bedrock upon which civilization rests. Although bail is a matter of discretion, it cannot be exercised in an injudicious or capricious manner. In grievous offences, the factual matrix of the matter has to be taken into consideration and bail cannot be denied only because multiple other cases exist relating to a similar matter. The recognized triple test establishes a comparatively lower threshold for the grant of bail which is (i) no flight risk (ii) no tampering of evidence (iii) no apprehension of threat or influence over witnesses. The Courts should adopt a presumption that the accused would not flee the trial. Other factors such as frivolity of the prosecution’s case, nature of the accusation, the character of supporting witnesses, and severity of punishment also need to be taken into account.
If the conclusion of the trial is taking years, such a scenario entitles the accused to be released on bail with conditions. Moreover, mere conjectures or inferences are not enough to deny bail and they need to be backed by evidence. The presumption of an offence under the UAPA should also be considered to be inadequate for refusal of bail if the unnecessary delay can be expected in a trial that would deprive the accused of the Right to Life and Personal Liberty under Art. 21. The right to bail should be upheld if there is no reason to believe that the accused has committed the offence. The question is not only of deprivation of physical liberty but also of violation of dignity and loss of reputation of the individual. Moreover, infirmity and sickness should be considered as grounds to grant bail as no purpose will be served by subjecting the undertrial prisoners to inhuman torture. In this manner, the right balance must be struck between national security and the human dignity of the accused.
[Renuka Nevgi is a second year student of BA LLB at Maharashtra National Law University, Mumbai.]