Guest Post: One Small Step Forward re UAPA Bail

(This is a guest post by Nitika Khaitan discussing the judgment in KA Najeeb)

In a rare occurrence in the world of UAPA bail orders, the Supreme Court this Monday explicitly held that despite the Act’s restrictions on bail, constitutional courts can grant bail on the grounds that the fundamental rights of the arrestee have been violated. Colleagues and fellow commentators have rightly pointed out the limits of this judgment—what it holds has long been implicit in many SC orders. I argue in this post that the judgment is still an important development, even as we are yet to see the courts engage with the unconstitutionality of the Act’s bail restrictions and other provisions.

Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 bars courts from releasing arrestees on bail if on a perusal of the case diary or chargesheet, there are reasonable grounds for believing that the state’s accusations are prima facie true. This places arrestees in a usually impossible bind. Before the chargesheet is filed, arrestees have no right to see the material against them, making it difficult for them to satisfy the courts that the S. 43D(5) bar doesn’t apply. After the chargesheet is filed, the task remains onerous. When courts have before them the state’s opinion in writing that there is enough material to charge the accused, convincing courts that there is no prima facie truth to the state’s accusations can be near-impossible. 

The UAPA’s bail restrictions thus lead to long years in custody pending trial, given general delays in the judicial system and the complexity of UAPA trials, which can involve multiple accused and hundreds of witnesses. Moreover, these bail restrictions operate notwithstanding ordinary criminal law provisions such as S. 436A of the Code of Criminal Procedure. S. 436A mandates that undertrial prisoners be released when they have been in jail for half the maximum sentence that their alleged offence carries (unless they are accused of an offence punishable with death). Under the UAPA, even when someone has been accused of an offence with a maximum sentence of three years, they are ineligible for the benefit under S. 436A.

In its judgment dated 01.02.2021 in Union of India v. K.A. Najeeb, the SC at least explicitly recognises that S. 43D(5) of the UAPA cannot be the sole reason to deny bail when the accused has been denied a speedy trial. Regrettably, the Court's previous articulations of this principle had either been stated by omission (i.e. not stated); or phrased more tentatively, or as a one-time measure. These previous articulations are cited in the February 1st judgment itself. For instance, in describing the SC’s 2016 order granting bail to the Dalit rights activist Angela Sontakke, the Najeeb judgment states:

This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years’ incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43­D(5) of UAPA.

This is correct, but it is also important to note that the Angela Sontakke order did not even mention S. 43D(5). Neither did the next SC order cited by Najeeb - the 2017 SC order granting bail to three co-accused in Sontakke’s FIR. Two of the TADA orders Najeeb mentions are similarly sparse, one-page orders that don’t mention TADA’s mandatory bail restriction. The other two TADA orders that Najeeb cites engage more substantively with reconciling statutory bail restrictions and delays in trial, but still fall short of what Najeeb states. In Shaheen Welfare Association v. Union of India (1996), the SC held that bail may be necessary in some cases to meet the requirements of Article 21 when bail is restricted by statute and a speedy trial is impracticable. But the 1996 order restricted itself to passing one-time directions classifying TADA undertrials into categories with different criteria for release. Further, it focused on the inadequacy of Designated Courts under TADA as the cause for delayed trials, instead of grappling with the pervasive nature of gross judicial delay. The more recent SC order in Umarmia v. State of Gujarat (2017) relies on Shaheen to grant bail to a TADA accused who had spent 12 years in custody. 

As I’d argued previously on this blog, the SC’s silences and ad-hoc measures in its previous UAPA and TADA orders woefully fail to build the jurisprudence that a constitutional court can and should. They indicate an unease with the patent injustices of provisions such as S. 43D(5), and little else in terms of providing redress. The Punjab and Haryana High Court had recognised this lack of clear jurisprudence in a series of November 2019 decisions dealing with similarly harsh bail conditions under the Companies Act. These orders state that there is an “inconvenient question, which has not been shown… to have been answered by any court so far, including the Hon’ble Supreme Court. The question is - for how long an accused can be kept in custody on the basis of non-fulfillment” of restrictive bail conditions?

At least this inconvenient question now has some sort of an answer, albeit one that is of no help to UAPA arrestees before lower courts. Other more inconvenient questions remain: how many years in custody are necessary before a court deems it a Part III violation? And how many more years before we grapple with the Part III violations that the UAPA enables from the first day it is invoked?