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 Fast-forward to the mid-1990s though, and one finds that there were at least ten statutes (some had been repealed, to be replaced with new laws having similar clauses) at the federal and state levels with a restrictive bail regime in place: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• Section 17(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 [see page 140 of the link] (repealed in 1987).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.