There are a handful of judicial decisions that consider how Section 43-D of the Unlawful Activities Prevention Act 1967 ("UAPA") — concerning grant or denial of bail — should work. On 02.04.2019, a Two Justices' Bench of the Supreme Court gave us one such judgment, deciding the appeal in National Investigating Agency v. Zahoor Ahmad Shah Watali [Crl Appeal 578 of 2019, decided on 02.04.2019 ("Watali")]. This post provides a summary of the case, and offers a critique of the opinion. I argue that the Court's interpretive choices in Watali should raise concern, as the judgment effectively sanctifies lengthy pre-trial detention in UAPA cases and offers perverse incentives to prosecute persons under that statute.
Summary: 43-D(5) and "Prima Facie True"
The National Investigating Agency had filed a comprehensive charge-sheet disclosing a wide-ranging conspiracy to commit terrorism offences. Specific allegations were made against Zahoor Watali and others for funding / encouraging terrorist and secessionist acts through hawala channels, and thus committing UAPA offences [Extracted in Para 27 of Watali]. He was arrested and denied bail by the designated Special Court, largely because of the harshness of Section 43-D(5), UAPA.
This provision makes it tougher to get bail by adding an extra condition to those already existing in the Criminal Procedure Code 1973. Section 43-D(5) states that if the public prosecutor opposes bail then the Court shall deny bail if after perusing the Case Diary or charge-sheet it "is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true." [Emphasis mine]
The denial of bail was challenged in appeal before the Delhi High Court, which reversed the order and granted bail to Zahoor Watali on 13.09.2018. Suffice to state that the High Court upon reading the Case Diary and charge-sheet did not find reasonable grounds to believe that the accusations against Watali were "prima facie true". This decision was challenged in appeal before the Supreme Court, which pronounced its verdict on 02.04.2019. Since it found the approach of the High Court was totally erroneous [Para 35], this allowed the Supreme Court to step beyond the narrow scope of intervention for cancelling bail to go ahead and reverse the High Court order altogether.
One of the main issues before the Supreme Court in Watali was how to interpret the phrase "prima facie true" which is at the heart of Section 43-D(5), UAPA. The Court clarified that no "elaborate examination or dissection" of the material was needed for this exercise [Para 18]. It further clarified that the UAPA provision cast a lower threshold for the prosecution to satisfy when compared with other laws having restrictive bail conditions such as the Maharashtra Control of Organised Crime Act 1999 ("MCOCA") (as well as older anti-terror laws in India) where a court can grant bail if there are reasonable grounds to believe the accused is "not guilty" of the crime [Para 17].
For the Supreme Court, the High Court had taken a wrong turn in conducting a strict scrutiny of the materials to decide the issue of bail. It chided the High Court for seemingly refusing to look at material not mentioned in the charge-sheet [Para 18], and in doing so the Supreme Court clarifies for us that the references to "Case Diary" and "Report under Section 173 of Code" in Section 43-D(5), UAPA, do not prevent a court from looking at the other materials supporting the prosecution case [Paras 18, 20]. Thus, looking at this totality of material furnished by the prosecution, the Supreme Court disagreed with the High Court's conclusions on the existence reasonable grounds to believe the case against Zahoor Watali was "prima facie true". [Para 24]
Fidelity to Text, but what about the Context?
It is completely understandable for two courts to come to different conclusions on the existence of a reasonable belief in the sufficiency of the prosecution case. But the Supreme Court in Watali goes far beyond that, and specifically condemns the approach adopted by the High Court on how to decide if the reasonable grounds exist. In place of the strict scrutiny suggested by the High Court, the Supreme Court asks us to be faithful to the text of Section 43-D(5) and the words "prima facie".
If we consider "prima facie" in the abstract, it is difficult to argue against the correctness of the Court's view that making out prima facie case cannot be a very strict standard. This is how the prima facie test seems to work in other laws as well: for instance, in Section 20 of the Prevention of Money Laundering Act 2002, and Section 7 of the Extradition Act 1962.
The problem, though, is that no law operates in a vacuum. And the UAPA operates in a very peculiar context. It concerns perhaps the most serious of allegations — of terrorist acts — and punishes them with the most serious of punishments — death. It was because of this context that the Delhi High Court in Watali had noted that material had to be scrutinised with "extra care", rather than proceed "merely on the statements of the investigating agency". According to the High Court, refusing to engage in such scrutiny "would do more harm to meet the challenge arising out of terrorist activities rather than deterring terrorist activities."
What makes the context of terrorism cases and the text of Section 43-D(5), UAPA even more incongruous is that, whichever way you read the law, it is almost impossible to get bail once charges are framed in such cases if the public prosecutor opposes bail [something the Supreme Court was aware of in Watali (Paras 17-18). This is why the figure that almost 70% of UAPA cases end in acquittals masks the reality that even the acquitted persons would have still spent many years in prison facing trial.
Because of this, accused persons realistically only have a window between the FIR and framing of charge to secure bail. Since the Indian criminal process requires that the prosecution disclose its case after filing the chargesheet, realistically a much narrower window exists in which the accused can seek bail in a UAPA case to show a court that the allegations against her are not prima facie true. Therefore, for the High Court, this context was irreconcilable with view that Section 43-D(5), UAPA required only minimal scrutiny by the court when deciding bail.
There is precious little in the Supreme Court's judgment that suggests an awareness of this context. But in Para 31, it is clear that the Court was by no means ignorant of this reality surrounding UAPA cases. The judgment clearly states that "the fact that there is a high burden on the accused in terms of the special provisions ... does not alter the legal position ... to the effect that the chargesheet need not contain detailed analysis of the evidence." [Para 31] The significance of this line cannot be belittled, as it confirms that the Supreme Court actively chose a legal position that makes lengthy undertrial detention more likely.
Remember, this is the same Court that condemns lengthy undertrial incarceration in petty cases and monitors implementation of Section 436-A Cr.P.C. But when it comes to the most serious of cases, the ones that carry the graves stigma, where persons are rendered pariahs from society, the Court takes a view that enables the stigma rather than help reduce it. The hypocrisy is staggering but unsurprising. And at the same time, deeply alarming. The Court has taken a view that makes getting bail in UAPA cases very hard. To imagine that this will not act as a perverse incentive for state agencies to use the UAPA as a tool (on top of the already existing incentives) is a far too benign view of law enforcement.
The effects of this interpretive choice will be felt in diverse ways in the legal system. But it is hard to conceive of outcomes which are anything but fearsome. The decision could make the UAPA an even more attractive tool to law enforcement agencies now that getting bail is harder. Another effect could be that police see the decision as offering incentives to drag UAPA prosecutions out for longer, since accused persons are unlikely to get bail, and almost certain to remain in custody after framing of charge. The decision might just ensure that even as the rates of acquittal in UAPA cases hover around 70%, the rate of persons suffering imprisonment remains close to 100%.
Conclusion
The 86 page long opinion in Watali seems like a paean to the rule of literal interpretation for statutes: the Supreme Court called out the Delhi High Court for conducting a detailed inquiry at the stage of bail in spite of Section 43-D(5) only requiring a "prima facie" examination. But, in the same breath, the Court also effectively rewrote the provision, as it broadened the scope of inquiry for a court from beyond the Case Diary and Chargesheet to consider "all other relevant material/evidence produced by the Investigating Agency" for making a decision [Para 21, emphasis mine]. Thus, besides giving a cursory look to the Case Diary and Chargesheet, courts are required to evaluate more material with the same benign prima facie gaze.
To read Section 43-D(5), UAPA in this way is not absurd, if we look at text alone. But legal texts are not anodyne words on paper. To ignore their context, the power-relationships they create and impose, is foolhardy. The Supreme Court was not ignorant of the context that Section 43-D(5) occupied. And yet, it chose an outcome heavily titled in favour of the state interests and against individual liberty. It leaves only one possible conclusion for us to draw: This is how our scales of justice tilt.
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