Sanction to Prosecute - The Judgment in Om Prakash Yadav

Public servants engaging in corrupt activities and using the law for punishing them for such conduct, are a serious matter in India. Since the start of the Republic, public servants abusing their official position has been a priority issue. Many commissions have come and gone, statutes have been replaced and updated, and if one was to read the news of any period over the last seventy-five years, all of this appears to have as big an effect as the ripples cast by dropping a stone in the ocean. 

Hyperbole aside, the inability of legal remedies to curb corruption has become infamous. Commentators correctly point to general inefficiencies of the legal framework as contributing to the mess, a framework where trials take an eternity to conclude. This inefficacy is compounded by certain special features which are triggered whenever "public servants" are sought to be prosecuted. One such special feature is the need to secure prior sanction from the concerned administrative authority of the public servant before launching a prosecution against them.  

Section 197 of the erstwhile Criminal Procedure Code 1973 [Cr.P.C.], or Section 218 of its indigenous doppleganger the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS], provide this rule. The relevant part of it states that whenever a certain category of public servant is "accused of any offence to have been committed by him while acting or purporting to act in the discharge of his official duty (emphasis mine)" a prosecution can only be launched with the prior sanction from the administrative authority competent to remove such public servant from office. 

The Judgment in Om Prakash Yadav

How do you draw this line to decide whether the accused public servant was acting or purporting to act in discharge of duty when they committed the offence? The words are acting or purporting to act, lending themselves to the idea that the line ought to be drawn conferring a broad protection to ensure that public servants are not troubled by frivolous litigation. But construe it true to this idea, and you run the risk of transforming public office into a carte blanche, which is unreasonable, and when squared with the political history of corruption in independent India becomes an absolute no-go. The result? A Sisyphean exercise for the Indian Supreme Court to try and confer upon the clause a reading which is fair to all interests. 

The most recent and venerable example of this exercise is a decision in Om Prakash Yadav v. Niranjan Upadhyay & Ors. [2024 INSC 779]. The public servants here were police officials, and they were accused of having filed a false case with a motive not to corruptly ensnare an innocent soul, but to corruptly save a guilty one from being prosecuted. This soul, one Ashok Yadav, was accused of being party to a murder and was named as an accused in one case, but he was also named as an accused in a case of bootlegging having occurred barely an hour later but more than 150 km away. The victims in the murder case alleged foul-play by the police, arguing that there was no bootlegging case and it was only a ruse to give him a cast-iron alibi. The allegations of foul-play were found believable by the sessions court holding the murder trial, which refused to accept the alibi after considering the record. 

The police officers were prosecuted for their illegal acts, but they challenged the proceedings against as being invalid because no prior sanction had been obtained. Despite the findings of the murder trial, the Allahabad High Court agreed with the public servants and closed the cases, prompting a challenge by the victims to the Supreme Court. 

In Om Prakash Yadav the Court takes great pains to take one through the twists and turns of the judicial history on drawing the boundaries of the requirement of prior sanction (an exercise lasting nearly 25 pages!). This journey leads it to distilling its understanding of the legal position at Paragraph 65, with some additional principles at Paragraph 74. This attempt to simplify the past decisions by reducing it to a set of principles for future courts to tread the path with ease, reveals the Sisyphean nature of the task. There is not one real test, as we see, but many legal aspects for a court to consider while deciding whether sanction is truly required or not for prosecuting a public servant. Furthermore, the consideration of these aspects is so fact-dependent, that there in the vast majority of cases every side will pursue litigation to secure their positions. Which, in turn, will lead many of them back to the Supreme Court, for future judges to deal with the issue.  

The Cart Before Horse Syndrome

An additional problem which Om Prakash Yadav throws up in sharp relief is what I would term the 'cart before horse' issue that has afflicted much legal wrangling over sanction. The argument is simple: can entering into conspiracies and committing offences ever be an act in the discharge of official duties? Of course not, and so insisting upon prior sanction for such acts is preposterous. This argument is placing the cart before the horse, because at the stage of seeking sanction, it is only alleged that the public servant had committed a crime. If this was to become the standard, then there would be no case where sanction should be sought, rendering it entirely redundant. 

In distilling the set of principles at Paragraph 65, the Supreme Court is acutely aware of this fallacy, and cautions against it. But this is where the facts in Om Prakash Yadav enter the fray. Given that it already had a detailed analysis of the probable illegality of what the police owing to its treatment by the sessions court, Om Prakash Yadav was a bad case to apply this law by the Court. The idea of sanction is to serve as a prior safeguard at the start of a prosecution, when courts and administrative agencies do not have evidence from trials before them. Here, that basic concept stood inverted, giving courts evidence recorded during a trial which suggested that whatever the public servants had done was grossly illegal. Not only this, but it turned out that one of the police officers was not even posted at the police station where the case was lodged, suggesting that he was not acting in discharge of his official duties at all. To nevertheless turn around and protect these public servants from being prosecuted for harbouring a murder accused would be a startling outcome.

Perhaps owing to these facts, the Supreme Court could not refrain from lathering the 'cart before horse' analysis with a veneer of principle. Through Paragraphs 65 to 67, it states that if a public servant abuses or misuses office, then it disentitles them from any protection of sanction. More specifically evoking the facts of this case, it states that "when a police official is said to have lodged a false case, he cannot claim that sanction for prosecution under Section 197 CrPC was required since it can be no pat of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same." It is easy to arrive at such conclusions when a trial has been held concluding that the official lodged a false case, but in almost all other cases it would be an extremely contentious issue. Deciding whether public servants are entitled to sanction on whether they misused or abused office would cause many courts to commit that very error of giving too much importance to allegations to render sanction redundant.

Conclusion

The peculiar phrasing of the law provision, the conflicting interests at hand, and the highly fact-specific and particularised application of the legal rules in question ensure that litigation around issues of sanction will not end unless the law itself changes. Parties will keep travelling to court to secure their positions,  and at different points of time in the trial as well, making sanction an issue which never loses relevance. 

It may well be that the other parties in Om Prakash Yadav itself go back to the Supreme Court in the future. Because in its final analysis the Court has held that the on the basis of material before it, there was absolutely no need for sanction to prosecute one police officer. But for the other three officers, it held that the trial could yet result in evidence showing that their acts were in discharge of duties, and in that event the trial court could revisit its decision and hold that a sanction to prosecute them would be necessary. Like Sisyphus, then, the courts remain pitted against this rock, until the legislative gods intervene.   

Guest Post: Anticipatory Bail, Disclosure Statements, and the 'Samarth Kumar' Jurisprudence

(This is guest post by Pratyay Amrit and Rohan Gajendra Pratap Singh)

The Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act") was enacted to tackle illicit drug peddling and consumption in Indian society – not without the oft repeated criticism of aligning with the United States’ ‘War on Drugs’ and consequently, international and intra-national illicit drug trade. Until the judicial pronouncement mentioned in the following paragraph, Indian High Courts were of the opinion that a person may be entitled to anticipatory bail under the Act if the only evidence against them is a disclosure statement made by a co-accused to an investigating officer under the Act. This was in line with the decision in Tofan Singh v. State of Tamil Nadu (“Tofan Singh”) wherein the Supreme Court held that officers falling within the ambit of Section 53 of the Act have powers akin to that of an office-in-charge of a police station, meaning that confessions made to them – specifically officers enumerated under Section 42 of the Act – under Section 67 of the Act would be akin to statements made to the police under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”). The corresponding section is Section 180 in the Bharatiya Nagrik Suraksha Samhita (“BNSS”). Consequently, such statements would be inadmissible as evidence as per Section 25 of the Indian Evidence Act (“IEA”) and correspondingly, Section 23(1) of the Bharatiya Sakshya Adhiniyam.

However, a series of judgments post Tofan Singh have followed a different route. It can be traced back to a 2022 decision in State of Haryana v. Samarth Kumar (“Samarth Kumar”) which seemingly shut the door for such accused persons to rely on Tofan Singh while seeking pre-arrest bail even when there had been no recovery from them. The only circumstance implicating them in the case was a disclosure statement under Section 67 of the Act. This effectively means that people will be arrested under the Act even absent any material recovery and thus, will be forced to seek regular bail under stringent twin conditions. We argue that such a development has rendered the Act, widely regarded as draconian, stricter and created room for its weaponisation. This analysis is based on the judicial practice followed in cases which sprung up post Samarth Kumar which we argue, is a corruption of the rationale in Tofan Singh. We argue that the grant or refusal of anticipatory bail must depend on multifaceted considerations as has been enumerated in Indian jurisprudence.

The Tofan Singh Ratio

The 2020 judgment in Tofan Singh was the result of a reference made by a Division Bench in 2013 where that bench first gave the conclusion that statements under Section 67 of the Act could not be used, which was later affirmed by a majority in 2020. For almost a decade thereafter, the dominant jurisprudence was that when a person is implicated merely on the basis of a disclosure statement of a co-accused made under Section 67, they are entitled to anticipatory bail if there is no other evidence to corroborate the disclosure statement including lack of recovery of contraband. 

While the reasonability of factors indicating a bail applicant’s innocence may be varied, a scenario that merits careful consideration considering the Tofan Singh verdict arises when a person is implicated solely on the basis of a statement made by an accused under Section 67 of the Act. The said section empowers an officer under Section 42 of the Act to examine any person acquainted with the case and even to call for information from any person to determine whether any provision of the Act has been contravened.

Understandably, this dichotomy creates confusion as to whether Tofan Singh ought to be applied in a way that would allow for the grant of anticipatory bail when the bail applicant’s involvement is not hinged on any factor other than the disclosure statement of a co-accused. While the ratio in Samarth Kumar suffered by reason of the order being non-speaking, perhaps the observations of the Supreme Court in a 2001 judgment in Murleedharan v. State of Kerala lend some strength to its ruling. The Apex Court while dealing with the bail provision of the Kerala Abkari Act had held that the same was in pari materia with Section 37 of the Act. Denying anticipatory bail, the Supreme Court chastised the Sessions Court for granting pre-arrest bail on the ground that only the confessional statement of the accused connected the applicant with the offence. It was observed that it could not be concluded at such an early stage that the investigating agency would not collect further evidence to establish the nexus between the applicant and the offence and that custodial interrogation was crucial to unearth all necessary evidence. However, it is important to note that this decision was rendered much before the verdict in Tofan Singh and that it is open to the court granting anticipatory bail to direct the accused to join the investigation, failing which the anticipatory bail may be cancelled (reading Sections 437(5) and 439 CrPC).

The Backdrop Of Samarth Kumar & The Jurisprudence After

In its order dated 16.07.2021 in Daljit Singh v. State of Haryana, the Punjab and Haryana High Court granted anticipatory bail relying on the ratio in Tofan Singh (by now affirmed by the Three Judges' Bench). It was observed that the petitioner was incriminated based on the disclosure statements of the co-accused. Since such confessional statements cannot be relied upon in a trial for an offence under the Act as per the ratio in Tofan Singh, the court allowed anticipatory bail. The same view was upheld in a host of other orders including in Kamal Chand v. State of Himachal Pradesh wherein the High Court of Himachal Pradesh by order dated 22.11.2022 held that the disclosure statement of a co-accused would not be sufficient to deny anticipatory bail, even when call detail records between the petitioner and co-accused are available since such call records are matters to be examined at the stage of trial. The bench used the provision of bail bond to grant the necessary relief to the accused. Importantly, this verdict came after Samarth Kumar highlighting the beginning of the inconsistency in jurisprudence with a binary choice between Samarth Kumar and Tofan Singh. 

The Supreme Court in Samarth Kumar effectively foreclosed reliance on this line of reasoning to allow pre-arrest bail. While doing so, it observed without further elucidation that reliance on Tofan Singh may be placed at the stage of regular bail or final hearing. In effect, Samarth Kumar had excluded reliance on Tofan Singh in considering anticipatory bail applications without providing sufficient justification for negativing this oft-adopted argument. In light of Samarth Kumar, courts have displayed refusal – inconsistently – in granting pre-arrest bail when a person having no criminal antecedents is implicated solely on account of a disclosure statement, even when there has been no recovery of contraband from them.

The Law & The Trouble

Section 37 of the Act affirms the cognizable and non-bailable nature of offences under the Act. It further outlines the procedure for grant of bail to a person accused of an offence under the Act. The section further lays out the twin conditions for offences involving commercial quantity or if they are amongst 3 offences under the Act (namely Sections 19, 24 and 27A). Samarth Kumar dealt with – among others – Section 27A of the Act which deals with financing illicit drug trafficking and harbouring offenders. Thus, the twin conditions would apply to this case. There is a clear and rational nexus in being more stringent with commercial quantity offences. Interestingly, Table 1A.5 of the National Crime Records Bureau data for Special and Local Laws for 2022 divides the incidents under the Act on two broad parameters – either concerning personal or commercial usage in roughly a 3:1 ratio with a total of ~1.11 lakh incidents in 2022. Given the causality implicit in incidents concerning commercial quantities, an argument could be made to justify imposition of twin conditions in commercial quantity cases in a blanket manner. However, the Supreme Court verdict in Sanjay Chandra v. CBI (“Sanjay Chandra”) had held that bail – while itself a fact-based discretionary power in non-bailable offences concerning the twin condition – still must adhere to certain foundational principles of objectivity. One would be the test of ‘necessity’. 

In this regard, the recent division bench verdict in Tarsem Lal v. Directorate of Enforcement is helpful. When the accused complies with summons issued by court, there is no need for him to seek anticipatory bail. While this flows from Section 88 of the CrPC – and correspondingly, Section 91 of the BNSS – the underlying idea is that of ‘necessity’. Section 88 CrPC or Section 91 BNSS alleviates the issue elucidated in Sanjay Chandra. Notably, the judgment in Sanjay Chandra had emphasised on considering criminal antecedents and the absence of it in determining the grant of anticipatory bail. This is observed in numerous cases including in order dated 21.02.2023 in Aniket v. State of Punjab and order dated 23.09.2022 in Gurpreet Singh v. State of Punjab wherein the Punjab and Haryana High Court refused to rely on Tofan Singh while considering anticipatory bail applications as per the ratio in Samarth Kumar. The Special Leave Petitions filed against these orders were also dismissed by the Supreme Court by orders dated 28.04.2023 and 07.11.2022 respectively. At the same time, another bench of the Supreme Court found force in the very argument that High Courts countenanced before the order in Samarth Kumar was pronounced. In Vijay Singh v. State of Haryana, a division bench of the Supreme Court by its order dated 17.05.2023 allowed anticipatory bail to the applicant on the ground that he was implicated by the disclosure statement of the other co-accused, even though he was already enlarged on bail in a separate matter under the Act. This is in contradiction with Samarth Kumar. Ironically, this verdict also does not provide any reasoning for its conclusion.

Further, in Union of India v. Shiv Shankar Kesari, the Supreme Court had clarified that a court was not required to determine whether the applicant under Section 37 is guilty or innocent but is merely “called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.” This is standard for any interpretation concerning twin conditions in any criminal statute. However, this has led to the courts rendering varying interpretations of the threshold required to be met to be allowed the relief of bail under the Act, and even more so for anticipatory bail. This threatens to fortify an already stringent bar to getting relief under Section 37 into an unassailable impediment for persons implicated on flimsy grounds.

Balancing the Scales

Rather than a blanket rejection of the ratio in Tofan Singh at the stage of anticipatory bail, courts must collectively look for substantive material corroborating the confessional statements and consider other factors such as the applicant’s antecedents, possibility of fleeing justice or committing further offences, and the motive behind accusations. This also affirms the Supreme Court verdict in Siddharam Satlingappa Mhetre v. State of Maharashtra which had further emphasised on the cooperation of the accused as a dominant factor in grant of anticipatory bail and bail in general. It held that the power to grant anticipatory bail is not restricted to exceptional cases but based on the particulars of each case. Accepting the ratio in Samarth Kumar would imply that it might be impossible to obtain anticipatory bail for any offence under the Act in any case, because the prosecution would need only to rely on a disclosure statement to have the application rejected. Courts must require a greater nexus between the applicant and the offence, such as their involvement in other offences under the Act, availability of transcripts or recordings of communications with the accused indicating that the applicant is guilty, a suspicious money trail, ownership of apprehended vehicle etc. In fact, the Punjab-Haryana High Court, in Vikrant Singh v. State of Punjab, had acknowledged Samarth Kumar and yet, relied on the audio transcripts to reject the application for denial of bail as meritless. Thus, the issue boils down to the Janus of judicial application here – either follow Tofan Singh and the rationale therein or follow Samarth Kumar which does not provide any reason whatsoever. The problem greater than Samarth Kumar is the way the courts have dealt with similar cases as has been shown in the judgments mentioned above.

Crucially, Section 37 of the Act read with Section 438 of the CrPC empowers courts to grant anticipatory bail when there are “reasonable” grounds indicating that the accused is not guilty. When there is no material incriminating an individual except a confessional statement under Section 67 – which of itself carries little evidentiary value – it might be reasonable to believe that the bail applicant is not guilty for the purposes of bail. The State cannot produce any lesser evidence than the implication in a confessional disclosure statement to seek denial of anticipatory bail. At the same time, the applicant cannot lead any stronger evidence or plead on any other ground apart from referring to a lack of evidence corroborating the disclosure statement. The same ought to suffice as a “reasonable ground” to believe that the applicant is not guilty.

Conclusion

While it is true that custodial interrogation of an accused may be expedient to unearth evidence of offences under the Act, an outright denial of anticipatory bail in cases where the applicant is implicated solely by a disclosure statement of an accused would risk opening individuals – who are falsely being named to be framed, to derail the investigation, or to protect the actual perpetrator – up to humiliation and harassment. A court should not defer applying its mind regarding the freedom of an individual until after he is arrested when the Act itself does not make a distinction between pre and post-arrest bail. The creation of a two-tier system where Tofan Singh does not apply at one stage but applies at a later stage is without reason – as is clear from the language in Samarth Kumar. Preventing reliance on Tofan Singh at the anticipatory bail stage appears to serve no purpose when the court might accept the same argument at a regular bail hearing post-arrest without any change in circumstance in the meanwhile.

The Karnataka High Court and the Curious Cases of John Moses

On 28 November 2024, it appears that two different benches of single judges of the Karnataka High Court (Bengaluru Bench) passed judgments concerning the same petitioner—John D. Moses—who assailed his arrest by way of a writ petition [WP 22042 of 2024 decided on 28.11.2024] and his continued detention in a bail petition [Crl. Petition 9537 of 2024 decided on 28.11.2024]. John Moses did not have a good day in the High Court, alas, as he lost in both courtrooms.   

The allegations against Moses were grave. Alleged to be the 'leader' of gang involved in land grabbing by making fake documents, the stringent Karnataka Control of Organised Crimes Act 2000 [KCOCA] had been invoked against him in July. Even as Moses was in jail after his earlier arrests, the police now moved to secure his custody in July 2024 in the KCOCA case. How the police effected this arrest became a focal point for both the litigations which Moses subsequently filed before the High Court. 

Relying upon the recent judgments of the Supreme Court in Pankaj Bansal, Prabir Purkayastha, and also Arvind Kejriwal, Moses contended that the grounds of arrest had not been furnished to him. Failure to do so not only rendered his arrest illegal, but also vitiated his subsequent custodial detention. In both courts, the government contended that this requirement to furnish written grounds of arrest was not applicable to the case at hand, and in any case the facts suggested there had been sufficient compliance with the law as laid down by the Supreme Court.

This is where things become interesting. While Justice Shetty has held in the bail petition that furnishing of the written grounds of arrest was a requirement applicable to all cognizable cases (and found substantial compliance on the facts), Justice Nagaprasanna in the writ petition has held that the Supreme Court's judgment was not applicable to all cases. 

The basis to restrict the applicability of the written grounds of arrest requirement appears twofold. Justice Nagaprasanna looks at precedent to hold that there are older Supreme Court judgments offering a different view, and secondly he argues from the point of what one may call administrative discomfort, to conclude that only serious crimes should have such serious rules. 

With respect, the opinion's invocation of precedent is difficult to follow. Decisions on preventive detention are cited to conclude that "What would unmistakably emerge from the elucidation qua Article 22 by the Apex Court is that under the preventive detention laws of any kind, be it COFEPOSA, MISA or any other provision which permits prevention detention, grounds of such detention should be made known to the detenue. The Apex Court has thus interpreted Articles 22(1) and (2) of the Constitution of India to become applicable and restrictable to preventive detention cases." This is plainly incorrect, as it ignores Article 22(3) of the Constitution which states that Articles 22(1) and (2) do not apply to the preventive detention regime. 

This unsustainable finding becomes the segue to the media-grabbing section of the opinion, which looks at the impracticality of what the Supreme Court has done by enforcing such a strict rule upon ordinary police stations, which would open a "pandora's box". Which is why the strict rules should be confined to strict cases. Why a KCOCA case is not strict enough, one can only wonder, but that is not the point. 

Justice Nagaprasanna's opinion has echoed a concern that many courts have voiced since May 2024, when the Supreme Court broke new ground by mandating that written grounds of arrest be furnished to accused persons. Surely, though, the Supreme Court was not unaware that it was taking a step which would inconvenience law enforcement agencies. If anything, the period between Pankaj Bansal and Prabir Purkayastha shows that the Supreme Court clearly knew that it was taking such a step now. Recall that after Pankaj Bansal it was precisely this argument of inconvenience which led courts to prevaricate on the extent of its ruling in the months thereafter, and in fact led the Delhi High Court to dismiss Purkayastha's petition in the first place by holding that the rule applied only to PMLA cases but not UAPA ones. 

That the Supreme Court did not wish confine its written grounds for arrest requirement to the UAPA, but all cases, was unequivocally expressed through Prabir Purkayastha where it had held that a person has a "fundamental and a statutory right to be informed about the grounds of arrest in writing" whether they are "arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s). [Emphasis mine]". The paragraph is as clear a peroration as one can get. It is a different matter that some law enforcement agencies, and courts, may choose to close their ears in response to it.

The circumstances of the Moses petitions make it likely that the Supreme Court will be re-entering the fray sooner rather than later on this issue of grounds for arrest.* In a sense, the present situation after Prabir Purkayastha seems like the experience of the Supreme Court of the United States in the years of Chief Justice Warren when it cast constitutional criminal procedure remedies in stricter terms, prompting a flurry of outrage at the law enforcement level which was echoed by many state courts. 

One hopes that the Indian Supreme Court remains firmly wedded to its view in Prabir Purkayastha, which is a nod to the adage that for fundamental rights on personal liberty to be meaningful, they should be inconveniencing the law enforcement agencies.

*A bench of the Delhi High Court had also recently held that the requirement applies to all cases, creating a dissension amidst High Courts as well.

Sanction and PMLA

In Bhibu Prasad Acharya [Crl. Appeal Nos. 3414-16 of 2024, decided on 06.11.2024], the Supreme Court held that the provisions of Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.], and by extension of Section 218 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] apply to the Prevention of Money Laundering Act 2002 [PMLA]. 

The basis for this view was Sections 65 and 71 of PMLA — the first applies Cr.P.C. provisions to PMLA proceedings so long as they are not inconsistent, and the latter rules that in case of any inconsistency, the PMLA overrides. Nothing within the PMLA excluded application of sanction provisions, and so necessary effect had to be given to Section 197. It made sense as well, according to the Court, considering the object of Section 197 which was to ensure that public servants are afforded a measure of protection against legal proceedings of a vexatious character [Paras 6, 17-18]. In the facts of Bhibu Prasad Acharya, the Court held that prior sanction was required, and absence of such sanction rendered proceedings unsustainable.

Since then, there has been quite a buzz around this decision and its purported harm to the PMLA regime's enforcement as obtaining sanction is now made mandatory. News reports also suggest that the government may be mooting a challenge to a position which renders sanction mandatory.

Only, obtaining sanction is not made mandatory by Bhibu Prasad Acharya.

The decision holds that the clause regarding need for prior sanction applies with equal force to PMLA as it does to other laws. It does not, by any stretch, hold that obtaining sanction itself is necessary for all PMLA cases, because Section 197 Cr.P.C. and Section 218 BNSS do not say so. These provisions are not like other clauses which by their very text make the need for sanction mandatory in all cases, such as Section 19 of the Prevention of Corruption Act 1988.

What Section 197 Cr.P.C. / 218 BNSS do is pose a question — was the alleged offence committed by the public servant while acting in the discharge or purporting to act in the discharge of official duty. If yes, it needs prior sanction. But if not, there is no need for sanction. Each case turns on its own facts. 

The case-by-case determination involved in Section 197 naturally meant that in cases where sanction was not taken, aggrieved persons challenged the move, and required courts to consider the scope of the clause. It has led to a large, complicated, and often inconsistent body of law on what acts are within the scope of an official's public duty, when sanction can be challenged, what happens if governments sit pretty and do not pass sanction orders, and how deep the scrutiny while granting sanction should be. But at no point has that body of law held that sanction under Section 197 is a must.

All that Bhibu Prasad Acharya does, and it does so absolutely correctly, is to give natural effect to the text of the PMLA which does not contain any clause ousting the issue of sanction. Its result is not to render the need for sanction mandatory, but to open up a new avenue for litigation in these cases. The ball will be in the agency's court. Where it does not seek sanction, quite often public servants will challenge the move, as they do in other kinds of cases.  

Call for Submissions: National Law School of India Review [Volume 37(1)]

[This is call for submissions issued on behalf of the National Law School of India Review] 

National Law School of India Review

National Law School of India University, Bengaluru           ISSN No: 0974-4894

Call for Submissions – Volume 37(1)

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Guest Post: Reflections on the High Court's Judgment in Fahad Shah's Case

(This is a guest post by Rajyavardhan Singh)

A recent post on this blog by the editor argued that the Supreme Court in Union Territory of J&K v. Peerzada Shah Fahad had erred in declaring the J&K and Ladakh High Court’s judgement (“Fahad Shah”) per incuriam merely for referencing the "clear and present danger" test from Schenck v. United States (“Schenck”) in the context of bail under Unlawful Activities Prevention Act, 1967 (“UAPA”). It argued that the High Court in Fahad Shah did not misuse Schenck to assess free speech so as to render it per incuriam, but instead adapted it to set a threshold for justifying arrests and detention under UAPA. Further, it criticised the Supreme Court’s dismissal as potentially hindering other courts from considering valid reasoning.

Reading the analysis led me down a fascinating rabbit hole, exploring a rather distinct yet related question: Whether the invocation of the "clear and present danger" doctrine was normatively sound in this context?

Upon careful perusal, I submit that the High Court's reasoning suffers from two interconnected flaws that extend beyond the mere citation of foreign precedent. First, it commits a false equivalence by conflating a doctrine specifically designed for post-facto speech restrictions with the preventive nature of the UAPA, thereby misaligning the temporal and causal requirements. Second, and more problematically, it attempts a flawed transposition of American free speech doctrine into an Indian anti-terror statute, disregarding not only the Supreme Court’s deliberate rejection of such transplants but also the carefully calibrated evolution of domestic anti-terrorism jurisprudence.

1. False Equivalence

The High Court's invocation of the "clear and present danger" test in interpreting Section 43D(5) of the UAPA marks a significant departure from the legislative intent of the statute. While Sekhri contends that the court merely borrowed evocative prose from Schenck to express a proximity requirement for arrests, this interpretation understates the conceptual confusion such borrowing creates. Although he is right in observing that the High Court was "crafting an idea to address a problem using remnants of old concepts from different contexts," the Court's seemingly harmless transplantation nonetheless obscures a fundamental category error.

For what must be understood is that the "clear and present danger" test, even when repurposed, carries with it specific analytical assumptions about causation and imminence that are fundamentally at odds with the preventive nature of the UAPA framework. As evidenced in paragraph 31 and 32 of the High Court's judgement:

"31. The legislative intent behind s. 43D (5) and its proviso was to ensure that those who were a “clear and present danger” to the society, whose relationship with the offence is proximate and direct, do not get bail during the pendency of the trial lest they take to their nefarious ways again, once released. It was not to keep incarcerated the unwary transgressor who found himself at the wrong place at the wrong time.”

32. "We hold, that the investigating agency, investigating a case under the UAPA, has the unbridled authority to arrest or not to arrest under the provisions of the UAPA. However, upon arrest, the investigating agency would have to justify the arrest on the anvil of 'clear and present danger' of the accused to the society at large, if enlarged on bail. The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society." [Emphasis mine]

This borrowed standard implicitly requires a degree of temporal and causal proximity that the UAPA deliberately eschews. When the High Court states that authorities must "justify the arrest on the anvil of 'clear and present danger' of the accused to society at large" it imposes a reactive paradigm on a preventive statute. This, I submit, is not merely a semantic sleight-of-hand—but much rather represents a substantive reconfiguration of the UAPA's operational logic. The specific importation of Schenck's framework introduces evidentiary and temporal requirements that could effectively nullify the UAPA's preventive capacity, particularly in cases involving long-term planning or preparatory acts.

This is precisely why the UAPA deliberately moves away from such immediate temporal requirements, allowing intervention based on reasonable grounds even when threats aren't imminent.

2. Flawed Transposition

The High Court's use of Schenck's language to express established principles about justified arrests overlooks the dangers of decontextualised legal borrowing. While Sekhri quite rightly notes that "there is no complete ban on citing a case that may have been disagreed with or frowned upon in the past" so as to render it per incuriam, nevertheless I argue that the manner of citation matters. Otherwise, it risks oversimplifying the nuanced jurisprudential reasons why Indian courts have rejected the "clear and present danger" test in cases like Babulal Parate v. State of Maharashtra, State of Madras v, V.G. Row and more recently in Arup Bhuyan v. State of Assam.

Importantly, the High Court's judgement does more than merely reference Schenck; it attempts to transpose a specific legal test designed for post-facto speech restrictions into the realm of anti-terror legislation. This, in turn, creates two fundamental problems. First, it muddles the distinct jurisprudential frameworks governing speech restrictions and terrorism. Second, it disregards the Supreme Court's careful development of native doctrine around preventive detention, which has evolved to balance security imperatives with constitutional rights in India's specific context (As Shastri J. emphasised in V.G. Row, India's constitutional scheme demands "different techniques and approaches" that account for our unique security challenges).

The flawed transposition becomes even more apparent when we trace how the borrowed test would operate in practice. Under Schenck, the "clear and present danger" framework was designed to evaluate whether speech had sufficient proximity to harm to justify restriction. This required courts to analyse: (1) the immediacy of potential harm, (2) the direct causal link between speech and danger, and (3) the substantive likelihood of the feared outcome.

When the High Court attempts to transpose this framework to UAPA arrests, it reveals both the appeal and limitations of such doctrinal borrowing:

First, while the "clear and present danger" test might seem useful for cases like Mr. Shah's, where a significant temporal gap exists between alleged acts and arrest. It creates an impossible ‘temporal paradox’—requiring authorities to show a "present" danger for actions specifically aimed at preventing dangers from becoming "present." This framework might work when questioning decade-old publications but becomes incoherent when applied to UAPA cases more broadly. While the High Court's instinct to question the necessity of arrest for historical acts is sound, importing Schenck's test unnecessarily complicates what could be a straightforward proportionality analysis.

Second, even in cases involving journalistic activities, the causal chain analysis from Schenck proves problematic. The High Court's attempt to require a direct link between past publications and present security threats, while protective of press freedom, fails to account for how written content might contribute to security risks over time through gradual radicalization or by providing operational intelligence to hostile actors. The "clear and present danger" framework's insistence on direct causation could blind courts to these more subtle, long-term security concerns while offering little additional protection against arbitrary detention that existing proportionality standards don't already provide.

Thus, while the High Court's judgement admirably attempts to protect against arbitrary detention for dated allegations, its choice of doctrinal tool creates more problems than it solves. Rather than importing foreign standards without fully contextualising them—especially from reactive contexts to preventive ones—a more effective approach would involve creating guidelines specifically tailored to address temporal remoteness under UAPA. Such guidelines could consider factors like the ongoing relevance of old publications, shifts in context since their release, and the proportionality of current detention. This approach would better serve the Court’s objectives while preserving doctrinal coherence.

To Conclude

Section 43D(5) of the UAPA, while imposing strict conditions for bail, does not override the fundamental requirement that arrests must be necessary and proportionate. In Fahad Shah, the High Court could very well have examined whether the significant temporal gap between the alleged journalistic activities and the arrest met these essential standards (given the decade-long gap between Mr. Shah’s alleged acts and his arrest) without resorting to the analytically incompatible 'clear and present danger' test.

In Union of India v. K.A. Najeeb, the Supreme Court has already established that statutory restrictions like Section 43D(5) cannot displace constitutional safeguards enshrined under Part III in evaluating preventive detention:

18. “It is thus clear to us that the presence of statutory restrictions like Section 43­D (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 43­D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

This approach would have allowed the court to conclude that an inordinate delay between the alleged acts and the arrest, without compelling justification, suggests either a diminished need for preventive detention or an abuse of process—both warranting bail. Such reasoning would not only have led to the same conclusion but also promoted a more principled development of bail jurisprudence under special legislations like the UAPA, ensuring doctrinal consistency.

Fairness and Bail

In July 2022, the Supreme Court delivered what proved to be the the last significant milestone on the law of bail — its judgment in Satender Kumar Antil v. CBI [(2022) 10 SCC 51]. At the time, I had noted that the judgment was quite a mixed bag. On some issues, such as arresting persons and denying bail after completing the investigation, it unequivocally expressed a preference for personal liberty. On others, such as actually laying down clearer guidelines for exercising bail discretion, it did not do much. And it left the subject with a plea to Parliament — forlorn, as it turned out — to think of coming up with a dedicated law on the matter of bail as is prevalent in some other countries (the UK example was cited).

Two years hence, the situation has only gotten worse. It may seem paradoxical to be writing this at a time when the Supreme Court and High Courts are invoking Article 21 to grant bail in cases where trials have been delayed and accused persons have spent years behind bars. That, however, is precisely the point: My wrongful confinement does not magically become concerning after two years, eleven months, and nine days. It was either always concerning, or it is never concerning but simply uncomfortable. 

Once we begin to see this, it is clear that granting bail is not some liberty affirming, constitutionally driven, judicial choice in such instances that we ought to be celebrating. It is a morally (and politically) convenient, and legally hollow, choice, which is perpetuating a jurisprudence of apology driven by the personal beliefs of judges with the text of the law merely a proxy, and not a choice for liberty inspired by a set of rules and political ideals that represent shared beliefs.

But this is really the tip of the proverbial iceberg. The consternation, or celebration, around the outcomes in bail cases takes all the attention and successfully masks the real scandal of procedural unfairness in the bail adjudication setting. What are the hallmarks of fairness, in a processual setting? There is no textbook definition, but it is easy to agree on some basics: (i) fair notice, in that I should know the case I have to answer (ii) an opportunity to be heard to give said answer, and (iii) a guarantee that my case will be dealt with by the same yardsticks as every other case. If even one is absent from the procedural setting, I would argue that such a setting cannot, under any stretch, constitute a fair setting especially when what is at stake is personal liberty.

And yet, we continue to adjudicate bail cases in a manner that almost prides itself in not confirming to the most basic notions of fairness. A person being arrested will almost never be furnished a copy of the First Information Report, or detailed grounds of arrest, or even a copy of the application seeking custody at the time of the hearing. Even when a bail application is somehow filed in spite of not having access to any of these documents, prosecutors and police personnel will either not file any response and rely exclusively on the secret contents of their dossiers and diaries, or object to sharing copies of any responses being filed with the accused. 

With such woeful anchoring on the aspect of notice, being granted with an opportunity of being heard is a mirage for most persons being detained. Almost always the first hearing is a washout since the lawyer has no idea of the case, and getting a hold of the documents will take a few days. At this point, the degree of protection that the law offers to your personal liberty becomes directly proportional to the money that you are willing to pay to lawyers who can secure that liberty. It is settled transformation which, sadly, leaves the vast majority behind. 

Which then brings us to the worst placed facet of the lot - adjudication itself on issues of bail and remand. There are, again, two parts to this. Firstly, there is the content of decision-making, which takes us back to the outcome. In not having guidelines on how courts ought to exercise their discretion on bail and custody, the result is that courts are free to conduct almost any kind of reasoning so long as it fits the remarkably featherlight and self-justificatory standard of exercising judicial discretion 'judiciously'. Secondly, there is the process of decision-making — how many hearings, what all has to be seen / looked at, who all have to be heard, what all must be recorded in the order, etc? 

Somehow, there is even greater flux on this aspect. A bail application may be decided now, or may be listed four months later, and may not be heard on that day citing some administrative difficulty and then be taken up two weeks later. Or a judge may simply conduct a remand hearing at his house in the morning after counsel having ten minutes notice. A court may agree to look at the documents filed by an accused, or may not, or may look at material filed by the prosecution without showing anything to the accused. A victim may be heard, or may not unless the statute prescribes otherwise, or may only be allowed to file written objections. A judge may pass a two paragraph order, or a two page order, but may not share it with the accused until after a few days due to logistical difficulties. Where the judge grants bail there may be conditions, or may not, or the same kind of cases may have different conditions, or different accused in the same case may have different conditions without any explanation. Literally, anything goes.

When we think about the need for a bail law, the conversation naturally glides towards the debates on the matter of outcomes since that is what grabs most public attention. The real need for having such a law is arguably elsewhere, in making the process of bail adjudication fairer for all parties involved. It would be a huge step in stemming the growth of this jurisprudence of apology, and reinforcing a rules-based ordering of personal liberty, victim's rights, and investigative prerogatives of the state. 

Considering that undertrial prisoner population today stands at a jaw-dropping national average of more than 75% of total prison population, there is no other legal reform requiring more attention. It needs work, yes, and it will not brook an easy solution such as simply releasing first-time offenders early. Whichever parliament, or Court for that matter, commits itself to the task, ensures that India's criminal justice system takes a step back from the abyss into which it has been staring for some time now.