Reversing the Presumption of Innocence: Part II

This series of posts is centered about provisions restricting the possibility of an accused being released on bail which use tests resulting in a reversal of the presumption of innocence. The long and unbroken history of these provisions in the various Codes of Criminal Procedure for India was traced in the last post. Over the last three decades such provisions have found their way into many special statutes, at which we will take a closer look here.

The Standard Text

The standard clause follows the spirit of Section 437(1) of the Cr.P.C., and makes certain additions:

(1) Notwithstanding anything in the Code of Criminal Procedure, 1973, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless

              (a) the Public Prosecutor has been given an opportunity to oppose the application for such                  release; and

              (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are               reasonable grounds for believing that he is not guilty of such offence and that he is not likely               to commit any offence while on bail.

(2) The limitations on granting of bail is specified in sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail.

After going through the statute book, I found this provision was present in the following statutes:

1. Rule 184 of the erstwhile Defence of India Rules supplementing the Defence of India Act 1971. 
2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
4. Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA].
5. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS]
6. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
7. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
8. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999.
9. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
10. Section 45 of the Prevention of Money Laundering Act, 2002.
11. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
12. Section 49(7) of the Prevention of Terrorism Act, 2002 (nearly identical) 
13. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
14. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

There is a trend here: offences potentially canvassing anti-national elements are usually carrying these stringent clauses (this is further supported by the fact that nearly all these statutes are provided on the website of the National Investigative Agency). Further, most of these statutes are the product of India's international obligations through treaties it has signed (e.g: the NDPS Act is the product of the 1961 Single Convention on Narcotic Drugs, 1971 Convention on Psychotropic Substances). In these cases, the State can argue that the balance between individual liberty and state security should be tilted in favour of the latter. This was in fact expressly approved by five judges of the Supreme Court in Kartar Singh v. Union of India [(1994) 3 SCC 569].

The requirement to show "reasonable grounds for believing that he is not guilty of such offence" of Section 437 has been supplemented by a second condition: the accused must be "not likely to commit any offence while on bail". These twin conditions in turn bring unique problems. The first condition, not guilty of the offence, requires the accused to rebut specific allegations for that case. But these allegations might change from the initial FIR to the 173 Report, as often happens in UAPA cases. So would that require/mandate a re-hearing on bail as well? I haven't heard of this being followed, though a literal reading of the text does lead to this conclusion. The second condition in requiring the establishment of a belief that the accused is unlikely to commit any offence on bail can give the prosecution immense leverage to level allegations deeply invasive of one's privacy having no bearing to the present facts. The any offence part makes it extremely easy and legally sustainable for the judge to reject bail applications. It also results in the entrenchment of a criminal stereotype already well-established across the country, and all but erodes the presumption of their innocence.

Conclusion: Getting Bail Becomes Harder

Therefore, we find that these clauses have made getting bail harder than what was the position under Section 437. Further, these limitations have been clarified as notwithstanding anything in the Cr.P.C., i.e. that any benefits under the Cr.P.C. shall not accrue to the Accused. These are expressly stated as being in addition to whatever limitations the Cr.P.C. or other laws have. In the next post, the clauses restricting grant of bail will be considered more critically challenging their validity.