Jail is Not the Rule - Restrictive Bail Conditions in the UAPA and PMLA

(This is the sixth and concluding post in a series on restrictive bail conditions in Indian law).

We are back where we started; the present. From a situation where restrictive bail clauses were only a part of the statute book to contend with legal emergencies, the years between 1980 and 2010 witnessed a gradual and steady decline in the imagined emergency threshold which would justify incorporating clauses restricting the discretion to grant bail. Today, as a result, there are at least ten laws at the federal an state levels (indicative list here). Amidst this morass of liberty-restricting legislation, two twin towers stand out — the Unlawful Activities Prevention Act 1967 ['UAPA'], and the Prevention of Money Laundering Act 2002 ['PMLA']. The terrible acronymic duo for the defence, and the most-trusted friends of the prosecutorial branch. 

They may not be the most statistically significant of crimes, but it is undeniable that these two pieces of legislation have today captured the public imagination in an unparalleled manner. Which is why for this post, I choose to focus only on these two laws as opposed to sticking with a more chronological take.

UAPA and Bail — Problems of Design, Problems of Application

We have met India's first anti-terror law, the Terrorist and Disruptive Activities (Prevention) Act 1985 ['TADA'], in the previous post. This law was infamous by the time of its repeal for becoming a tool to support untrammelled police power and permitting lengthy pre-trial incarceration. After a brief hiatus in which India had no dedicated anti-terror law came the Prevention of Terrorism Act in 2002 ['POTA'], which revived most of TADA's ills, and was repealed in 2004 following public backlash and change in government. 

Two anti-terror laws being cast aside within a decade suggests some instability in policy. Perhaps that is what prompted an approach which did not seek to erect an resurrect the same anti-terror framework which had held sway for the past two decades, and instead craft a different approach. If this was the idea behind using the 1967 UAPA to provide the basis for combating terrorism, its execution was rather poor; swathes of the TADA and POTA were simply lifted and added to the 1967 law by amendments in 2004. 

So much for a different approach, right? Not entirely correct. While large swathes were retained, parts of the erstwhile regime were unequivocally bunked. Confessions to police were admissible under TADA and POTA, but this clause was not retained in the UAPA. Most importantly for us, the 2004 amendments to the UAPA did not insert restrictive bail clauses. Nor did they insert clauses to lengthen permissible pre-trial custody pending an investigation. These all-too familiar features of the UAPA came at the end of 2008 after the terror attacks in Mumbai that year (along with the National Investigation Agency Act).

The debates surrounding the insertion of a restrictive bail clause in the UAPA make for very interesting reading. Sure, restrictive bail clauses were proposed, but the language was markedly different from the formula adopted in Indian legislation since the Second World War. The proposed clause did not ask that an accused convince a court that there were reasonable grounds to believe that she was not guilty, but instead it said that bail would not be granted "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". 

At the start of the discussion, the Minister (P. Chidambaram), noted the diversity of views on the issue and that their proposal represented a "fair balance". When it came to the specifics for the bail clause, the Minister made two notable points: first, the structure of the proposed clause required courts to test whether the police case was true, whereas "in POTA and other Acts, it was the other way round"; second, he noted that this restriction only bound the trial courts and did not restrict the discretion of either the High Court or the Supreme Court. Another member of parliament, Kapil Sibal, critiqued the usual formulation restricting bail by stating that "no bail could ever be granted" under the old law because "no court can come to the conclusion that the accused is not guilty" which is why his government "[had] not accepted that in the present law" (page 13).

On its optimistic reading, the UAPA gave us a new approach to restrictive bail clauses. It resolved one issue that the previous post identified—of placing a burden on the accused to get bail—by clearly placing a burden on the prosecution to satisfy the court that bail ought to be denied. Till here, the debates are with us. Where they do not provide any guidance, is on what threshold is the prosecution tested. Where other clauses required an accused establish reasonable grounds to believe they are not guilty, the UAPA required that the material should demonstrate the accusation was prima facie true. If the idea was to not construct an impenetrable barrier to bail, this threshold was meant to be a serious one. The material should be so strong that a bare reading, prima facie, convinces the court that bail ought to be denied. 

The standard lent itself much more easily to a view that the threshold cast upon the prosecution was a relaxed one, rather than a tough one to meet. All that the court needs to be doing is examine the prosecution material a little bit, to see that on the face of it a case has been made out. A close analogy could be seen with, say, the stage of framing charge where examining whether a prima facie case is made out is how courts had gone about their business. How often did charge get framed? In all but the rarest of cases. What else can we expect? As a Member of Parliament Asaduddin Owaisi put it, "What will the case diary say? Will it write flowers about the accused? The case diary will, of course, follow what is there in the charge sheet and what is there in the FIR." In other words, if the game is still rigged, how can we expect a different outcome simply by placing a feather-light burden on the prosecution?            

This failure to discuss the details of this prima facie true standard has proven to be the UAPA's achilles heel. It has given us a situation where more than fifteen years after the standard was inserted, courts are still unsure how to make it work. Some courts consider it is not exactly like framing charge, but admit that it would be very difficult to grant bail after framing charge given the similarity of the threshold. For some, the prima facie true test is the same as the 'not guilty' standard, for others it is an 'easier' burden for an accused to meet than this 'not guilty' test. Of course, imagining it as a burden on the accused itself buttresses the point about confusion in its application. It has brought us to the position where there is no consistency in how the law is applied across the country, with every decision the subject of great analysis. 

Except, of course, it applying consistently to deny bail to accused persons in all but the rarest of cases.

The PMLA — Old Wine, Devastating New Bottle

There were no such pretensions about introducing a new framework for restrictive bail clauses when it came to the PMLA. The 'not guilty' formula was adopted under Section 45 of the statute, and the problems with it which we identified in the previous post would thus remain applicable to the PMLA as well. As Mr. Sibal observed in Parliament, nobody ever gets bail under this formulation. Where the PMLA makes it harder is by allowing the agency to record confessional statements during an investigation, a tool that is not available in ordinary prosecutions by the police. 

But in addition to these issues, there is one aspect unique to the PMLA which deserves our attention and shows us that the issues here are of a different nature to those faced with the UAPA. Crucially, restrictive bail under PMLA originally did not apply to all cases. A brief recap about the PMLA regime is necessary here. Unlike most other crimes, money laundering is a parasitic offence, in that it requires that allegations of some prior criminal conduct to have generated proceeds of crime. Without proceeds of crime, there can be no money laundering. 

Till 2012, the PMLA followed an approach where it treated the many different kinds of prior criminal conduct differently. Any proceeds generated from some grave crimes, such as drug-trafficking, murder, terrorism, etc., would be liable for additional prosecution under PMLA. For many other kinds of crimes which may generate proceeds of crime—say cheating, for instance—PMLA applied only if allegations crossed a monetary threshold. There were inbuilt safeguards, of sorts, to limit the catchment of PMLA as it was originally enforced. When it came to its restrictive bail regime, there were further safeguards. The harsh regime only came into play for the cases where the prior criminal conduct was the of the no-monetary-threshold / highly serious variety. And not all of those either, but only those section of cases where the underlying offence carried a possible punishment of at least three years. 

First in 2012, and then definitively in 2018, the PMLA eschewed this approach of inbuilt safeguards and restrictive application, to transform into the present-day juggernaut that it is today. From being applicable to only a handful of cases, the PMLA's transformation also brought with it a terrifying change in how deeply the harsh bail regime penetrated within the criminal process. Now, generation of any proceeds of crime, from any scheduled offence (a list that runs into more than 150 offences), is a possible crime under the PMLA, which would trigger the restrictive bail regime. It is not only a matter of reach. By artificially splitting the criminal act into two as the PMLA does, a person can be on bail while simultaneously be detained in custody for practically the same conduct. It throws up remarkable contradictions in that a restrictive bail regime is enforced in tandem with the ordinary law for the underlying criminal act where, in some cases, the prior criminal conduct might even be bailable implying that a person should never be in custody in the first place.

Old wine, in a devastating new bottle.

Conclusion: No Silver Bullets

There are no silver bullets which would magically fix the problems with restrictive bail clauses under the UAPA and PMLA, and all other laws for that matter. Sure, there are some common issues plaguing how the regime works in practice (see the previous post), which can be remedied to give us a fairer process. However, at the same time, there are very unique travails which afflict the regime under two laws that have assumed a pre-eminent position in the public consciousness when it comes to harsh bail clauses.    

I would argue that the UAPA is certainly better than other restrictive bail configurations, for it places a burden on the prosecution to justify why bail ought to be denied. Since the default position is in favour of personal liberty, it rightly requires the prosecution to justify why personal liberty ought to be curtailed for prolonged periods. Where it has failed, however, is in its prescription of precisely what the prosecution is required to establish. To justify continued detention after arrest, the prosecution gets to decide just how high its mountain will be and there is no objective threshold which the law is holding onto. No wonder that the prosecution often choose to erect relatively scalable molehills.

With PMLA, the terrifying feature is not the restrictive bail clause per se which is comfortingly familiar. It links back to a seventy-five year old tradition of courts devising ways and means to safeguard personal liberty in spite of such clauses. What the PMLA changes, and what makes it truly scary, is the vastness of its reach. If ever there is money associated with criminality, even relatively benign criminality, the PMLA can enter the room and transform the landscape. That ordinary cheating case is now a money laundering case, allowing the agency to record sworn statements from everyone including the accused, use them to arrest and condemn the person, who can only manage to restore liberty by convincing a court that the material against her, which now includes sworn statements and admissible confessions, is not making out a case for guilt. Tall order, if there ever was one.

 

This series began mainly because of the Indian Supreme Court remarking in a bail plea involving offences punishable under the UAPA that, for some offences where statutes carrying restrictive bail clauses such as UAPA, 'jail is the rule' and bail an exception. It was peculiar to see a tawdry prosecutorial submission being elevated to the place of judicial dictum. Surely, such an error could only occur due to a short-sighted view of the law, too focused on the present circumstances to think that these laws with restrictive bail clauses are extremely exceptional. Once we adopt a vantage point allowing a view of circumstances slightly outside our own narrow vista, and can see the development of this branch of law, it is crystal clear that even in a statutory regime carrying restrictive bail clauses, jail is not the rule.

This series demonstrated that even as the legal context in which they operate has dramatically changed over time, Indian courts have developed a wealth of experience to administer restrictive bail clauses in a manner consistent with the underlying judicial and legal commitment to the presumption of innocence which runs in favour of an accused. The changing legal context has certainly made the process much less fair with the passage of time, and even as our courts have helped to secure a just outcome, they have singularly failed to improve the fairness of the legal process around bail in these cases. The responsibility for which must largely lie at the door of the Supreme Court and its ahistorical appreciation of the law in Kartar Singh. 

The task for Parliament and courts is to urgently de-link the perceived need for restrictive bail clauses per se, with the need to retain the outmoded and oppressive restrictive bail clauses that were fit for a colonial populace. Our criminal procedures have dramatically changed in both form and substance over the course of eighty years since the Second World War, and our legal system is professedly guided by a fundamental assumption in favour of liberty as opposed to an assumption that law was beholden to power. Continuing with colonial legal formulations to condemn our fellow citizens to countless years of pre-trial custody has already left many indelible marks on the fabric of independent India's rule of law, with the custodial deaths of those presumed innocent such as the late Father Stan Swamy, and the countless years of life lost by nameless others who were eventually released on bail. 

If deprivation of liberty even for a single day is one day too many, how can the same constitutional fabric continue to uphold a set of rules which by design enable the unjustified deprivation of liberty for countless years on end? This is not a "puzzling dilemma" requiring we "balance both-sides", but an issue which has a blindingly obvious answer: a constitution respecting personal liberty in letter and spirit, simply cannot.