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anti-terror law came the Prevention of Terrorism Act in 2002 ['POTA'], which revived most of TADA's ills, and was repealed in 2004 following public backlash and change in government.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. 

Jail is not the Rule - Stating the Problem (Interlude)

(This is the fifth post in an ongoing series on restrictive bail regimes)

Restrictive bail regimes are arguably one of the most important issues in Indian criminal law and procedure. I use the term to refer to a swathe of statutory provisions through which the judicial discretion to grant or deny bail is curtailed, by mandating that such an exercise requires a court to formulate opinions about the merits of the case against an accused (wherever the prosecution opposes the request for bail). This usually presents itself in a formulation requiring courts must have "reasonable grounds to believe" that the accused is "not guilty of the offence" to grant bail. 

The previous posts in the series tried to locate these statutory clauses in Indian legal history. We looked at shifts in the kinds of criminal activity for which legislatures turned to such clauses, as well as shifts in the overall landscape of the general criminal procedure itself which had a bearing on how these clauses may well have worked in practice. Before we turn to the last two posts dealing specifically with restrictive bail regimes in two statutes [India's current anti-money laundering law and anti-terror law], it is helpful to have a summing up of the legal process problems which were flagged earlier. An interlude of sorts.     

Such clauses are obviously problematic because they render bail, a pre-trial measure to restore liberty of an accused, entirely contingent upon a premature discussion about the merits of the case even as the trial remains pending. What turns this problematic exercise into a grossly unfair and unconstitutional one is how the exercise is carried out in practice (which, if you read the previous posts, you know has changed over time). This practical aspect is the focus here.

Reducing delays in the trial has been a central theme of legislative changes to the criminal process in India, the thread which unites governments of the 1950s to the present regime. This has a material bearing on matters of bail generally, and naturally also on restrictive bail clauses. The argument flows from first principles. We conduct criminal trials because we accept that to imprison a person the allegations against them must be established beyond reasonable doubt. Till we have managed to do so, it is impermissible to deprive a person of their liberty. At the same time, in exceptional cases, there may be a need to restrain the person temporarily till conclusion of the trial to safeguard the process. 

Temporary legal arrangements which shift the status quo are fair because of their explicit acknowledgment to parties that it is only a temporary arrangement. Usually, the fairness of this arrangement formulated on the basis of first-impressions formed on untested material gets diluted as the litigation drags on; and, at some point the arrangement becomes untenable altogether. We usually think in these ways when dealing with civil cases, but criminal cases are no different. The status quo here is a citizen's liberty, and a shift from status quo is the arrest and custody pending trial. What makes this arrest and pre-trial detention on the basis of first-impressions palatable is its transient nature — it is a temporary holding measure, to tide over weeks or months by which point the set of allegations would have been tested on the anvil of beyond reasonable doubt.  

If an interim ruling is bound to cause a near-permanent shift in the status quo, a natural follow-up question is to think about how best we can ensure both sides get a fair and adequate hearing to put forth their side of the story. For starters, make sure that the material relied upon by the proponent is made available to the defendant, and hear both sides. The hearing should not be perfunctory but substantial, given its outcome is not a fleeting alteration to the status quo. Lastly, the higher burden is cast upon the party which wants to shift status quo, and must be discharged not by mere opinions and averments but substantive material of a kind that courts can judicially use.

Personal liberty is the default, and causing an arrest and thereafter seeking pre-trial custodial detention is the original shift in status quo, and bail is asking for a reversion to the status quo. This would mean that the State must initially carry the high burden to justify the arrest and discharge it using strong materials.  We can see this in play in statutes where subtle differences are prescribed in the standard for justifying an arrest depending upon the kind of offences involved (compare Section 41(1)(b) and (ba), CrPC 1973, as well as Section 19, PMLA 2002). Similarly, the accused would need the ability to rely upon whatever material is necessary to convince a court on why the accusations are not good and the situation must revert to status quo ante. In a restrictive bail regime, given that the merits of the case are determinative, the proponent would need a strong hand to justify its case.

Which then brings us to how are these burdens discharged by both sides. On this question of materials, the criminal law recognises that different phases in the life of a case would warrant different standards of justification for the State. At the start of an investigation, police necessarily invoke suspicion as a means to justify arrest. But as a case goes on, reasonable suspicion as justification must give way to prima facie proof, where proof is naturally based only on material that is admissible as evidence. This step-wise progression was well-illustrated by the Privy Council in Inspector Shaaban Bin Hussein [1969 3 All ER 1626]. In other words, once an investigation has concluded, suspicion must give way to proof to justify continued detention of an accused during trial. This distinction was of great relevance within the Indian setting where there was a consistent legislative choice distrusting the police. The clearest example being a disavowal of statements recorded by police during an investigation from being used at trial, except as a means for an accused to confront prosecution witnesses.

Crucial changes were made to this legislative scheme by amendments to the criminal procedure code in 1955 which introduced a conflict in the foundational precepts of the criminal process. These changes have been discussed in earlier posts but need more elaboration. Essentially, again frustrated by delays in trials, a comprehensive bill was moved in 1953 which sought to radically reimagine the criminal process. Two key changes being (i) deletion of the statutory prohibition against using police statements, and (ii) active use of such statements to speed up trials where police had investigated the case. In short, from distrusting police the law now sought to imbibe a position of trust. Huge uproar followed, the bill was debated at length both inside the House and before a Joint Select Committee, and ultimately passed after significant modification in 1955. The version of this bill which became law was very different from its initial avatar. Where the bill sought to significantly trust the police, the law diluted this approach and re-instated the barrier on using statements recorded by police. But at the same time, it retained the amendments by which such statements could now be used for substantive purposes such as framing charge and deciding matters of bail. 

This inherently contradictory position has remained with Indian criminal law ever since, and has not been addressed in the most recent 2023 laws either. What this means for arrest and bail is that the State can use material which can never be proof to discharge its burden till charge is framed and the evidence is recorded. What may have been a gap of few months or even a year in 1955 till institution of the case and taking evidence has today expanded to consuming several years in the life of a case, and requiring that questions of personal liberty continue to be decided upon untested allegations throughout this duration. 

Replacing legal evidence with the police file also carried serious consequences for how an accused can discharge the burden placed on them while seeking bail in a restrictive bail regime. There was no opportunity left to cross-examine prosecution witnesses at a pre-trial stage and introduce doubts in the accusation to convince a court that there were reasonable grounds to believe that the accused was not guilty of the offence. 

In other words, while the language of restrictive bail clauses has remained the same over time, the context in which they operate drastically altered the fairness of the regime. The context altered because of the changes made by Parliament to the criminal process, which transformed how the State and accused both discharged their burdens in matters of arrest and custody. While the law made it easier for the State to both discharge its initial burden on arrest and also oppose bail, it made it tremendously harder for the accused to discharge their burden to demonstrate why reversion to the status quo of liberty was necessary. Where the law had recognised a need to give a wide berth only during an investigation, since police were still gathering proof at this stage, amendments to the law post 1955 continued this wide berth till much later on in the legal process without corresponding safeguards to secure the position of the accused. 

The amendments did so by removing clauses which required courts to form their conclusions about the sufficiency of a case on the basis of evidence that could be challenged by either party, with new provisions that required courts to form judicial conclusions upon untested police material gathered during an investigation. Material which the law continued to condemn as being inadmissible and untrustworthy. No corresponding shifts were introduced to redress this balance, such as allowing for an accused to lead material in support of the bail to convince a court either. Now, accused persons had to discharge their burdens with both hands tied behind their back, being tasked to demonstrate reasonable grounds of their innocence whilst being unable to question the police material. Leaving us with a peculiar position that the law conferred far greater rights to safeguard personal liberty and civil rights against private parties, but did not confer such protections against the State even as it continued to recognise its potential for malice.

Thus, to simply point to existence of restrictive bail regimes in old laws a la Kartar Singh, is not a good enough basis to sustain their legality, let alone their legitimacy. If anything, Kartar Singh demonstrates the clear tendency on part of successive legislatures to act unthinkingly, introducing an antiquated statutory tool without any appreciation of the contextual requirements needed to secure its fairness. 

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.