Interesting Criminal Law Nuggets from the Online Gaming Ban

With the world's largest, albeit not most deliberative, democracy having decided to pass more laws by way of the famous ancient Greek and Roman tradition of simply 'shouting' in the past session of Parliament, a new law is soon making way to the statute book. This is the 'Promotion and Regulation of Online Gaming' Act [The Bill can be accessed here]. The new law divides online gaming as a sector consisting of three categories — online money games, online social games, and e-sports — and it metes out differing treatment to each of these categories. It aims to regulate 'e-sports' and 'online social games', and prohibit 'online money games'.

The money involved in the sector, and the fact that a major company from the sector was the shirt sponsor of the Indian Cricket Team, has meant that it has attracted far more discussion than most laws get. The theme of these conversations is largely about whether it is good 'policy' to ban things, etc. — stuff that is not really the domain of this Blog. More interesting is the looming federalism battle on sports at large, as a result of not only this law but the National Sports Governance Act (another law passed in this session). By these two laws, the union government is staking a much greater claim than historically recognised in the regulation of sport. One wonders whether, and for how long, the states will stay quiet. 

And, of course, the most interesting will be how the big players in this giant sector go about engaging in that most famous of Indian entrepreneurial sports — regulatory capture. The Online Gaming Act proposes to create a new regulator which will, seemingly, have some wriggle room on applying the law to the facts of each game, and decide which games are beyond the pale. In other words, the law is only the first step in what is going to be a much longer dance between the government and this sector. 

In all this, what made the new law of interest for this Blog was its interplay with criminal law. The bright and gold lettering of Section 9 with jail time and fines of up to 1 Crore, and most importantly the ominous, and entirely expected move in Section 10 to confer upon police powers to arrest anyone found breaking the law without warrant, has meant that most big players have temporarily ceased operations but no word about the small ones. Law school teachers should take note and add this as an example in their classes on the principles behind criminal law-making and explaining the deterrence theory, which has long suggested that deterrence does not work in general, but certainly deters the more thinking kind of person. The slide can be updated when regulatory capture in the sector is complete to show that deterrence only works till the thinking kind of person has found a way around the locked front door to enter from the back. 

The new law gives not only to the professors, but also the practitioners here. Criminal lawyers should take note of Section 16 which, according to me, has introduced a massive shift in how the law on arrest, search, seizure, has worked thus far. I've extracted it below and emphasised on the relevant parts:

16. (1) Notwithstanding anything contained in the Bharatiya Nagarik Suraksha Sanhita, 2023, any officer authorised under section 15 may enter any place, whether physical or digital, and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act. 

(2) Where any person is arrested under sub-section (1) by an officer other than a police officer as referred to in sub-section (1), such officer shall, without unnecessary delay, take or send the person arrested before a magistrate having jurisdiction in the case or before the officer-in-charge of a police station. 

(3) The provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall, subject to the provisions of this section, apply, so far as may be, in relation to any entry, search or arrest made under this section. 

Explanation.—For the purposes of this section, “any place” shall include any premises, building, vehicle, computer resource, virtual digital space, electronic records or electronic storage device and the officer may, if necessary, gain access to such computer resource, virtual digital space, electronic records or electronic storage device by overriding any access control or security code, where such code thereof is not available

Before you ask, the significant change for me is not the enticing prospect of arresting digital avatars from the metaverse. Rather, its about the search and seizure power For the first time the text of the law has gone and specifically recognised that the virtual / digital plane is a different manifestation of space than the physical one. This is hugely significant, and let me explain how and why. 

Thus far, the general criminal procedure law codified in CRPC 1973 and the new BNSS 2023 recognised the ability to seize items including electronic devices, but did not contain any language to deal with what comes next — i.e., searching inside a device. The text of the provisions conferring power to search were still operating on the physical, tangible plane, and talking about searching places. Absence of any clear legal regime for opening and searching devices meant that there was a basis to challenge the police forcing you to open your phone and trawling through its contents. Mind you, it didn't matter much given the obvious imbalance between nice legal argument and the brute force of a baton, but at least there was a case to be made. With Section 16, this gap in the law is being fixed, by conferring a clear and unambiguous legal basis for police invasion of digital devices. 

Having such a clear and unambiguous recognition of duality between the physical and the digital realm in this special law creates a problem for the general law of search powers, where the language is still rooted to purely physical spaces. One could perhaps argue, by using Section 16, that the general power on search cannot permit invasion of digital devices in the manner that police currently engage in with remarkable alacrity. 

Bye bye legal argument? Well, perhaps not. 

Guest Post: Expert Certificates, BSA, and Electronic Evidence

(This is a guest post by Mohamed Thahir Sulaiman) 

The Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal sought to clarify the legal position on the admissibility of electronic evidence by reverting to the interpretation adopted in Anvar P.V. v. P.K. Basheer, thereby reiterating the certificate mandated under Section 65B(4) as being sine qua non for its admissibility. However, despite its intention to restore clarity and consistency, this decision was criticized on inception, particularly on the court’s omission to clarify an issue hovering since its Sonu v. State of Haryana decision: Whether the production of certificate is an issue of mode of proof, or an issue of inherent inadmissibility. This issue is brought back into the limelight by a recent decision of the Kerala High Court in Alukas Jewelerry v. Anil (17.07.2025), where the court reiterated that the absence of certification is “only a curable defect,” and that an objection to its absence “relates only to a mode of proof issue.”

In this context, this post argues that introduction of expert certificate in the Bharatiya Sakshya Adhiniyam (BSA), 2023, further compounds this existing ambiguity surrounding the nature of certificate, forcing us to revisit the question: Whether the mandatory requirement of certificate as per Khotkar is still justified? I first highlight the internal tension within the post-Khotkar framework regarding the legal nature of the 65B certificate; secondly, I analyse the addition of expert certification under Section 63(4) of the BSA; and thirdly, highlight how this addition compounds the existing tension regarding the nature of the certificate. 

Ambiguity in Jurisprudence

To understand the tension regarding the nature of the certificate requirement for electronic evidence, it is necessary to trace its origins in the decision of Sonu v. State of Haryana.

While the Court had unambiguously held in Anvar P.V. that a certificate under Section 65B(4) of the IEA was mandatory for the admission of electronic records, this position was soon critiqued as being overly rigid and impractical, considering the procedural burdens already facing trial courts. As a result, subsequent decisions in Tomaso Bruno v. State of U.P. and Shafhi Mohammad v. State of Himachal Pradesh diluted the certificate requirement, departing from Anvar’s strict standard.

It was in this context that the Court in Sonu, while holding that the certificate was not necessary in the interests of justice for trials concluded prior to the Anvar ruling, drew a categorical distinction between mode of proof and inherent inadmissibility as objections to any evidence, observing that the requirement of the certificate pertained solely to the issue of mode of proof in respect of the underlying electronic evidence which was sought to be proved. This observation is significant as while the Court in Anvar, though not articulated in this language, held that the electronic evidence is in itself inadmissible without the certificate, the Court in Sonu took the position that the electronic evidence is admissible, and that a certificate should be treated merely as a procedural requirement relating to its mode of proof, rather than a substantive condition for admissibility of the underlying electronic evidence.

Given this context, even while the Court in Khotkar reaffirmed the mandatory requirement of the certificate, expressly overruling its previous decisions in Tomaso Bruno and Shafhi Mohammad, its decision was criticized for not explicitly overruling Sonu, nor clarifying as what is the nature of the certificate. While it could be argued that Khotkar, a three-judge bench, had implicitly overruled the division bench decision in Sonu, this interpretation was negated due to the three-judge bench decision Sundar @ Sundar v. State, which upheld Sonu as good law and reiterated its holding that the certificate is a matter of mode of proof, not of inherent admissibility.

As a result, the current judicial position on the admissibility of electronic evidence consists of two contradictory positions, held by two co-equal benches; While Khotkar maintains that a certificate is a sine qua non, making electronic evidence in itself inadmissible by its absence, Sundar upholds the view that electronic evidence is admissible, treating the 65-B certificate merely as a procedural requirement of mode of proof.

By failing to address this ambiguity in Khotkar, this tension has persisted and is evident even five years later in the Kerala High Court’s decision. While this tension may appear subtle, its true implications become clear with the introduction of the BSA in 2023.

Here Comes the BSA

Section 63 of the BSA has altered the law on electronic evidence, with a major change being found in the newly added schedule, which prescribes the format of the certificate. While this is largely a positive development, considering that there was lack of clarity as to what a certificate must contain under Section 65B(4) IEA, this change also complicates the law on admissibility with Section 63(4) BSA requiring the certificate to be filled both by the Party and an ‘Expert’ as provided in Part B of the certificate.  

This addition raises two critical questions: Firstly, who exactly constitutes the "expert" as found in Section 63(4)? Neither Section 63 nor the accompanying Schedule defines who is an ‘expert’ forfilling the certificate, nor is there any clarification found in the new provisions elsewhere in the BSA.

When reading the BSA collectively, however, it is seen that the only reference to an expert in the context of electronic evidence appears in Section 39(2), the Explanation to which states that the "Examiner of Electronic Evidence" notified under Section 79A of the Information Technology Act (IT Act), 2000, shall be deemed to be an expert.

Using this as an aid in interpreting the definition of “expert” in Section 63 BSA, two readings become possible. The first suggests that the Examiner of Electronic Evidence is one among several “experts” who can fill the certificate, and that other individuals are not precluded from doing so. However, this reading would be inconsistent with the larger scheme of Section 39, where sub-section (2) has specifically defined who would qualify to be an expert for electronic evidence, unlike in sub-section (1), where the term “expert” is remained undefined for general cases. This leads us to the second reading, which construes “expert” in Section 63 as referring exclusively to the Examiner of Electronic Evidence.

However, this reading is deeply problematic for two reasons. First, it may not necessarily reflect legislative intent, given that Section 39(2) of the BSA is a verbatim reproduction of Section 45A of the IEA, and it is known that the BSA’s replication of earlier IEA provisions is has not always been made consistent with the changes relating to electronic evidence (for instance, Section 15 of the BSA reproduces Section 17 of the IEA verbatim, failing to acknowledge BSA’s inclusion of electronic evidence within the definition of ‘document’). Second, the Examiner of Electronic Evidence is to be notified by the central government individually as per Section 79A of the IT Act, as can be seen by past notifications, and it is simply impossible for every electronic evidence to be certified exclusively by such government-notified experts.

Despite these problems, a plain reading of BSA, absent any judicial or legislative clarifications to the contrary, clearly provides that Section 63 certificate must be filled by an Examiner of Electronic Evidence. The fact that such interpretation seems consistent with larger statutory language, regardless of whether it was intended or how illogical it may be, highlights a crucial drafting error in the BSA. Thus, when assuming thus question to be answered according to the second reading, we see that the BSA introduces a significant procedural barrier that hampers admission of electronic evidence.

The second question that now arises is: What is the purpose of the expert certificate in the first place? The rationale behind relying on expert opinion in Section 39 is to aid the court in forming an informed, independent assessment on technical matters. However, in the 63 BSA certificate and its format given in the Schedule to the Act, Part A (to be filled by the party) and Part B (to be filled by the expert) contain the same set of information. It is thus unclear how Part B adds anything of value, when all the expert certificate does is merely replicate the information already provided in Part A. As a result, addition of Part B seems more like a procedural formality, rather than anything adding substantive value.

Additionally, if an expert certificate is already to be provided during admission stage itself, does this not make Section 39(2) itself redundant—why would the court need to refer to expert opinion on electronic evidence when the same is already certified in Part B of the certificate? 

Adding to the Ambiguity

Given this development, one must now reconsider the nature of the Section 63(4) certificate given that it is now to be filled by both the party and an expert.

Intuitively, this additional requirement may appear to reaffirm the Khotkar position: by rendering the expert certificate mandatory, it seems to strengthen the stringent requirement for a certificate as a precondition for the admission of electronic evidence. Such reading would thus align with the Anvar–Khotkar line of reasoning that courts must establish the evidence to be original and unaltered, with Part B of the certificate serving merely as an added safeguard. As per this interpretation, the certificate continues to be a sine qua non for admissibility.

On the other hand, one must remember that the entire point of expert opinion under the IEA had been a mode of proof issue; the opinion of experts under Section 45A of IEA was not mandatory for admission of electronic evidence and was simply to aid the court in assessing its admissibility when doubt arises. Thus, if this conventional purpose of requiring expert opinion still prevails, the expert opinion should also be deemed to be merely a mode of proof issue. This reading then relates back to the Sonu-Sundar line of interpretation.

These competing interpretations just go to show how the BSA has again complicated the issue of the nature of certificate even further. As discussed earlier, while this ambiguity had been lingering even in the post-Khotkar period, the law on electronic evidence was still settled to the extent that a certificate was absolutely mandatory. Such legislative additions, without addressing these pre-existing concerns, have aggravated this underlying tension, resulting in a new set of questions that courts must now resolve: What is the precise legal nature of the expert certificate under the BSA? Is it logically sustainable for Part A to be necessary for admission, while Part B is not? And more broadly, when the statutory content and structure of the certificate have been substantively altered, can the pre-BSA jurisprudence mandating its production for admissibility still validly apply?

Resolving these questions can now no longer be deemed to be a mere academic exercise, as it existed after Khotkar. If Part B of the certificate is interpreted as a mandatory precondition for admissibility, the requirement may significantly hinder the conduct of trials, delaying proceedings and obstructing access to justice. A more balanced approach, treating the certificate, particularly the expert portion, as a matter of mode of proof, would align better with principles of procedural fairness. However, as matters currently stands, there is still no clarity either from the judiciary or legislature regarding this ambiguity. 

Moving Forward

When one sees how much confusion a legislative action, such as the addition of just two words to a provision, can cause, one cannot help but recall Justice Ramasubramanian’s concurring opinion in Khotkar. As he rightly observes, while other jurisdictions in the world have adapted to the technological developments and “fine-tuned their legislations” accordingly, India’s ambiguous legislative drafting has led to considerable “judicial turmoil.”

Given that this understanding was eloquently articulated in 2020, the enactment of BSA served as a golden opportunity for the government to undertake meaningful reform in order to align the law governing electronic evidence with other jurisdictions. Rather, the government strangely, has reproduced the same IEA provisions with the addition of the vaguely defined requirement of an ‘expert’ certificate.

Considering how the ambiguity introduced by the 2000 amendment led to extreme swings in judicial interpretations, from Navjot Sandhu to Anvar, it is reasonable to foresee a similar judicial turmoil ensuing in the coming years from the simple addition of “and expert” in Section 63(4).

Thinking about Law and a 'Legal Science' in India

In a recent post on this Blog, we touched upon the idea of criminal law in India being a rather confusing space to navigate. While the post focused on confusion created due to different courts promoting contrary positions on law, the issue is much broader than that. Courts, Legislatures, and the Enforcement Agencies, all appear at times to be speaking at cross-purposes — on matters of both substantive and procedural law. 

I felt that the point about confusion in the law's landscape could do with a longer, standalone post. I say confusion instead of consistency, but perhaps they can be used interchangeably to describe what I have in mind. Which is the absence of any meaningful coherence within the structure of law. No lodestar to guide lawmaking itself, or to guide decision-making within laws by various stakeholders wielding power. 

Law and Legal Science

There are many reason for pursuing this thought. One of them is a recent paper by Prof. Markus Dubber titled 'New Legal Science in the Dual Penal State' (available here). The paper explores the idea of looking at the structure of law, stripped of the baggage that the legal enterprise has acquired over time in different parts of the globe (traditionally divided across the Common Law and Civil Law lines), and then creating a system based upon identified principles which are pursued through the law. 

This idea, of starting from the ground up to develop a system of law, is a thought experiment which we do not end up dealing with much in India. We do not have any scholarship comparable to Hart & Sacks' The Legal Process that has attempted to unpack the many layers of our legal system, and then try and resurrect it on a bed of principles. What would such an exercise look like within the Indian context? It would need a lot of work, for starters, because of how many layers the Indian system consists of. And then there is the conflict about principles. Professor Dubber's paper moves on the premise that a new Legal Science will be in pursuit of a critical analysis of law. However, can we really agree on what those principles will be, and create a system in willing pursuit of critically analysing the exercise of power by the state? I wonder.

Here, I only bear half the burden and explore the layers of our legal system, working backwards, peeling back layers of the onion. The fight about principles can come later, and by others.         

Our Constitution as a Source of Principles?

Before you say "We do have a lodestar, it is the Constitution of India, and this post can end here", let me deal with that at the outset. The Constitution is a political document which proscribes certain legislative acts in Part III, and promotes certain others in Part IV, but it is not a document which actively crystallises principles for lawmaking. Within that broad sphere of activity which the Constitution leaves open, a State is free to do as it pleases. Even the power dynamics that it sponsored have created more problems than we are ready to acknowledge, as Gautam Bhatia has argued in his recent book.

The boundaries of principle have been supplied by our courts, and quite erratically at that. As Sandipto Dasgupta's argues in his book, independent India's judiciary saw independence as an opportunity for the courts to fully embrace Common Law, and the Supreme Court tested the Constitution not on its own terms or those of its founding principles but on the anvil of Common Law principles which the judiciary thought that it had inherited. Whatever scope for principled lawmaking the Constitution may have provided thus proved to be short-lived as a result.

The Common Law in India   

Peeling off this layer of the Constitution and the founding moment of the Republic takes us to the layer beneath; of colonial rule which began formally in 1858. It was the legal traditions introduced during this time which the judges of independent India turned to. Not just the courts, but the move to "Legalize the Revolution" (borrowing again from Dasgupta) meant that a large part of the colonial state apparatus was retained after independence. 

What were the principles which guided lawmaking during this era? Was it really the Common Law as the judges of post independence India wanted to argue — albeit a shackled common law which they felt had been freed with independence? Or was it something more complicated than that. M.C. Setalvad's Hamlyn Lecture titled the Common Law in India is a good place to start unpacking this, but it is necessary to place it in context. Setalvad delivered this seminal lecture in 1960, at the end of the tumultuous first decade of the Constitution of India governing affairs. A decade in which he was the country's Attorney General and at the forefront of the constant tussle for the Constitution that was going on. To think that Setalvad was in England merely delivering a historical or academic lecture is naive — the lawyer was making a case about his vision of independent India's legal system. 

The pitch that the Common Law came into India is one that has stuck since. But it requires more critical scrutiny than what has so far been offered to help us arrive at a more honest appreciation of the conflicting influences that guide India's legal system. To simply wax lyrical about the Common Law in India ignores a large tradition of colonial legal history — that of the Codification enterprise. 

Codification was conceived of, in part, as a response to the Common Law. A set of predefined rules that did not change on the basis of successive judicial decisions. It was meant to be the scientific expression of law, par excellence. And it was in codification that the colonial legal enterprise was birthed originally, in both realms of civil and criminal law. The Common Law that the courts of British India employed was within this context of these codes, and within the broader context of colonial rule. It presents us with the original setting of the common law working in an age of statutes, much before Guido Calabresi would go on to discuss these themes for America.

The principles, motivations, and influences behind the Colonial Codes, which were interpreted by courts using — at times — the set of principles developed in the Common Law of England, are therefore also an inseparable part of how we unpack Indian law today because of independent India's choice to retain these  codes lock, stock, and barrel. 

The Messy, Pre-Colonial, Company Era     

Peeling the layer of colonialism, we find the messy pre-colonial era which preceded the formal assumption of power by the Crown. Much like the peaceful transfer of power that occurred in 1947, the assumption of power in 1858 was no break with systems past. Instead, legislative and administrative projects which began prior to 1858 are what came forth as the first colonial codes in criminal and civil law. 

A shift from colony to independent nation-state in 1947 without changing much of the colonial state apparatus, including the colonial legal codes, meant that independent India chose to avoid confronting the logic of power that underlined the colonial legal system. This was a logic which placed the sovereign above the subject-citizen. Adopting it in a post-colonial setting has, arguably, proved not to be the best of choices from the perspective of creating accountability upon sovereign power. 

If we turn the clock back to 1858, the transfer of power took place by a simple proclamation read aloud by Lord Canning, and all the natives under Company rule became subjects entitled to all protections of a rule of law under the British Crown. But, the foundational premise of Company Rule was markedly different from Crown Rule. Its predominant goal was policing the territory to maintain law and order and maximise revenue; justice, was not a prerogative. And in adopting the police-state as the base for Crown Rule, it was ensured that the justice promised under the Crown would also remain a poisoned chalice. 

The core interest of Company Rule was revenue collection: administration of law was a by-product. For ease of administration, procedural systems similar to the British law were introduced for civil and criminal proceedings. The core interest structuring these proceedings was not justice but regulation and maintaining order for maximising extraction of wealth. Company Rule coexisted with a sliver of pre-1858 Crown rule, in the form of Crown Courts for certain areas (Presidencies) and peoples (the British).  

The shift from Company to Crown Rule did not eliminate the Police State components while introducing or expanding the just rule of a benevolent sovereign — assuming that the Crown Courts administered any such thing in the first place. But rather 1858 and the subsequent years assimilated them together to form a composite structure akin to the kind of Dual Penal State which Dubber has identified in different contexts. This is perhaps most visibly seen in the complementarity and later assimilation of the Police Act and the Criminal Procedure Code which were enacted by the Crown after 1858. 

Forerunners to Company Rule

The police state of Company Rule is as much part of the foundations of Indian Law as is the Constitution. But it is not the last layer of the onion. We can continue to peel it further and reach the 18th Century. At this point, different parts of the subcontinent were under different legal regimes. Those parts in which the British East India Company took root were no terra nullius either. The legal systems which the Company introduced through its regulations were designed to either nullify, or complement, the pre-existing regime that the Company encountered. This meant, therefore, that the Company's law was also influenced in turn by what came before it. 

The recognition that what came before Company Rule mattered to how the British went about their task in introducing legal rules and schemes for governance is important to help understand just how complicated the structure of present-day Indian Law is. These influences are also not of mere historical significance but can be felt even today, both indirectly in terms of how they influenced the British-era law as well as directly in how various practices can still trace roots back to this period. It is a shame that an effort to go and 'decolonise' the criminal law made no attempt to unravel the substantive foundations of the present-day Indian criminal law, which appear to be largely a 19th Century creation.  

Why a Legal Science?

Without fully engaging with, and deconstructing, all of these influences upon our legal system, it is impossible to carve out the principles that do guide its functioning, or identify ones that ought to guide it.

There is no need for this exercise if all that we want from 'Law' is that it provides some kind of rickety and uncertain basis for how social, political, and economic relationships can function. But if we want to go a step further, then a project of the kind that Dubber bats for — call it by whatever name — is obviously a desirable effort. Especially, in a jurisdiction like India, which has so far not had any time for a true and honest reckoning with its legal history to organise its legal present.

There are numerous examples where a consistent, principled, approach would reap benefits in how the law is created and applied. Within the criminal law, one can easily think of how it would transform the regime of bail and arrest. Again, I might add, for better or for worse depending on where you stand. Either which way it would be better than the present system where outcomes appear determined largely by the luck of the draw, and personal moral compass of individual officers and judges who wield near total discretion in deciding matters pertaining to individual liberty.           

India's Problematic Persistence with Monetary Bail: Article Update

That there is a crisis of undertrial incarceration in India is something most people agree upon. That the current state of bail law and practice contributes to this crisis is, again, a position that few argue against. Take the conversation a notch further and try and engage persons with specifics within the bail regime, and that is where the consensus begins to unravel. 

Mainstream media—newspapers and other opinion pieces—tends to focus on repressive bail regimes of laws dealing with anti-terror or money-laundering crime, where extremely onerous thresholds for granting bail result in lengthy undertrial incarceration. The popularity of this area means it also dominates scholarship. 

The regressive twin-conditions for bail are obviously a big problem but equally obviously they are not the reason for high undertrial incarceration. Poor structural guardrails on bail decision-making by courts is a more proximate cause for why 75% of the prison population consists of undertrials. This is an issue which scholarship (not opinion pieces) focuses upon, albeit not as prominently as it should.

Another issue is the monetary foundations of the bail regime. By this I mean the set of legal rules which declare that to be released from custody on bail a person must execute a bond promising to forfeit to the government a sum of money in the event that person fails to adhere to the terms of his release from custody. And, quite often, the requirement that in addition to this bond, one must also find suitable sureties who will also agree to be bound by a similar monetary promise. Considering that the vast majority of people ensnared by the criminal law are both economically and socially vulnerable, it is not rocket-science to think of just how problematic a bail law that is built upon monetary foundations can be.   

I have put up a new draft paper on SSRN discussing the monetary bail regime. It is meant for a non criminal law audience and so it does not go too deep into details or peculiarities about just how enforcing the monetary system of bail creates injustice. One such detail is the practice that is found in courts across many districts in Maharashtra, Karnataka, Kerala and other states, of insisting that sureties have to furnish a government-issued 'solvency certificate' as proof that they can honour the monetary promise. Getting this certificate means going to the local revenue office, giving proof of your assets etc. to the officials, who then verify it. That it is entirely impossible for a vast category of Indians to jump through these bureaucratic hoops should be obvious to most. Many a defendant ends up in jail for weeks because of this, often securing his release only after getting a reprieve from court on this condition. 

This is only one example of a deeply problematic issue that does not make it to the paper, and depending on which part of the country you look at, other problems embedded in local court practices can be found. It was impossible and also undesirable to deal with all of them in a paper that has a very modest aim of simply trying to bring this issue back to the table in a critical manner. By 'critical manner' I mean arguing that the monetary bail regime is a bad thing which deserves to go, not that we can try and make it better or more palatable. This was the tenor of critique that was prominent in the 1970s through Justice Krishna Iyer and Justice Bhagwati, but has since died out. Such a critique needs to be urgently revisited at a time when both economic conditions and judicial delays are worsening, increasing the proportion of defendants who are imprisoned for no reason other than their poverty. 

As always, comments are welcome and most appreciated!     

Guest Post: When Najeeb Meets Watali — On the Statutory Restrictions on Grant of Bail Under UAPA

(This is a guest post by Hany Babu and Surendra Gadling, who have been detained in prison as 'undertrials' since 2018 and 2020, respectively. This piece is being published simultaneously with the Indian Constitutional Law and Philosophy Blog. Their earlier post can be accessed here)

Disclosure:

The authors are both arraigned as accused under UAPA and are still in judicial custody and make no pretensions to being "unbiased" or “neutral” with respect to issues discussed herein. This, however, is not to imply that their position had been or would have been different had they not been charged under UAPA. 

Acknowledgements

The authors wish to express their gratitude to their co-defendants for sharing the brunt of the Zahoor Watali judgement. The indebtedness of the primary author to Vernon Gonsalves, who all but co-authored this article, cannot be adequately expressed. The germs of this article must have been sown while they were confined together in a quarantine barrack amidst pathogens more lethal. The part on “per incuriam” would have been impossible had Vernon not magnanimously shared his legal notes. None other than the authors are guilty for any of the shortcomings

The judgement in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 [“Watali] was delivered by the Supreme Court on 02.04.2019. Ever since then, procuring bail for a person accused of an offence under Chapters IV or VI of the Unlawful Activities (Prevention) Act, 1967 (UAPA) has been, to borrow an illustrative simile used by Abhinav Sekhri, like asking a person to swim after throwing him in deep water with both his hands tied behind him. Subsequent to this, a Three-Judge Bench of the Supreme Court delivered another judgement on 01.02.2021 concerning the jurisprudence of bail under UAPA - more specifically with respect to the question of the interplay of the right to speedy trial and Section 43-D(5) of UAPA (i.e. the restrictive bail clause) - in the case of Union of India v. KA Najeeb AIR 2021 SC 712 [“Najeeb”].

Akin to the Frostian roads that diverge, these two landmark judgements take different, though not contradictory, approaches to the issue at hand. As the Delhi High Court observed, Najeeb “lays down the constitutional approach arising from Article 21, whereas Watali (supra) explains the statutory approach arising out of Section 4-3(D)(5) of UAPA” (para 21 of Mohamad Hakim v. State (NCT of Delhi) 2021 SCC Online Del 4623. Najeeb harmonizes “the restriction under a statute as well as the powers exercisable under Constitutional Jurisdiction” by holding that 

“... at the commencement of proceedings, courts are expected to appreciate the legislative position against grant of bail but the rigours of such provision 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…”

(para 18 of Najeeb)

Thus, the settled position of law at present is that the restriction on grant of bail will hold at the initial stages, but as time progresses the statutory restrictions, which “draw this justification on the premise that trial in such cases would be concluded expeditiously” melt down as observed by the Bombay High Court in Vinay Vivek Aranha v. Union of India and another, (BA 2641/2021). However, the attempt to harmonize these two divergent approaches, we argue, misses certain fundamental anomalies in Watali. 

Per Incuriam and Sub-Silentio

That a decision rendered in ignorance of a relevant statutory position is deemed to be per incuriam is a well-settled fact. It is also accepted that a decision reached per incuriam would “demand the decision of its precedent value” [Para 183 of AR Antulay v. RS Nayak (1988) 2 SCC 602)].

Similarly, a “decision passes sub-silentio when the particular point of law involved in the decision is not perceived by the court or present in its mind” [Salmond on Jurisprudence, 12th Ed., page 153, quoted in State of UP and Anr. v. Synthetics and Chemicals Ltd. & Anr. (1991 4 SCC 139 (Para 41)]. The “Supreme Court may not be said to declare the law on these subjects if the relevant provisions were not really present to its mind” [Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court (1980) 3 SCC 682)].

It is our contention that Watali is both per incuriam and sub-silentio in that on the one hand it ignores certain statutory provisions while on the other it overturns a finding of the impugned judgement of the Delhi High Court without referring to the statutory provision or providing any argument against the view taken by the High Court. 

Let us begin by quoting the Section 43-D(5) of UAPA in order to demonstrate our claims:

“Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapter IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” [Emphasis supplied]

Para 23 of Watali states:

“By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise.”

However, what Watali ignores is that Section 2(d) of UAPA defines the Court as follows:

2(d) “‘Court’ means a Criminal Court having jurisdiction, under the Code, to try offences under this Act and includes a Special Court constituted under section 11 or under section 22 of the National Investigation Agency Act, 2008.”

That is to say, on a plain reading of Section 43-D(5) in conjunction with the definition of “Court” in Section 2(d) of the UAPA, it is clear that Section 43-D(5) is talking about the courts that have the jurisdiction to try the offences under the Act, and not the superior courts.

While moving the UA(P) Amendment Bill 2008 (which inserted the Section in question) in the Lok Sabha on December 17,2008, the Union Home Minister P Chidambaram stated:

“...This is one provision that I would like to draw your kind attention. We are saying that if on a perusal of the case diary or the report under Section 173 that is the final report or what we call the challan the court is of the opinion that there are reasonable grounds for believing that the accusation against a person is prima facie ture, then and then alone can be bail be refused…. Again, the High Courts and the Supreme Court have ample powers and this does not, in any way bind the High Courts and the Supreme Court, they will apply mainly to the trial court.”

[Lok Sabha Debates: Combined discussion on the Motion for Consideration of the National Investigation Agency Bill, 2008 and the Unlawful Activities (Prevention) Amendment Bill, 2008 (Bills Passed)... on 17 December 2008]

It may be noted that the Prevention of Terrorism Act, 2002 (POTA), after the repeal of which UAPA was recast as an anti-terrorism law and from which most of the anti-terrorism provision were imported to UAPA, did not make such a distinction between courts that have jurisdiction to try offences under the Act and other courts with respect to the power to grant bail. Neither do any of the other special laws that have similar restrictive bail clauses. Section 49(7) of POTA, the Section that restricts the power of the court to grant bail, refers to the “Court”, but there is no definition of “Court” in the Act. Section 2(f) of POTA defines only “Special Court”.

To be fair to Watali, no judgement of either the Supreme Court  or of any of the High Courts seems to have delved into the issue of the statutory restriction on the power of Constitutional Courts to grant bail. However, prior to Watali, courts have granted bail without demurring on the restriction on their powers to grant bail imposed by Section 43-D(5) of the Act. Thus in decisions delivered in 2016 and 2017 [in cases of Angela Harish Sontakke v. State of Maharashtra (2021) 3 SCC 723 and Sagar Jataram Gorkhe v. State of Maharashtra (2021) 3 SCC 725)], the Supreme Court granted bail without going into the restriction imposed by section 43-D(5). Post Watali, High Courts and the Supreme Court begin to act as though their hands are fettered by Section 43-D(5) UAPA in spite of the clear and unambiguous definition in the Act.

For instance, in Soma Kanti Sen v. State of Maharashtra & Anr. (Cr.A. No. 2595/2023), the second supplementary chargesheet was filed after the trial court rejected the bail application, and the High Court, while sitting on appeal, directed the appellant to approach the trial court as it was the appropriate forum that should first appreciate the (new) evidence. The Supreme Court in appeal against the High Court order held that while the High Court was right in its position that the trial court was the first forum to appreciate the evidence, it also had every right to appreciate the evidence as the appellate body. It was further held that as the Supreme Court was sitting on appeal, “the same appellant jurisdiction which vested in the High Court will vest in the Supreme Court” (para 15). Thereafter, while examining the case for bail on merit, the Apex Court does not clarify that it is not bound by Section 43-D(5) of UAPA, but goes on to examine whether offences under Chapters IV and VI UAPA are applicable to the facts, as the restriction under Section 43-D(5) kicks in only in case of such offences. That is to say, the whole exercise is undertaken under the assumption that Section 43-D(5) construes the powers of the Supreme Court to grant bail on merit. 

No doubt, courts have been categorical in holding that statutory restrictions cannot nullify constitutional powers. Therefore, it is well settled that the right to speedy trial (recognised as a facet of Article 21 of the Constitution) will override the statutory restriction imposed by Section 43-D(5) in case of long incarceration. The irony, however, is that the Statute itself imposed no such restriction. Just as Section 437 of the Code of Criminal Procedure, 1973 / Section 480 of the Bharatiya Nagarik Suraksha Sanhita, 2023 imposes a restriction on the powers of a Magistrate in the case of offences punishable with death or imprisonment for life if there are reasonable grounds for believing that the person is guilty of such offence, Section 43-D(5) of UAPA imposes a restriction on the powers of the trial court and not of the High Court and Supreme Court. 

In fact, the question of the exclusion of the jurisdiction of the superior courts by legislation was one of the issues before a Constitutional Bench of the Supreme Court in the context of Section 25 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (restricting) the power of the High Court to entertain petitions under Article 226 of the Constitution) in Kartar Singh v. State of Punjab (1994) 3 SCC 569. The Constitution Bench held that the power of the Constitutional Court, which is on a higher pedestal, cannot be divested under a statute albeit with a cautioning that such power should be undertaken only in rare and exceptional cases. 

While interpreting the proviso to Section 43-D(5), Watali says “ the totality of the material gathered by the investigation agency and presented along with the report and including the case diary, is required to be reckoned…” (Para 27, emphasis supplied). When the Statute expressly uses the disjunction ‘or’ in the Section (“case diary or the report made under section 173 of the Code”), Watali changes the connecting word to the conjunctive ‘and’. Admittedly, ‘or’ can be read in certain contexts. However, there has to be a reasoning given for such an interpretation, especially since the impugned High Court judgement (supra) has offered the following reasoning:

“34…(iii)...what the trial Court will peruse is the case diary ‘or’ the chargesheet under S.173 CrPC. At a stage prior to the filing of the charge sheet, the case diary can be looked into by the trial court to find out the progress of the investigation and about the material gathered against the accused persons. The charge sheet is the culmination of the analysis of the investigation officer (IO) of all the material gathered and reflects his opinion about the guilt of the accused. Although it is argued by Mr. Luthra that the trial court could peruse both the case diary as well as the charge sheet, the legislative intent is clear that once a charge-sheet has been filed, the trial court will look to the charge-sheet as it is the expression of opinion formed by the Investigation Officer (‘IO’) after analyzing the evidence that has been gathered, all of which ought to have been referred to in the case diary.”

Thus, when the statute uses ‘or’ and the impugned decision makes a reasoned argument for interpreting it as ‘or’, and not as ‘and’, Watali gives no reasoning for arriving at a decision to the contrary. In fact, it cannot even be said that Watali arrives at a different finding. It just appears that the Court is unmindful of the difference - a classic case of sub-silentio. 

The Loss of Reasonableness

What is hailed as Watali’s most significant contribution to bail jurisprudence in UAPA, which perhaps has inflicted the biggest dent on the rights of the accused by prolonging incarceration, is its interpretation of what it means when Section 43-D(5) says that the Court shall not release the accused person on bail if it “is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” [Emphasis supplied]

It may be noted that the particular formulation of the restrictive bail clause in UAPA (which requires the court to find reasonable grounds for believing that the accusation is prima facie true) is different from restrictive bail clauses in other special statutes like Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS), Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Section 45(1) of the Prevention of Money Laundering Act, 2002 (PMLA), or even Section 49(7) of the repealed POTA, where the requirement is for the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. Certain decisions like Shamil Saquib Nachan 2013 ALL MR (Cr.) 2273 have held that there is “no basic difference in the practical application of these provisions in spite of the difference in the phraseology" (para 27). We shall not engage in a comparison of the restrictive bail clauses of different statutes, but shall show that Watali has not appreciated the restrictive bail clause of UAPA in its right perspective. 

The essence of Watali’s exegesis is captured in the passage quoted below:

“23. …the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused ‘not guilty of such offence’ as required under the other special enactments. In any case the degree of satisfaction to be recorded by the court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.” [Emphasis supplied]

The line of reasoning cannot be more clearly expressed than this. A very strong suspicious framing of charge; and that very strong suspicion leads to the assumption that “reasonable grounds” exist to believe that the accusation is true. 

Abhinav Sekhri in a study of the restrictive bail regimes notes that when the clause restricting the powers of the Magistrate to grant bail in cognizable offences was first introduced in the Criminal Procedure Code of 1898, the “material which formed the basis of applying the test [of reasonable grounds] was fundamentally different” (“Jail is not the rule -  A history of restrictive bail regimes”, March 4, 2024, “Proof of Guilt”). The committal hearings under Section 206 of the 1898 Code ensured that the prosecution witnesses were examined on oath and subjected to cross examination before a Magistrate was to form an opinion about the existence of reasonable grounds. When committal hearings were done away with following the 1973 Amendment of the Code, the same exercise of arriving at a finding of reasonable grounds came to be based on “unsigned unsworn statements by the police officers which the law itself declares ought not to be used as substantive evidence”. Thus, Sekhri argues, a “jurisprudence of suspicion” came to dominate bail hearings. 

Watali not only cements the “jurisprudence of suspicion,” but equates the degree of satisfaction required to reject bail to the level of the one necessary to frame charge, or even lower as we shall show. The significant difference in the language used with respect to framing of charge in Sections 228 and 240 of CrPC and Section 43-D(5) of UAPA seems to have escaped the learned judges. The former says framing of charge is to be done if the Magistrate/Judge “is of opinion that there is ground for presuming that the accused has committed an offence…” while the latter requires the Court to have “the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” That is to say, there are two crucial differences between both: (i) The latter qualified “grounds” with “reasonable” while the former has no such qualification, and (ii) the former talks about “presuming”  while the latter is about “believing”.

“Reasonable” is defined as “fair, practical and sensible” and “acceptable and appropriate in a particular situation” (Oxford Advanced Learner’s Dictionary of Current English, 9th Ed.). The phrase “reasonable grounds” occurs in many penal statutes, and there have been many judicial pronouncements on its import. Both in Union of India v. Shiv Shankar Kesari (2007) 7 SCC 798 with regard to Section 37(1)(b)(ii) of the NDPS Act and in Chenna Boyanna Krishna Yadav v. State of Maharashtra (2007) 1 SCC 292 in the context of Section 21(4) of MCOCA, the Supreme Court has held that reasonable grounds “means something more than prima facie ground” (Para 7 of the former and Para 13 of the latter).

“To presume something” in its plain meaning is “to suppose that something is true although you do not have proof” or “to accept that something is true until it is shown not to be true” (Oxford, supra). Believing requires a more degree of certainty. The dictionary meaning is :to think something is true or possible” or “to have an opinion” that something is true. The distinction should be clear if we think of presumption of innocence. An accused is only presumed to be innocent, not believed.

A careful reading of Watali would reveal that it is the total disregard of the qualification “reasonable” that leads to the lowering of the bar for finding the accusation to be prima facie true. While the prima facie test is expounded in several paragraphs, not a single drop of ink is spent on understanding the import of what counts as “reasonable grounds” in Watali. It is our contention that without applying the standard of reasonableness, the test to determine whether the accusation is prima facie true becomes nothing more than an exercise to establish a “prima facie case”, which is defined as “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted” [Anees v. State Government of NCT, 2024 Cri LJ, para 49]. Or in other words, it means that “a legal claim has sufficient evidence to proceed to trial or judgement” (ibid). If there is no prima facie evidence, the initial claim is dismissed. 

At the core of Watali’s reasoning is also the principle that “the issue of admissibility and credibility of the material and evidence presented by the investigation agency would be a matter for trial” (para 52). What persuades the learned judges to accept this line of argument is nothing more than the “force of the learned Attorney General” (ibid). A pertinent question is whether reasonable grounds for believing something is true can be founded on material that is neither credible nor admissible. Watali does note that Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 says:

“46. …the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgement of conviction…”

However, since the only operative expression for Watali is “prima facie true”, and since the Attorney General makes forceful arguments, Watali is swayed to accept documents presented by the investigation officer as it is. 

It may be noted that more recently in Arvind Kejriwal v. Directorate of Enforcement 2024 Cri LJ 3531 the Supreme Court while dealing with bail under PMLA held that in the context of considering bail application, “[a]ll material and evidence that can be lead in the trial and admissible, whether relied on by the prosecution or not and can be examined” (para 46) as “41. …Guilt can only be established on admissible evidence to be led before the court, and cannot be based on inadmissible evidence…”

The same judgement also noted that the parameters of stipulation relevant at the time of framing of charge will not apply when the issue is of grant or denial of bail (para 46)

         

When all that is required of the court is to look at the contents of the documents or the evidence presented by the investigation officer and take them into account as it is on the basis of broad probabilities regarding the involvement, the accused in the commission of the alleged offence as outlined in paras 24 and 27 of the judgement, the degree of satisfaction required is nothing more than establishing a prima facie case. This is evident in a more recent decision of the Supreme Court [Union of India v. Barkathullah etc.  2024 Cri LJ 3183].

The legal dictum while dealing with stringent laws have always been “graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act” [Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. AIR 1994 SC 2623 (Para 14)]. Some of the High Court decisions prior to Watali have been more circumspect in applying the prima facie test. The Bombay High Court in Shamil Saquib Nachan (supra) did acknowledge that “judging the existence of a prima facie case at the stage of bail would not be the same as judging the existence of a prima facie case for proceeding against an accused for framing a charge” (para 27). The High Court goes on to reiterate 

“28. …It is too obvious that an accused would never be required to put forth a stronger case for bail, than would be required for discharge. The tests that are applied at the time of bail cannot be as rigorous as are applied while considering the discharge of an accused from a particular case."

In what is perhaps the most brilliant exposition of Section 43-D(5) with respect to the question of discharge, a Full Bench of the Guwahati High Court holds as follows in Rajen Boro & Ors. v. NIA & Ors. MANU/GH/0420/2016:

“26. …if there is a strong suspicion about the culpability of the accused, that would be sufficient for the court to frame charge against the accused under 228 CrPC. However, while considering bail of a person arrested on an accusation of having committed an offence under Chapters IV and VI of the ULAP Act, the Court must not only form an opinion that the accusation against the accused in prima facie true but such opinion has to be based on reasonable grounds, which have been explained to mean something more than prima facie grounds, contemplating substantial probable causes for believing that the accused is guilty of the accusation. Thus, the standard of scrutiny in both the fields are different. While there is strong suspicion at the stage of framing of charge, on the other hand, while considering bail under section 43(D)(5), it is something more than prima facie grounds for believing that the accused is guilty of the alleged offence. In other words, the standard of scrutiny to determine prima facie correctness of the accusation against the accused while considering bail under Section 43D(5) is much higher than at the stage of framing charge.”

Thus, while both the High Courts have been arguing for raising the standard required for holding that the accusation is prima facie true, Watali traverses a diametrically opposite direction without offering any valid argument and in complete disregard of the express wording of the Statute. 

Watali also seems to be oblivious of the discretionary power of courts in bail jurisprudence and operates as though the courts were denuded of all such powers although it is professed that it takes guidance from the judgement of a three-judge bench of the Supreme Court, which, while interpreting the restrictive bail clause of MCOCA, warned that the “restraint of the power of the court to grant bail should not be pushed too far” [(Para 38 of Ranjitsing, supra). Watali seems to be impervious to the warning Rajen Boro (supra) was also categorical in that it cannot be “overlooked that grant of bail is a discretionary power conferred upon the Court” (para 30).

 

Thus, we see that while Watali ignores both statutory provisions and binding precedents, Najeeb steps in with the constitutional safeguard against long incarceration. However, both the judgments seem not to have taken into consideration that the statutory restriction does not bind constitutional courts, and, therefore, they are not constrained by the “prima facie test” spelt out in Section 43-D(5) UAPA while deciding bail applications on merit. Even the attempt in Vernon v. State of Maharashtra and Anr. 2023 All MR (Cri) 3082 SC to undertake a “surface analysis of probative value of the evidence” and the stipulation that the probative value should satisfy the court, though significant, only operates within the constraints of Section 43-D(5) of UAPA (para 36 of Vernon). The approach in Vernon may be a step towards acknowledging that the prima facie test adopted by Watali is flawed and inadequate unless conducted in the light of reasonable grounds. Long and ominous are, still, the shadows cast by Watali.