A Division Bench of the Supreme Court has allowed appeals filed by Vernon Gonsalves and Arun Ferreira [Reported as Vernon v. State of Maharashtra, Crl. Appeal No. 639 / 2023 (Decided on 28.07.2023) ("Vernon")] which challenged the dismissal of their bail applications by the Bombay High Court, and has directed that they must be released on bail. The judgment comes almost five years after their arrests, and has been welcomed as a ray of light in what is possibly one of the darkest corners of present Indian jurisprudence — grant of bail in cases under the Unlawful Activities (Prevention) Act 1967 ("UAPA"). I need not elaborate the reasons for this praise for Vernon here, all of which is merited, as these have been comprehensively discussed on the ICLP Blog. Instead, I wish to flag the challenges ahead that must be resolved to make sure that the judgment in Vernon is not reduced to a forgotten relic by the sands of time.
Urgent Need for Clarifying Divergent Opinions
Vernon comes more than four years after a different Division Bench of the Supreme Court had delivered its verdict in NIA v. Zahoor Ahmad Shah Watali in April 2019 [(2019) 5 SCC 1 ("Watali")] and interpreted Section 43D(5) of the UAPA which requires that courts evaluate whether the case against an accused is 'prima facie true' to decide grant of bail.
In Watali, the prosecution had challenged an order of the Delhi High Court granting bail to the accused, arguing that the High Court had erred by evaluating the substantive merits of the material gathered by the prosecution to decide whether the case against the accused was 'prima facie true' as required by the UAPA. The Supreme Court agreed, and held that determining whether a case is 'prima facie true' did not entitle a court to speculate on how reliable or believable the material gathered by the prosecution is.
In the years since Watali its dictum came to sponsor a dizzying variety of judicial approaches. On one end of the spectrum was the 'eyes wide shut' approach which saw courts loathe to ask any questions of the prosecution material to decide bail — if there was material, and it supported the allegation, the court was not going to entertain questions about it being absurd. A good example, perhaps, is the decision of the Delhi High Court denying bail to Umar Khalid. On the other end of the spectrum was an 'eyes wide open' approach which saw courts continue to demand some believability in the prosecution case to decide bail and test its soundness by skirting the edges of Watali. The Bombay High Court order granting bail to Anand Teltumbde was a recent example of this approach.
At one level, Watali was unremarkable in advocating an approach cautioning courts from wading too deep into a consideration of the merits of a case at the stage of bail. It borrowed this approach from general bail jurisprudence. What was remarkable about Watali was its blindness to the fact that it was not dealing with the ordinary bail law, where deciding bail should not turn on the merits of a case, but a statute which made bail entirely contingent on the merits of the case. In other words, Watali ended up fitting a square peg in a round hole. The judgment in Vernon does not expressly call out Watali as being problematic on this count. However, it unequivocally condemns that most extreme variant of the Watali approach when it concludes that "at least surface-level analysis of probative value of the evidence" is required to decide whether a case is 'prima facie true' for purposes of bail under the UAPA (Paragraph 36). This, arguably, is the best reading of Watali itself, but it is not how the Vernon court puts it.
The subtlety of the analysis by the Supreme Court in Vernon may yet be lost on future courts or may be deliberately avoided by prosecutors, who will probably cling to the fact that both Watali and Vernon are decisions by benches of the same strength and thus continue to evoke the ghosts of the 'eyes wide shut' approach in spite of the condemnation in Vernon. To put the matter beyond doubt, it is imperative that the Supreme Court endorse the observations in Vernon wholeheartedly and shines light on its interplay with Watali. The pending appeal against rejection of bail to Umar Khalid may be a good place to start.
The Wider Problem of Twin Conditions Law
There is an interesting passage in Paragraph 40 of Vernon. Echoing observations made in Najeeb [(2021) 2 SCC 202], the Court notes that the restrictions on bail under UAPA are less stringent than those under statutes such as the Narcotic Drugs and Psychotropic Substances Act 1985 ("NDPS").
Section 43D(5) of the UAPA reads:
Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters 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.
Section 37 of the NDPS Act reads:
No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless —
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) 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.
Take a look at both clauses again. The Supreme Court in Vernon says that the UAPA bail requirement is less stringent because it asks a court to see whether the allegations "cannot be held to be prima facie true" as opposed to the NDPS clause which requires the court "to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and he is not likely to commit any offence while on bail."
Insofar as the UAPA clause does not have any speculative determination of future conduct required to decide bail, it is definitely less stringent. But is the requirement of testing whether a case is 'prima facie true' less stringent than the NDPS formulation of 'not guilty' which is repeated across other laws? I think that it is not as straightforward a query as the Court has made it seem in Vernon. If anything, because it will be easier to cross the threshold of establishing a case is 'prima facie true' than establishing reasonable grounds for believing a person is 'not guilty', the UAPA clause is arguably a more stringent restriction on granting bail.
Accepting that the UAPA is stricter than the NDPS would perhaps allow courts to come to terms with the seminal question that requires addressing here — can such a clause ever be constitutional? Unlike NDPS and other statutes restricting bail which do not exhaustively mention the materials which a court considers to decide whether reasonable grounds to deny bail exist, the UAPA clause specifically lists out the material on which this determination is made: case diaries, and the police report. Two questions arise. First, can judicial discretion be rendered subservient to the views of a police officer who conducts the investigation? Second, since it is accepted by the Supreme Court itself that police reports often withhold exculpatory material from courts in a bid to secure convictions which has prompted the Court to broaden rules of disclosure, is such a procedure meeting the 'just, fair, and reasonable' test under Article 21?
Answering this question of stringency requires dealing with a linked question which neither Vernon nor Watali dealt with — upon whom does the burden lie to meet this threshold? In the NDPS framing, it has been common for courts to assume that the accused must show that there are reasonable grounds to believe that she is not guilty of the offence. The text itself may yet support casting the burden on the prosecution, but that is a separate matter. In the UAPA context, the Supreme Court in its framing at Paragraph 40 itself suggests a similar approach of placing the burden on an accused — the test is framed as a negative, the case "cannot be held to be prima facie true", which is a proposition only the accused will try and show. This is how most courts have so far been reading Section 43D(5), but somehow it has not prompted courts from considering the impact this view has on how bail hearings under UAPA are to be conducted. Since it is only once an investigation concludes that the accused gets copies of the material forming the basis of accusations against him — the very material which is the basis for a court to decide whether the case is 'prima facie true' — does this mean that every accused is practically consigned to spend three to six months in custody in such cases before being able to agitate bail? Again, we must ask, is this a procedure that can ever meet the venerable 'just, fair, and reasonable' test prescribed by Article 21 to deprive persons of their personal liberty?
Conclusion: The Little Done, the Vast Undone
Judgments like Vernon, where judicial reasoning does not crumble under the sheer weight of how serious certain accusations can be made to sound from the lips of prosecutors and the pens of policemen, breathe life into the idea that there exists a rule of law governing the affairs of the Indian republic. However, one judgment alone cannot alter the deep-seated views which prompt courts to adopt positions and procedures that are antithetical to personal liberty. Vernon reflects the little done. This post hints at the vast undone that must now be addressed by courts and the legislature if we want make bail hearings a fairer enterprise.
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