A Curious Constitutionalism - Sheikh Javed Iqbal and Bail in UAPA Cases

On July 18, 2024, a Division Bench of the Supreme Court decided the appeal in Sheikh Javed Iqbal v. State of Uttar Pradesh [2024 INSC 534 ("Sheikh Javed Iqbal")], allowing the appeal and granting bail to a person accused of having committed offences under Sections 489B, 489C of the Indian Penal Code 1860 [IPC] and Section 16 of the Unlawful Activities (Prevention) Act 1967 [UAPA]. Notably, the accused had been in custody for more than nine years. Charges had been framed and his trial was pending, but only two prosecution witnesses had so far been examined when the bail was heard by the Supreme Court.

The observations at Paragraph 32 of the judgment merit reporting in full:

"This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence."

If you do not pay close attention, the paragraph reads like a sonorous tribute to law safeguarding personal liberty, with repeated incantations of "Constitution", "Constitutional Court" and "Constitutionalism" for good measure. It is only once you pay close attention do you realise that the paragraph is, in fact, hot air. A straw-man is put up — statutory provisions curbing constitutional rights — and is then knocked down with flair. 

Similarly, the observations at Paragraph 28.2 from Sheikh Javed Iqbal that an earlier judgment on bail in UAPA cases, Zahoor Ahmed Shah Watali, "cannot be cited as precedent to deny bail in UAPA cases where the accused has suffered long incarceration", are again a straw-man. To say that Watali can't be used for this purpose is to not really say anything of note because it obviously cannot be used as binding precedent for this purpose since it never said anything about delayed trials and lengthy incarceration. What Watali  stands for is a judicial approach which justifies giving the prosecution a wide berth to deny bail in UAPA cases. If anything, to understand how Sheikh Javed Iqbal treats Watali what is more relevant is Paragraphs 27.2 and 28.1, which show that rather than watering down Watali the new judgment reinforces the legal correctness of the approach in Watali for deciding bail under UAPA cases. 

What Sheikh Javed Iqbal does is to restore the primacy of the curious constitutionalism that the Supreme Court has consistently displayed an adherence to when it comes to bail especially in UAPA cases besides some other categories as well, where Article 21 somehow shines much brighter once a person has suffered lengthy incarceration. That the Court in Sheikh Javed Iqbal had to offer such a lengthy justification to invoke this approach is only because five months ago in Gurwinder Singh a different bench of the Court decided that even this was too much liberty to swallow when it came to UAPA cases.  

Paragraphs 22 to 29 of Sheikh Javed Iqbal give us a concise history of this stream of Article 21 logic. I call it a curious constitutionalism because it is not invoked to justify a consistently robust take on how courts must review the prosecution's presenting a prima facie case for denying bail. It is not invoked to explain legal intricacies — for instance, how to deal with UAPA bails once charge has been framed. Instead, this curious constitutionalism with its ode to Article 21 shines through only once an accused has served a meaningfully long period of incarceration as an undertrial. It is also invoked in a restrictive sense, by emphasising the constitutional courts powers and in one fell swoop justifying restrictive approaches for our trial courts. After giving the state enough time to try and run its case with the accused behind bars, a Court — not a trial court mind you — turns around and now tells us that enough is enough and the person must be freed because now the Constitution would be sullied by continuing his custody.  

This is not constitutionalism, but a jurisprudence of apology, of doling out mercy as and when deemed fit. Let us not pretend otherwise. 

BNSS Repeal and Savings - Initial Views

Section 531 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] states that:

531. Repeal and savings.—

(1) The Code of Criminal Procedure, 1973 (2 of 1974) is hereby repealed.

(2) Notwithstanding such repeal—

(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;

(b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;

(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.

(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time.

Note that the date on which the Act came into force was 01.07.2024. With that in mind, the following points emerge:

• The 1973 Criminal Procedure Code stood repealed with effect from 01.07.2024.
• In case of every pending "appeal, application, trial, inquiry or investigation" as on that date i.e. 01.07.2024, such appeal shall be disposed of, application continued, trial held, and inquiry or investigation made, in accordance with the 1973 Code.
• Practically, action taken under the old Code in the form of issuing proclamations or passing sentences or orders, shall be deemed to be passed under the provisions of the BNSS.
• Sanctions granted under the old Code shall be deemed to be granted under BNSS for proceedings to commence under BNSS
• Nothing in the BNSS will extend limitation periods, where such periods had been prescribed under the 1973 Code and had expired prior to the enforcement of the BNSS.    

The decolonisation project of the BNSS is of such ferocity that it has adopted the identically peculiar and confounding language of the repeal and savings clause of Section 484 of the repealed 1973 Code. It comes as no surprise therefore that a clause which caused a fair degree of confusion in the decades after April 1974 has begun to spread the same mischief in 2024. 

This post tries to do three things. First, as always, it gives a little bit of context, and turns to the repeal and savings process under the 1973 Code. It is difficult to predict whether we are in for a lesser degree of trouble thanks to the scarcity of change brought about by the BNSS as compared to the changes which the 1973 Code brought about in its day. Second, it culls out some very broad principles to help navigate the issue of which is the regime to apply. Third, it tries to unravel that sense of certainty about setting rules of thumb by looking at the kinds of issues that may crop up in deciding which regime to apply. 

Repeal and Savings in the Aftermath of the 1973 Code.

The 1973 Code came into effect from 01.04.1974; perhaps somebody's idea of an April Fool's play on the entire legal fraternity which would grapple with issues about which legal regime governs criminal cases for the better part of a decade thereafter. 

Section 484 of the 1973 Code gave us the formula which Section 531 of the BNSS has adopted, whereby in pending appeals / applications / trials / inquiries / investigations the old law prevails. Such a clause is, in fact, an exception to ordinary rules of statutory interpretation whereby procedural laws are always given retrospective effect. No person has any vested right in the procedure by which the law works, so the idea goes. Which is why Section 6 of the General Clauses Act 1897 primarily concerned itself with statutes that touched matters of substantive law and only had fleeting things to say about procedural or adjectival laws.

So far so good. What was the deviation from general law? Did Section 484 safeguard applicability of the old 1898 Code in its entirety to all cases that may have been pending as on 01.04.1974? It did not. Instead, what Parliament attempted was to divide a criminal proceeding into various constituents or stages: appeals / applications / trials / inquiries / investigations. Where such a stage was pending, the old law continued to govern its disposal. When that stage ended, then the next stage would be governed by the new law. So, for instance. An FIR was lodged on 01.03.1974 and investigation was pending on 01.04.1974. Section 484 required that investigation continues to be governed by the old 1898 Code, but once the police report is filed, then anything subsequent would be governed by the new Code. I will come to this again in the next section.

Why did Section 484 cause so much litigation? A part of it is down to language, as the third section in this post will discuss, but a big reason was the sizeable changes brought about to the criminal process. There were notable changes at all stages: default bail in investigations, truncating committal proceedings at trial, significantly curbing scope of revisions. Then there was the administrative shake-up with a stricter degree of separation between executive and judiciary, and modification of the magistracy as well. All this meant that litigants now had a lot to gain or lose on the basis of which procedural regime governed their fates.

I would argue that there are comparably fewer changes brought about by the BNSS in terms of quantity. There is very little development on separating the executive and judiciary further. No real changes have been made to the appellate process. Trials look the same barring non-enforceable time limits. This makes for good reading, and a hope that litigation will be smoother to adjust to the change. But, at the same time, it is arguable (and this is the view I subscribe to) that the BNSS brings about some qualitatively massive shifts to the 1973 regime. The digitisation of investigations, the attachment and confiscation of properties suspected to be derived from crime, introduction of new opportunities for accused persons to be heard, trials in absentia, subtle but significant shifts on recording evidence, a potentially devastating annulment of one species of default bail, and the straitjacketing of the mercy plea process — all of these are hugely significant changes in areas that may be bitterly contested in courts for years to come. 

One would hope that the judiciary sets aside the time that these cases will require to help usher in clarity on the BNSS as fast as possible.   

 

Thumb Rules to Navigate Choppy Waters

Going by the interpretation of Section 484 by various High Courts and the Supreme Court as well as the reports issued by committees at the time, it is possible to try and arrive at some broad thumb rules to help navigate choppy waters at least for the time being till courts interpret Section 531 of the BNSS. 

With a great degree of trepidation, I would argue that ordinarily:

• For FIRs lodged after 01.07.2024, the BNSS applies.
• Where an FIR was lodged before 01.07.2024, the 1973 code will apply till investigation ends. After that, the BNSS applies.
• Pending trials will be governed by the 1973 Code. Post their conclusion, the BNSS will apply.
• Pending appeals / revision petitions etc. as on 01.07.2024 would be governed by the 1973 Code.
• Proceeding before appellate courts in pending trials — say, revision / quashing petitions etc. — will operate under BNSS and not the 1973 Code.
• Where a trial had concluded prior to 01.07.2024, an appeal would have to be filed under the BNSS and not the 1973 Code.
• Persons sentenced by judgments dated prior to 01.07.2024 would be deemed to be sentenced under the BNSS, and their subsequent remission / mercy etc. proceedings would be governed by BNSS.  

Subject to the exception that where 'vested rights' are at play, the change of law cannot be to a person's detriment. 

So, to reiterate, Section 531 BNSS does not mean that everything in the life of a case registered prior to 01.07.2024 shall continue to be governed by the 1973 Code. Judgments which conclude otherwise and do so without engaging with the law under Section 484 of the 1973 Code are arguably incorrect as well as per incuriam.

The Huge Asterisk Following the Thumb Rules

Looking at the litigation surrounding Section 484 of the 1973 Code, the one clear lesson which emerges is that splitting up the criminal process into five constituents — appeals / applications / trials / inquiries / investigations — was a method of remarkable inexactitude to execute the task of shifting litigation from the old regime to the new. 

This inexactitude issue operates at two levels. First, most of these words are either not defined anywhere or when defined they have circular meanings which are not usable for this specific task of identifying a stage in the life of a case. Which means that courts are left with the task of conferring meaning upon these terms and, naturally, this invites differences of opinion. One court may think trials are everything in the life of a case from the moment cognizance is taken. Another court may disagree and say that trials only start when the accused is brought to court. Yet another may disagree with both of them and conclude that only after a charge is framed that trial begins. So how do we consistently decide when the old law is to be consigned to oblivion and the new law ushered in during the life of a litigation?

The second level at which the inexactitude issue operates is linked to the first, in that there are a lot many stages besides these five which are relevant to the criminal process. As a result courts are left with the task of shoehorning these other parts of the process into one of the five identified categories. So, are revision petitions appeals or are they applications? What about private complaints where accused have not yet been summoned — are they pending applications or inquiries? What about protest petitions? What about all of the post-trial procedures? And so on. 

There is then the issue of vested rights which I identified in the previous section. The ordinary rule that the procedural law retrospectively applies is qualified by this exception that it cannot disturb vested rights. It was an issue which led to conflicts on how to treat Section 484 when it came to appeals in trials that had been going on under the old code — one view was to construe the right to file appeals as vested rights and thus appeals would continue under the old law, another view was that if there was no deprivation of the right itself then the procedure of the new law would follow. 

To decide whether a procedural rule had cast a vested right or not is, thus, a point of judicial interpretation since nothing in Section 531 of the BNSS explicitly says that "XYZ clause shall continue notwithstanding any change" in some scenarios. One clear category which comes to mind in this conversation about vested rights is Section 436A of the 1973 Code which defined one species of default bail where persons who had been incarcerated for more than half their maximum sentence pending trial were entitled to bail. Section 436A of the earlier code has been dramatically modified under Section 479 BNSS. So did a person who is arrested prior to 01.07.2024 have a vested right insofar as Section 436A was concerned, such that the new clause cannot deprive them of that right even though trial was very far on the horizon?

Appendix

These are only some issues. Many others are likely to emerge as the new codes are implemented in earnest and the three sets of repeals and savings clauses across the new codes are read together. As a result, the asterisk at the end of the thumb rules is probably going to become even bigger in size.

As a supplement, this post ends with a small, in-exhaustive list, of judgments rendered under Section 484 of the 1973 Code which readers may find helpful and hopefully courts can turn to this clause sooner rather than later:

Supreme Court:

• Natabar Parida — AIR 1975 SC 1465.
• Boucher Pierre Andre — AIR 1975 SC 164.
• P. Philip — AIR 1976 SC 1185.
• K.H. Annegowda — AIR 1977 SC 357.

High Courts:

• Haridas Mundhra — 1974 Cri LJ 1341 (Cal HC).
• Hiralal Nansa Bhavsar — 1976 Cri LJ 84 (Guj HC).
• Janardan Sarvottam Rao — (1976) 78 Bom LR 380 (Bom HC).
• Mayadhar Paik — 1978 Cri LJ 1054 (Ori HC).
• M. Prasad — 1978 Cri LJ 63 (AP HC).
• Asharfi Sao — 1979 Cri LJ (NOC 109) 53 (Patna HC). 
• Jawaharlal Shamlal — 1979 Cri LJ 530 (Bom HC).
• Mohd. Ameer — 1979 Cri LJ 247 (AP HC).

 

The Lady Chatterley Prosecution: Article Update

A draft paper is now up on SSRN here, retelling the story of the persecution and prosecution of the unexpurgated edition of Lady Chatterley's Lover by D.H. Lawrence. It is more legal history than anything else, looking at the archives to share a ringside view of how the levers of state power operated over a few years, culminating in the decision of the Supreme Court in 1964. 

The abstract is below:

Come August 2024, it will be sixty years since the Indian Supreme Court delivered its verdict upholding the prosecution and conviction of the proprietors of one Happy Book Stall of what is today Mumbai under the offence of Obscenity punishable under Section 292 of the Indian Penal Code, 1860. Their crime? Stocking and selling unexpurgated editions of Lady Chatterley’s Lover [‘Chatterley’] by D.H. Lawrence to the unsuspecting public of the city.

The Supreme Court’s decision in Ranjit D. Udeshi v. State of Maharashtra is only the conclusion in what is a fascinating tale of how Chatterley was treated by the Indian government and courts. A tale which involves the highest echelons of power, bogey purchases by police officers in disguise, and three lengthy judicial verdicts that are united not in their reasoning but only in their conclusion that the unexpurgated edition of Chatterley was obscene.

You may, at this point, be thinking: “Fine, but why bother with a sixty-year-old case?” and would be justified in entertaining these doubts. Once you look at what is written about this sixty-year-old case in India, though, those doubts should dissipate. Scholarship has, thus far, focused solely upon the legal lifting done in the Supreme Court’s judgment, criticising the Court for blessing a test that unduly restricted freedom of speech and expression. Outside of this scholarship, precious little has been written about the persecution and prosecution of Chatterley in India, and this is a gap which I try to address. Looking at government files, newspaper reports, and the verdict of the court of first instance besides appellate court judgments, the paper offers new perspectives on how the state machinery operated to censor Chatterley in India.

 Comments welcome!

The Price of Liberty

There is not a lot of intelligent comment, critique, or engagement possible with laws that claim to be something new, but which are, in fact, little more than badly aged wine in gaudy new bottles. The laws are so terribly lacking in anything new of substance that even the opinion pieces have become monotonous even as they have been frequent. The bottom line is pretty straightforward: No decolonisation, sketchy reform, largely copy-paste with a little dash of the draconian here and there, and an Indic spice to make it look Indian (make sure you fix all those old illustrations referring to foreign lands in the Evidence Act, dear Draftsman).

I do not want to add to this. I wish I had no truck with this, but that is impossible. Instead this piece is just going to share a sense of anguish. What pains me is the thought that come July 1, the citizenry will yet again be stripped of its decency and turned into little more than subjects. Subjects, who will now be the lab rats upon whom the latest 'good idea' of the despots in power is to be tested. Because if one thing is clear from all the publicity blitzkrieg that the government is trying out, it is that the state machinery in-charge of enforcing the new laws — police, judges, government officials — are either still being trained to do so, or in some parts have probably not even started to do so. 

I am not even going down the path which questions the claims of training. As someone who has seen a few official 'up-skilling' and 'training' programs, let's just say that a few dozen of such sessions, not merely a few, are required to train someone. Nor am I going too much into what is being imparted at these trainings; which if the puff-pieces are correct is seriously troubling. Take just one example. Both India Today and The Hindu (amongst others) have reported that one of the changes about which officials are being taught is that "police custody has been increased from 15 to 90 days" (one adds that this is "depending on the gravity of the offence"). Rather than clarify the shoddily drafted clause (section 187), the government is actively promoting its most draconian interpretation.   

I am still finding it difficult to move past the fact that the governments are openly admitting to the lack of preparedness in enforcing arguably the most important set of laws. At some level, you have to respect the honesty. The puff-pieces could have said that everything is ready and a new reality will dawn upon us. That they haven't, and still nobody is really too fussed about these new laws coming in (hardly front-page news it has been), is perhaps all we need to know about how seriously we are taking this paradigm shift that will hit us in the solar plexus in a few days. It is far from surprising, though. Crime, criminal law, and all such matters, are always something that concern the underclass of society, and not us, the respectables. It is the most routine from of 'othering' that we engage in. 

Many will soon stop protesting and secretly enjoy in the implementation of the new laws. It will give us great professional satisfaction in advising persons about their details, finding problems in their working, and some lucky ones will even be crafting arguments to help keep the laws form unleashing their draconian potential to the fullest. But during all of this, I hope we can do our utmost to first challenge, and later keep reminding ourselves and others, about the injustices we are likely to encounter. When some some poor young man from a religious or socio-economic minority becomes the first person arrested under the new laws, please do not just log that as a fun fact or data point or a headline (yes, I am looking at you, news media). Stop and think about how this unfortunate person, and other such 'common criminals', are going to be processed by the semi-trained state machinery on the conveyor belt justice served up in magistrate courts with police custody being granted for months. Until one fine day when the constitutional courts sit up and take notice as a fit case (read monied) reaches their doorsteps, and the law is clarified to tell us that police custody was not really possible for months after all. 

The price of liberty, as the saying goes, is eternal vigilance. It will take every ounce of collective strength to ensure that the price of liberty is respected in full by the state as it tries to bulldoze through its latest vanity project upon us, even though we know that not everyone is equally likely to be caught in the path of destruction.

Jail is Not the Rule - Restrictive Bail Conditions in the UAPA and PMLA

(This is the sixth and concluding post in a series on restrictive bail conditions in Indian law).

We are back where we started; the present. From a situation where restrictive bail clauses were only a part of the statute book to contend with legal emergencies, the years between 1980 and 2010 witnessed a gradual and steady decline in the imagined emergency threshold which would justify incorporating clauses restricting the discretion to grant bail. Today, as a result, there are at least ten laws at the federal an state levels (indicative list here). Amidst this morass of liberty-restricting legislation, two twin towers stand out — the Unlawful Activities Prevention Act 1967 ['UAPA'], and the Prevention of Money Laundering Act 2002 ['PMLA']. The terrible acronymic duo for the defence, and the most-trusted friends of the prosecutorial branch. 

They may not be the most statistically significant of crimes, but it is undeniable that these two pieces of legislation have today captured the public imagination in an unparalleled manner. Which is why for this post, I choose to focus only on these two laws as opposed to sticking with a more chronological take.

UAPA and Bail — Problems of Design, Problems of Application

We have met India's first anti-terror law, the Terrorist and Disruptive Activities (Prevention) Act 1985 ['TADA'], in the previous post. This law was infamous by the time of its repeal for becoming a tool to support untrammelled police power and permitting lengthy pre-trial incarceration. After a brief hiatus in which India had no dedicated anti-terror law came the Prevention of Terrorism Act in 2002 ['POTA'], which revived most of TADA's ills, and was repealed in 2004 following public backlash and change in government. 

Two anti-terror laws being cast aside within a decade suggests some instability in policy. Perhaps that is what prompted an approach which did not seek to erect an resurrect the same anti-terror framework which had held sway for the past two decades, and instead craft a different approach. If this was the idea behind using the 1967 UAPA to provide the basis for combating terrorism, its execution was rather poor; swathes of the TADA and POTA were simply lifted and added to the 1967 law by amendments in 2004. 

So much for a different approach, right? Not entirely correct. While large swathes were retained, parts of the erstwhile regime were unequivocally bunked. Confessions to police were admissible under TADA and POTA, but this clause was not retained in the UAPA. Most importantly for us, the 2004 amendments to the UAPA did not insert restrictive bail clauses. Nor did they insert clauses to lengthen permissible pre-trial custody pending an investigation. These all-too familiar features of the UAPA came at the end of 2008 after the terror attacks in Mumbai that year (along with the National Investigation Agency Act).

The debates surrounding the insertion of a restrictive bail clause in the UAPA make for very interesting reading. Sure, restrictive bail clauses were proposed, but the language was markedly different from the formula adopted in Indian legislation since the Second World War. The proposed clause did not ask that an accused convince a court that there were reasonable grounds to believe that she was not guilty, but instead it said that bail would not be granted "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". 

At the start of the discussion, the Minister (P. Chidambaram), noted the diversity of views on the issue and that their proposal represented a "fair balance". When it came to the specifics for the bail clause, the Minister made two notable points: first, the structure of the proposed clause required courts to test whether the police case was true, whereas "in POTA and other Acts, it was the other way round"; second, he noted that this restriction only bound the trial courts and did not restrict the discretion of either the High Court or the Supreme Court. Another member of parliament, Kapil Sibal, critiqued the usual formulation restricting bail by stating that "no bail could ever be granted" under the old law because "no court can come to the conclusion that the accused is not guilty" which is why his government "[had] not accepted that in the present law" (page 13).

On its optimistic reading, the UAPA gave us a new approach to restrictive bail clauses. It resolved one issue that the previous post identified—of placing a burden on the accused to get bail—by clearly placing a burden on the prosecution to satisfy the court that bail ought to be denied. Till here, the debates are with us. Where they do not provide any guidance, is on what threshold is the prosecution tested. Where other clauses required an accused establish reasonable grounds to believe they are not guilty, the UAPA required that the material should demonstrate the accusation was prima facie true. If the idea was to not construct an impenetrable barrier to bail, this threshold was meant to be a serious one. The material should be so strong that a bare reading, prima facie, convinces the court that bail ought to be denied. 

The standard lent itself much more easily to a view that the threshold cast upon the prosecution was a relaxed one, rather than a tough one to meet. All that the court needs to be doing is examine the prosecution material a little bit, to see that on the face of it a case has been made out. A close analogy could be seen with, say, the stage of framing charge where examining whether a prima facie case is made out is how courts had gone about their business. How often did charge get framed? In all but the rarest of cases. What else can we expect? As a Member of Parliament Asaduddin Owaisi put it, "What will the case diary say? Will it write flowers about the accused? The case diary will, of course, follow what is there in the charge sheet and what is there in the FIR." In other words, if the game is still rigged, how can we expect a different outcome simply by placing a feather-light burden on the prosecution?            

This failure to discuss the details of this prima facie true standard has proven to be the UAPA's achilles heel. It has given us a situation where more than fifteen years after the standard was inserted, courts are still unsure how to make it work. Some courts consider it is not exactly like framing charge, but admit that it would be very difficult to grant bail after framing charge given the similarity of the threshold. For some, the prima facie true test is the same as the 'not guilty' standard, for others it is an 'easier' burden for an accused to meet than this 'not guilty' test. Of course, imagining it as a burden on the accused itself buttresses the point about confusion in its application. It has brought us to the position where there is no consistency in how the law is applied across the country, with every decision the subject of great analysis. 

Except, of course, it applying consistently to deny bail to accused persons in all but the rarest of cases.

The PMLA — Old Wine, Devastating New Bottle

There were no such pretensions about introducing a new framework for restrictive bail clauses when it came to the PMLA. The 'not guilty' formula was adopted under Section 45 of the statute, and the problems with it which we identified in the previous post would thus remain applicable to the PMLA as well. As Mr. Sibal observed in Parliament, nobody ever gets bail under this formulation. Where the PMLA makes it harder is by allowing the agency to record confessional statements during an investigation, a tool that is not available in ordinary prosecutions by the police. 

But in addition to these issues, there is one aspect unique to the PMLA which deserves our attention and shows us that the issues here are of a different nature to those faced with the UAPA. Crucially, restrictive bail under PMLA originally did not apply to all cases. A brief recap about the PMLA regime is necessary here. Unlike most other crimes, money laundering is a parasitic offence, in that it requires that allegations of some prior criminal conduct to have generated proceeds of crime. Without proceeds of crime, there can be no money laundering. 

Till 2012, the PMLA followed an approach where it treated the many different kinds of prior criminal conduct differently. Any proceeds generated from some grave crimes, such as drug-trafficking, murder, terrorism, etc., would be liable for additional prosecution under PMLA. For many other kinds of crimes which may generate proceeds of crime—say cheating, for instance—PMLA applied only if allegations crossed a monetary threshold. There were inbuilt safeguards, of sorts, to limit the catchment of PMLA as it was originally enforced. When it came to its restrictive bail regime, there were further safeguards. The harsh regime only came into play for the cases where the prior criminal conduct was the of the no-monetary-threshold / highly serious variety. And not all of those either, but only those section of cases where the underlying offence carried a possible punishment of at least three years. 

First in 2012, and then definitively in 2018, the PMLA eschewed this approach of inbuilt safeguards and restrictive application, to transform into the present-day juggernaut that it is today. From being applicable to only a handful of cases, the PMLA's transformation also brought with it a terrifying change in how deeply the harsh bail regime penetrated within the criminal process. Now, generation of any proceeds of crime, from any scheduled offence (a list that runs into more than 150 offences), is a possible crime under the PMLA, which would trigger the restrictive bail regime. It is not only a matter of reach. By artificially splitting the criminal act into two as the PMLA does, a person can be on bail while simultaneously be detained in custody for practically the same conduct. It throws up remarkable contradictions in that a restrictive bail regime is enforced in tandem with the ordinary law for the underlying criminal act where, in some cases, the prior criminal conduct might even be bailable implying that a person should never be in custody in the first place.

Old wine, in a devastating new bottle.

Conclusion: No Silver Bullets

There are no silver bullets which would magically fix the problems with restrictive bail clauses under the UAPA and PMLA, and all other laws for that matter. Sure, there are some common issues plaguing how the regime works in practice (see the previous post), which can be remedied to give us a fairer process. However, at the same time, there are very unique travails which afflict the regime under two laws that have assumed a pre-eminent position in the public consciousness when it comes to harsh bail clauses.    

I would argue that the UAPA is certainly better than other restrictive bail configurations, for it places a burden on the prosecution to justify why bail ought to be denied. Since the default position is in favour of personal liberty, it rightly requires the prosecution to justify why personal liberty ought to be curtailed for prolonged periods. Where it has failed, however, is in its prescription of precisely what the prosecution is required to establish. To justify continued detention after arrest, the prosecution gets to decide just how high its mountain will be and there is no objective threshold which the law is holding onto. No wonder that the prosecution often choose to erect relatively scalable molehills.

With PMLA, the terrifying feature is not the restrictive bail clause per se which is comfortingly familiar. It links back to a seventy-five year old tradition of courts devising ways and means to safeguard personal liberty in spite of such clauses. What the PMLA changes, and what makes it truly scary, is the vastness of its reach. If ever there is money associated with criminality, even relatively benign criminality, the PMLA can enter the room and transform the landscape. That ordinary cheating case is now a money laundering case, allowing the agency to record sworn statements from everyone including the accused, use them to arrest and condemn the person, who can only manage to restore liberty by convincing a court that the material against her, which now includes sworn statements and admissible confessions, is not making out a case for guilt. Tall order, if there ever was one.

 

This series began mainly because of the Indian Supreme Court remarking in a bail plea involving offences punishable under the UAPA that, for some offences where statutes carrying restrictive bail clauses such as UAPA, 'jail is the rule' and bail an exception. It was peculiar to see a tawdry prosecutorial submission being elevated to the place of judicial dictum. Surely, such an error could only occur due to a short-sighted view of the law, too focused on the present circumstances to think that these laws with restrictive bail clauses are extremely exceptional. Once we adopt a vantage point allowing a view of circumstances slightly outside our own narrow vista, and can see the development of this branch of law, it is crystal clear that even in a statutory regime carrying restrictive bail clauses, jail is not the rule.

This series demonstrated that even as the legal context in which they operate has dramatically changed over time, Indian courts have developed a wealth of experience to administer restrictive bail clauses in a manner consistent with the underlying judicial and legal commitment to the presumption of innocence which runs in favour of an accused. The changing legal context has certainly made the process much less fair with the passage of time, and even as our courts have helped to secure a just outcome, they have singularly failed to improve the fairness of the legal process around bail in these cases. The responsibility for which must largely lie at the door of the Supreme Court and its ahistorical appreciation of the law in Kartar Singh. 

The task for Parliament and courts is to urgently de-link the perceived need for restrictive bail clauses per se, with the need to retain the outmoded and oppressive restrictive bail clauses that were fit for a colonial populace. Our criminal procedures have dramatically changed in both form and substance over the course of eighty years since the Second World War, and our legal system is professedly guided by a fundamental assumption in favour of liberty as opposed to an assumption that law was beholden to power. Continuing with colonial legal formulations to condemn our fellow citizens to countless years of pre-trial custody has already left many indelible marks on the fabric of independent India's rule of law, with the custodial deaths of those presumed innocent such as the late Father Stan Swamy, and the countless years of life lost by nameless others who were eventually released on bail. 

If deprivation of liberty even for a single day is one day too many, how can the same constitutional fabric continue to uphold a set of rules which by design enable the unjustified deprivation of liberty for countless years on end? This is not a "puzzling dilemma" requiring we "balance both-sides", but an issue which has a blindingly obvious answer: a constitution respecting personal liberty in letter and spirit, simply cannot. 

Jail is not the Rule - Stating the Problem (Interlude)

(This is the fifth post in an ongoing series on restrictive bail regimes)

Restrictive bail regimes are arguably one of the most important issues in Indian criminal law and procedure. I use the term to refer to a swathe of statutory provisions through which the judicial discretion to grant or deny bail is curtailed, by mandating that such an exercise requires a court to formulate opinions about the merits of the case against an accused (wherever the prosecution opposes the request for bail). This usually presents itself in a formulation requiring courts must have "reasonable grounds to believe" that the accused is "not guilty of the offence" to grant bail. 

The previous posts in the series tried to locate these statutory clauses in Indian legal history. We looked at shifts in the kinds of criminal activity for which legislatures turned to such clauses, as well as shifts in the overall landscape of the general criminal procedure itself which had a bearing on how these clauses may well have worked in practice. Before we turn to the last two posts dealing specifically with restrictive bail regimes in two statutes [India's current anti-money laundering law and anti-terror law], it is helpful to have a summing up of the legal process problems which were flagged earlier. An interlude of sorts.     

Such clauses are obviously problematic because they render bail, a pre-trial measure to restore liberty of an accused, entirely contingent upon a premature discussion about the merits of the case even as the trial remains pending. What turns this problematic exercise into a grossly unfair and unconstitutional one is how the exercise is carried out in practice (which, if you read the previous posts, you know has changed over time). This practical aspect is the focus here.

Reducing delays in the trial has been a central theme of legislative changes to the criminal process in India, the thread which unites governments of the 1950s to the present regime. This has a material bearing on matters of bail generally, and naturally also on restrictive bail clauses. The argument flows from first principles. We conduct criminal trials because we accept that to imprison a person the allegations against them must be established beyond reasonable doubt. Till we have managed to do so, it is impermissible to deprive a person of their liberty. At the same time, in exceptional cases, there may be a need to restrain the person temporarily till conclusion of the trial to safeguard the process. 

Temporary legal arrangements which shift the status quo are fair because of their explicit acknowledgment to parties that it is only a temporary arrangement. Usually, the fairness of this arrangement formulated on the basis of first-impressions formed on untested material gets diluted as the litigation drags on; and, at some point the arrangement becomes untenable altogether. We usually think in these ways when dealing with civil cases, but criminal cases are no different. The status quo here is a citizen's liberty, and a shift from status quo is the arrest and custody pending trial. What makes this arrest and pre-trial detention on the basis of first-impressions palatable is its transient nature — it is a temporary holding measure, to tide over weeks or months by which point the set of allegations would have been tested on the anvil of beyond reasonable doubt.  

If an interim ruling is bound to cause a near-permanent shift in the status quo, a natural follow-up question is to think about how best we can ensure both sides get a fair and adequate hearing to put forth their side of the story. For starters, make sure that the material relied upon by the proponent is made available to the defendant, and hear both sides. The hearing should not be perfunctory but substantial, given its outcome is not a fleeting alteration to the status quo. Lastly, the higher burden is cast upon the party which wants to shift status quo, and must be discharged not by mere opinions and averments but substantive material of a kind that courts can judicially use.

Personal liberty is the default, and causing an arrest and thereafter seeking pre-trial custodial detention is the original shift in status quo, and bail is asking for a reversion to the status quo. This would mean that the State must initially carry the high burden to justify the arrest and discharge it using strong materials.  We can see this in play in statutes where subtle differences are prescribed in the standard for justifying an arrest depending upon the kind of offences involved (compare Section 41(1)(b) and (ba), CrPC 1973, as well as Section 19, PMLA 2002). Similarly, the accused would need the ability to rely upon whatever material is necessary to convince a court on why the accusations are not good and the situation must revert to status quo ante. In a restrictive bail regime, given that the merits of the case are determinative, the proponent would need a strong hand to justify its case.

Which then brings us to how are these burdens discharged by both sides. On this question of materials, the criminal law recognises that different phases in the life of a case would warrant different standards of justification for the State. At the start of an investigation, police necessarily invoke suspicion as a means to justify arrest. But as a case goes on, reasonable suspicion as justification must give way to prima facie proof, where proof is naturally based only on material that is admissible as evidence. This step-wise progression was well-illustrated by the Privy Council in Inspector Shaaban Bin Hussein [1969 3 All ER 1626]. In other words, once an investigation has concluded, suspicion must give way to proof to justify continued detention of an accused during trial. This distinction was of great relevance within the Indian setting where there was a consistent legislative choice distrusting the police. The clearest example being a disavowal of statements recorded by police during an investigation from being used at trial, except as a means for an accused to confront prosecution witnesses.

Crucial changes were made to this legislative scheme by amendments to the criminal procedure code in 1955 which introduced a conflict in the foundational precepts of the criminal process. These changes have been discussed in earlier posts but need more elaboration. Essentially, again frustrated by delays in trials, a comprehensive bill was moved in 1953 which sought to radically reimagine the criminal process. Two key changes being (i) deletion of the statutory prohibition against using police statements, and (ii) active use of such statements to speed up trials where police had investigated the case. In short, from distrusting police the law now sought to imbibe a position of trust. Huge uproar followed, the bill was debated at length both inside the House and before a Joint Select Committee, and ultimately passed after significant modification in 1955. The version of this bill which became law was very different from its initial avatar. Where the bill sought to significantly trust the police, the law diluted this approach and re-instated the barrier on using statements recorded by police. But at the same time, it retained the amendments by which such statements could now be used for substantive purposes such as framing charge and deciding matters of bail. 

This inherently contradictory position has remained with Indian criminal law ever since, and has not been addressed in the most recent 2023 laws either. What this means for arrest and bail is that the State can use material which can never be proof to discharge its burden till charge is framed and the evidence is recorded. What may have been a gap of few months or even a year in 1955 till institution of the case and taking evidence has today expanded to consuming several years in the life of a case, and requiring that questions of personal liberty continue to be decided upon untested allegations throughout this duration. 

Replacing legal evidence with the police file also carried serious consequences for how an accused can discharge the burden placed on them while seeking bail in a restrictive bail regime. There was no opportunity left to cross-examine prosecution witnesses at a pre-trial stage and introduce doubts in the accusation to convince a court that there were reasonable grounds to believe that the accused was not guilty of the offence. 

In other words, while the language of restrictive bail clauses has remained the same over time, the context in which they operate drastically altered the fairness of the regime. The context altered because of the changes made by Parliament to the criminal process, which transformed how the State and accused both discharged their burdens in matters of arrest and custody. While the law made it easier for the State to both discharge its initial burden on arrest and also oppose bail, it made it tremendously harder for the accused to discharge their burden to demonstrate why reversion to the status quo of liberty was necessary. Where the law had recognised a need to give a wide berth only during an investigation, since police were still gathering proof at this stage, amendments to the law post 1955 continued this wide berth till much later on in the legal process without corresponding safeguards to secure the position of the accused. 

The amendments did so by removing clauses which required courts to form their conclusions about the sufficiency of a case on the basis of evidence that could be challenged by either party, with new provisions that required courts to form judicial conclusions upon untested police material gathered during an investigation. Material which the law continued to condemn as being inadmissible and untrustworthy. No corresponding shifts were introduced to redress this balance, such as allowing for an accused to lead material in support of the bail to convince a court either. Now, accused persons had to discharge their burdens with both hands tied behind their back, being tasked to demonstrate reasonable grounds of their innocence whilst being unable to question the police material. Leaving us with a peculiar position that the law conferred far greater rights to safeguard personal liberty and civil rights against private parties, but did not confer such protections against the State even as it continued to recognise its potential for malice.

Thus, to simply point to existence of restrictive bail regimes in old laws a la Kartar Singh, is not a good enough basis to sustain their legality, let alone their legitimacy. If anything, Kartar Singh demonstrates the clear tendency on part of successive legislatures to act unthinkingly, introducing an antiquated statutory tool without any appreciation of the contextual requirements needed to secure its fairness. 

Jail is not the Rule - Restrictive Bail Conditions, After Independence (Part 2)

(This is the fourth post in an ongoing series on restrictive bail regimes)

The previous post covered the development of restrictive bail regimes in Independent India up till the 1970s. This post covers the crucial period from the 1970s till the mid 1990s, by the end of which India's Supreme Court, by my reckoning, addressed the legality of restrictive bail regimes for the first time.

The Repressive Laws Playbook

Before this phase, according to my count restrictive bail regimes — i.e., clauses restricting the power of sessions courts and high courts in granting bail — were not operating outside the war-related emergency legislation which we discussed in the previous post. These got a new lease of life in the 1970s, thanks to more war. Fast-forward to the mid-1990s though, and one finds that there were at least ten statutes (some had been repealed, to be replaced with new laws having similar clauses) at the federal and state levels with a restrictive bail regime in place:

• Section 12AA was inserted in the Essential Commodities Act, 1955 in 1981.
• Section 5 of the Madhya Pradesh Dacoity Affected Areas Act, 1981.
• Section 5 of the Uttar Pradesh Dacoity Affected Areas Act, 1983.
• Section 5 of the Rajasthan Dacoity Affected Areas Act, 1986.
• Section 439-A was added to the Criminal Procedure Code 1973 by the State of Punjab in 1983 to restrict bail for some offences.
• Section 15 of the Terrorist Affected Areas (Special Courts) Act, 1984.
• Section 17(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 [see page 140 of the link] (repealed in 1987).
• Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [see page 313 of the link].
• Section 37 was amended in the Narcotic Drugs and Psychotropic Substances Act, 1985 in 1989 to add such clauses.
• Section 7A was inserted in the Anti Hijacking Act,1982 in 1994.
• Section 7A was inserted in the Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982 in 1994.
• Section 439-A was added to the Criminal Procedure Code 1973 by the State of Tripura in 1994 to restrict bail for some offences.

Restrictive bail regimes are my focus here, but if we take a step back and look at the landscape, a repressive laws playbook emerges. 'Black Laws', as the PUCL dubbed some of these statutes in its remarkable 1985 booklet. The restrictive bail clause is only one part of these laws. It is complemented by cases being shifted out of regular courts and placed before 'special courts' appointed in consultation with the executive. Procedurally, the restrictive bail is accompanied by extension of the total period of custodial remand possible during investigation from 90 days to either 120 / 180 or even 360 days; the outright removal of anticipatory bail, and; the insertion of reverse burdens of proof (some, like TADA, even made confessions to the police admissible).  

Parliamentary proceedings on the federal laws in this list are remarkably silent on the question of why was a restrictive bail regime, in this formulation, required to deal with the mischief at hand. In the debates surrounding the various anti-terror laws of the 1980s and amendments to the NDPS Act in 1989, the total amount of discussion on the restrictive bail regime in the Lok Sabha seems to be confined to three paragraphs when the 1985 iteration of TADA was being passed. This discussion occurred on 20.05.1985 during the clause-by-clause examination on the bill. GM Banatwalla raised the issue of Section 17(5) in the bill turning criminal law on its head - much like lawyers had argued in cases past. This objection was swiftly cast aside by the Law Minister A.K. Sen, who replied that the criteria in the clause was exactly as what had been approved in "certain decisions of the Supreme Court and the House of Lords". Alas, these decisions were not shared, as the Minister suggested that Mr Banatwalla meet him privately to learn about them. 

Reactionary Measures?

Lack of discussion on procedural issues as against substantive ones was a theme through these debates. In other words, Legislators did not seem too concerned with the erosion of personal liberty through restrictive bail clauses, but they did seem highly concerned with how broadly terrorist and disruptive activities were being defined (perhaps because it threatened to implicate swathes of ordinary political activity). 

Comparably far more debate on deviations from general criminal procedure appears  during the debates in the Uttar Pradesh Legislative Assembly on the dacoity affected areas bill which were held on 07.09.1983. These debates are not especially instructive about why state and federal legislatures of the 1980s were turning to restrictive bail regimes, but the debates do offer helpful insight into the development of the repressive laws playbook in general. 

The debates around the Uttar Pradesh Dacoity Affected Areas Act sketch a line of reactionary thinking that emerged in response to the development of India's general criminal procedure in the 1970s. I refer, of course, to the introduction of the Criminal Procedure Code of 1973 with its significant clauses which seemed to take away considerable power from the police and return a sizeable measure of personal liberty to the individual accused of an offence. The clauses I refer to include (i) the introduction of anticipatory bail under section 438, (ii) the insertion of a 60 day time-limit for custodial detention during investigation and an indefeasible right of bail if the investigation isn't complete within that time (both under section 167), and (iii) the retention of wide bail discretion for sessions courts and high courts (under section 439). 

The radical nature of the first two contributions from the 1973 Code earmarked above has been ridiculously under-appreciated. It has been discussed on occasion on the blog (see here and here for instance). To get an idea of just how big was the shift in status quo as a result of these clauses, remember that the Supreme Court in 1975 had called default bail under Section 167 a 'paradise for criminals'. Parliament almost immediately took steps to reduce its radical portents by introducing a 90 day time-limit for some offences (which some states later extended to 120 days soon after). Further, also take a moment to consider that Parliament had passed a bill to delete anticipatory bail from the code altogether within a few years of its operation; a bill which only lapsed because the Lok Sabha was dissolved.

Thus, even though these laws had hardly been in force for any significant measure of time, there was enough of a political groundswell imagining these as too lenient. This view made the new pro-liberty clauses in the general criminal procedure the most obvious targets for laws designed to toughen-up the fight against serious crime, such as the various Dacoity Affected Areas Acts that were passed by states, and Terrorist Affected Areas Act passed by Parliament. The absence of any significant debate or discussion in the legislature around the nullification of these procedural rights makes sense because this is what legislators were quite happy to endorse even outside of these laws. If a more generous bail clause was not ideal for ordinary crime in the eyes of many members of Parliament, it is little cause for wonder why they did not find much fault in limiting bail for those accused of some of the most heinous crimes around. 

Retaining the Regime without Thinking Through

A consequence of the lack of debate surrounding these clauses was that no real thought went into figuring out how these would work in the context of the new criminal procedure regime that had been introduced in 1973. We flagged this issue in the previous post as well, but it requires a brief recap here for ease of reference. 

A restrictive bail regime asks courts to form reasonable grounds to believe that an accused is not guilty of the offence. How do courts form such reasonable grounds? This depended upon the stage at which a court dealt with the bail application. During an investigation, there would only be material on the police file for the court to consider. But as a case progressed, witnesses would be examined and cross-examined, giving an accused more opportunity to convince a court that there were reasonable grounds to believe that he was not guilty. 

Between 1950 and the 1980s, two aspects of the practice of criminal law underwent constant change and probably worsened the chances of an accused seeking bail under a restrictive bail clause. The first was the issue of delayed trials, which meant that it took far longer for cases to proceed to recording testimony of witnesses to generate material that could contest the police version. The second feature was amendments to general criminal procedure (mainly in 1955 and 1973) which made reliance on the police file more entrenched even after investigation had completed. Prior to 1955, examination of witnesses took place once before framing charges in a trial of sessions cases as well as warrant-triable cases before magistrates. Fast-forward to the 1980s, and pre-charge evidence had given way to using witness statements recorded by police during an investigation to decide whether there was merit in a case to frame charges.

There was a serious problem brought about by this shift, which might be obvious to some but not to others, so let me spell it out. Statements of witnesses recorded by the police officer during an investigation are not written or signed by the witness. In fact, they are not even necessarily written in front of the witness. The lack of any serious safeguards in recording these statements was arguably the by-product of a legislative view that statements made to the police could not be trusted and ought not to be used in evidence. This view was codified in Section 162 of the 1898 Criminal Procedure Code which barred use of statements recorded by police as evidence [see pg 121 of the link]. By 1923, the scope of the prohibition had been seemingly widened, to bar use of such statements "for any purpose" at any inquiry or trial [see pg 204 of the link].

Even though the 1973 Code retained the prohibition on using statements recorded by the police, the deletion of pre-charge evidence in police cases (since 1955, retained in 1973) had created a vacuum in how courts would form their opinions about whether charge ought to be framed and, more importantly for our purposes, how bail applications ought to be decided. This vacuum was filled up by an increasing reliance upon the statements recorded by police, in spite of the statutory prohibition contained under Section 162 of the Code. 

Thus, as opposed to the setup prior to 1973 where the harshness of the restrictive bail clauses could potentially reduce after investigation and as courts began deliberations on charge — i.e., once cases shifted away from a logic of suspicion to the logic of proof — the procedural setting after 1973 continued the jurisprudence of suspicion for much longer in the life of a case. Even as the law demanded a complete disregard for the statements recorded by police to form judicial conclusions, recognising that these may contain many untruths recorded by an overzealous police officer, at the same time the practice of criminal law nevertheless expected the courts to form 'reasonable beliefs' about an accused not being guilty of an offence and meriting bail (or for that matter, discharge) using precisely these unreliable, unsworn, and inadmissible statements.

Judicial Experience and Kartar Singh

As most of us know, a Constitution Bench of the Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] upheld the validity of the restrictive bail regime as it appeared in Section 15 of the 1984 Terrorist Affected Areas Act, Section 17 of the TADA 1985, and Section 20 of the TADA 1987. The conclusions in Kartar Singh have helped cement the legality, and legacy, of restrictive bail clauses in India. If we have to think about re-imagining restrictive bail regimes, we cannot do so without emerging out of the looming shadow cast by this decision rendered by a Bench of Five Justices.

All five Justices in Kartar Singh upheld the validity of the restrictive bail regime under various laws mentioned above. The discussion on this issue is in the lead judgment [paragraph 335 onwards in the link]. The conclusions can be summed up as follows:

• There is no problem with the criteria prescribed by the clause as it is a condition similar to that imposed by Section 437(1) of the CrPC 1973 on matters of bail, besides other laws such as the Customs Act, 1962 also carrying a similar formulation in respect of the power to arrest a person. "Therefore, the condition that 'there are grounds for believing that he is not guilty of an offence' which condition in different from is incorporated in other acts such as clause (i) of Section 437(i) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution."
• As regards the approach which a designated court ought to follow in matters of bail, the Bench in Kartar Singh referred to the earlier decision of the Supreme Court in Usmanbhai Dawoodbhai Memon [(1988) 2 SCC 271] with approval. As per Usmanbhai, the "police report along with the statements in the case diary and other available materials should be closely examined" by a court to decide whether there are reasonable grounds to believe that the accused is "innocent of the offence".

The Court acknowledged that many innocent persons appeared to have been persecuted by use of TADA, but concluded that this was an enforcement problem and not a problem caused by the statutory provisions itself which, as referred to above, the Court found unremarkable as they appeared to simply extend existing prohibitions present in the ordinary law. 

I would argue that Kartar Singh got the conclusions wrong on both fronts. In drawing a straight line from Section 437 of the CrPC to Section 20(8) of TADA 1987, the Court demonstrates a startling lack of attention to detail on multiple fronts. 

• First, it did not appreciate that restrictions under Section 437 were historically justified as they curtailed the discretion of magistrates to grant bail in serious crimes. A long-view of the history behind Section 437 shows that there was a conscious decision by Parliament made time and again to unfetter the discretion of senior judges. As opposed to this view expressed under the CrPC, the restrictive bail regime under TADA (and other laws) had constrained the discretion of sessions courts and even constitutional courts. Thus, if anything, clauses under TADA were squarely contrary to the kind of prohibition that the general law imagined. 
• Second, the history behind the restrictive bail clause showed that while the language of the clause remained the same from the 1940s till the 1990s, the context in which these clauses operated had drastically changed. The changes had exacerbated the handicap that such clauses cast upon an accused, by requiring courts to form their conclusions on the police file till the trial began.
• Third, in its unreserved affirmation of the Usmanbhai approach to decide bails, the Kartar Singh Court demonstrated its failure to appreciate the legal problems posed by reliance on the police file to administer the clause. While actively suggesting that courts should look at statements recorded during an investigation to decide bails under TADA, the Supreme Court gave Section 162 CrPC and the century-long legislative distrust of such statements a complete go-by.

Perhaps because the Supreme Court was clear about the validity of the clause, it did not spend much time contending with the multiple issues pertaining to its proper enforcement and application. In this regard, the Court could have taken a leaf out of the Madhya Pradesh High Court's book. A Full Bench of the Madhya Pradesh High Court was dealing with the validity of the M.P. Dacoity Affected Areas Act, 1981 in Gulabchand Kannoolal (1981). It upheld the law, including its restrictive bail clause, but while doing so suggested that the judicial engagement with bail applications required titration depending upon the stage at which a case was. Where the police materials may be looked at if bail was sought during an investigation, a court ought to only consider that material which could serve as admissible evidence at trial where bail was sought after filing the chargesheet.

Conclusion

The liberal turn in the general law of criminal procedure during the 1970s was swiftly met by a reactionary repressive laws playbook emerging in the 1980s as the answer to serious crime of all hues. A proliferation of statutes with restrictive bail clauses ensued, to tackle more and more kinds of serious crime which state and federal legislatures thought that the general law was too meek to address. The ultimate seal of approval for these clauses came when in 1994 a Constitution Bench of the Supreme Court finally rendered its verdict in Kartar Singh and held that the outcry about the clauses was much ado about nothing. 

Ever since, Kartar Singh has served to foreclose any challenge to the legality of restrictive bail regimes in India. However, as this post demonstrates, the shadow cast by Kartar Singh is one that can be dispelled by casting even the faintest of light upon its conclusions, if any future bench of the Court was to demonstrate a willingness to wield that torch. The reasoning offered by Kartar Singh to safeguard the validity of restrictive bail regimes was severely wanting, and also arguably premised upon an incorrect reading of the other statutes which the Court readily pressed into service. Moreover, its failure to adequately address the nuts-and-bolts issues of the operation of such clauses blessed a situation where personal liberty was at the mercy of the police file. A situation which was squarely in the teeth of received legislative wisdom going back centuries which cried out for distrusting the police version to form any judicial conclusion unless absolutely necessary.

In the next post, we will return to the present, and contend with the restrictive bail regime as it is found in arguably its two most prominent avatars: Section 45 of the Prevention of Money Laundering Act, 2002, and Section 43D(5) of the Unlawful Activities Prevention Act, 1967.