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anti-terror law came the Prevention of Terrorism Act in 2002 ['POTA'], which revived most of TADA's ills, and was repealed in 2004 following public backlash and change in government.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

The Arup Bhuyan Review

Twelve years. That's about how long the judgments in Raneef [(2011) 1 SCC 784], Arup Bhuyan [(2011) 3 SCC 377] and Indra Das [(2011) 3 SCC 380]—all decided by the same bench—remained good currency. For eleven of those, they remained under a cloud on account of review petitions filed in 2011 by the Union of India and the State of Assam, in which the Supreme Court found some merit in 2014 and decided for the matters to kept before a larger bench. That larger bench has now rendered its judgment, partly overruling the decisions [Arup Bhuyan (Review) - decided on 24.03.2023 (lead opinion by Shah, J. and a concurrence by Karol, J.]. 

For convenience, I've extracted the holding from the lead opinion below:

"18. In view of the above and for the reasons stated above we hold that the view taken by this Court in the cases of [Raneef, Arup Bhuyan, and Indra Das] taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organisation will not incriminate a person unless he resorts to violence or incited people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and above the membership of a banned organisation there must be an overt act and / or further criminal activities and adding the element of mens rea are held to be not a good law. It is observed and held that when an association is declared unlawful by notification issued under Section 3, which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967." [Emphasis in original]

This post deals with Arup Bhuyan (Review) at three levels. The first level is engagement with the opinions to discern what exactly has been held outside of the concluding paragraph, and how. The second level is a look at judgments which were being reviewed—Raneef, Arup Bhuyan, and Indra Das—to understand the foundational missteps committed in Arup Bhuyan (Review). Finally, the third level zooms out from this particular case to look at the broader landscape of personal liberty and the law. 

What has the Court done in Arup Bhuyan (Review)

The ultimate conclusion in Arup Bhuyan (Review) has been extracted above. Simply put, it means that for purposes of the relevant clauses — Section 3(5) of TADA and Section 10(a)(i) of the UAPA — there is no need for the state to show an accused was an 'active' member of an unlawful organisation (the UAPA language) for purposes of the offence. Note that the UAPA today deals with 'terrorist acts' differently and far more seriously than it does 'unlawful acts' and in question here was the scheme pertaining to the latter. The Court has held that it is sufficient if, after an organisation is declared as unlawful under the statute, that a person continued with her membership of the same. I will come back to just 'how' the Court arrived at this outcome. Before that, we need to flag some of the other conclusions arrived at in the opinions. 

First, the leading opinion endorses the Union of India's submission that a statutory provision cannot be 'read down' without giving an opportunity of hearing to the Union as it's interests stand to be prejudiced by such a verdict. The judgments under review were all ordinary appeals / bail hearings, not constitutional challenges to the provisions, and an exercise of 'reading down' of clauses could not have taken place in such proceedings.  

Second, both opinions endorse the view that comparative law can only be used with great care on account of the perceived uniqueness of India's constitutional regime. It has been held that one of the main problems in Raneef, Arup Bhuyan, and Indra Das was their overzealous reliance upon U.S. cases without adequately appreciating the difference between the two jurisdictions; specifically, the limits crafted upon Article 19(1) by Article 19(2) and 19(4), which seemingly were absent within the U.S. framework. 

This second point about the uniqueness of Article 19 was at the heart of why Arup Bhuyan (Review) read the legal provisions in question differently from the earlier judgments. According to both opinions, and the Union of India, these earlier judgments had completely ignored the import of Article 19(4) which had been amended in 1963 to allow restrictions on the freedom to form associations where it may prejudice interests of the sovereignty or integrity of India. A declaration that an organisation is 'unlawful' under the UAPA means that these interests are at stake, making it a reasonable restriction. This perspective was not appreciated in the earlier 2011 judgments.

The process by which a declaration of an organisation as 'unlawful' under the UAPA takes place was given great emphasis by the Union, and the Court. It was not an overnight proclamation, but the result of an 'adversarial' process  overseen by a sitting High Court judge, where members had the right to appear and object, and in which the ultimate declaration was widely publicised. The offence only punished persons who had been, and continued to be, members. Surely, there could be no imagined prejudice for 'passive' members who continued with membership after all these steps were taken under law.

The Many Missteps of Arup Bhuyan (Review) 

Understanding the correctness of the conclusions arrived at in Arup Bhuyan (Review) is impossible unless we go back to the source of the problem — the judgments under review. Proceedings chronologically (not from date of filing but date of judgment) we start with Raneef which was a bail case, where no offence of Section 10 UAPA was involved as per details available in the High Court verdict which was challenged in the Supreme Court in Raneef. 

Why did the argument of membership come up at all? Because the state made it an issue, even as it did not specifically invoke the membership offence instead choosing to go for conspiracy ones under UAPA. An incriminating circumstances raised was that all accused were either members or office bearers of PFI or SDPI which could be confirmed with recoveries made during investigation. Neither PFI nor SDPI were organisations that had been banned at the time, but to set the record completely straight on the issue, both the High Court and Supreme Court observed that merely being a member of some organisation could not lead to the conclusion that the accused was part of a conspiracy to murder hatched by specific people also alleged to be members of the same organisation. 

Next, we have Arup Bhuyan and Indra Das, both being TADA cases with similar facts. The accused was alleged to be the member of a banned terrorist organisation, on the strength of a confessional statement and no other material, and thus convicted under the TADA membership offences [Section 3(5)]. Notably, the TADA offence was not phrased like the UAPA one, and punished any person who was a member of a terrorist organisation — clauses that have been retained for terrorist, not unlawful, organisations under the UAPA as well. 

The Supreme Court in both judgments first concluded that proceeding only on a confession was not good enough to convict a person. But then it turned its attention to the unfairness of the provision in question which seemed to punish mere membership. In Arup Bhuyan the Court observed that even if the state had proven that a person was a member, it had not established that he was an 'active' member of the terrorist organisation, and nothing less would satisfy a conviction. It applied this conclusion to the facts in Indra Das as well. It was in this regard that it cited various U.S. decisions and Indian decisions in both Arup Bhuyan and Indra Das, to finally hold in only the latter case that its conclusions would apply to other similar offences which punished mere membership of organisations such as Section 10 of the UAPA.

Having read these three judgments, the fault-lines running through Arup Bhuyan (Review) become starkly apparent. At the outset, it is clear that the offences under Section 3(5), TADA and 10(a) of the UAPA were not identically worded, so a big chunk of the Court's reasoning regarding the fairness of Section 10 of the UAPA as being a reason to review the 2011 judgments would not apply to Section 3(5), TADA.  

Next, it is plain as day that the judgments did not blindly follow American precedent as they were now being accused of doing, but considered them in light of the Indian landscape. Also, to suggest that the U.S. landscape has no limits to free speech is worse than disingenuous, yet this is the broad generalisation that Arup Bhuyan (Review) subscribes to. 

To show the distance between the U.S. and India, the Court invokes Babulal Parate on the urging of the Union, and conclude that public order could justify pre-emptive strikes against speech. However, looking at a case allowing for preemptive restrictions on certain rights on account of public order such as Babulal Parate in a context of punishing persons for being members without showing anything more, is like using a chainsaw to fix your fridge. 

The reason behind invoking Babulal Parate, and raising a furore around the three judgments not having considered Article 19(4), was because the Court completely misunderstood the question at times in Arup Bhuyan (Review). Nobody claimed, or held, that the legislature is out of bounds creating laws that punish membership of banned organisations on grounds of a perceived danger to the sovereignty and integrity of India. That battle was lost in 1963 and then in 1967. The issues here were of a different order — could I be punished for merely having been a member of an organisation that was banned because it had been found as posing such a threat? Would all members go to jail, because the organisation was banned? 

Key here is another feature which the Court pays surprisingly little attention to — membership is not a defined concept within the UAPA or TADA. We are not dealing with neat lists of shareholders, but a hazy group of people where membership would depend upon perceptions and beliefs. The facts in Raneef, Arup Bhuyan and Indra Das had shown us that proving membership did not need much more than a confession and recoveries of inconvenient literature (even the Communist Manifesto might do). The entire burden of proof at trial would, in effect, stand reversed upon the accused if mere membership became the crime as the state would claim that the fact of continued membership was only within the knowledge of an accused (Section 106, Indian Evidence Act). Which would bring us to a situation where nothing short of a loud denouncement of one's beliefs and memberships would be sufficient to erase any doubts about the matter. Or, as it used to be called during the inquisition, oaths of loyalty.  

By concluding that the offence needed something more than merely being a member, the 2011 judgments had inserted a measure of fairness in line with what the Supreme Court had done in a variety of contexts in the past; none of those judgments being constitutional litigations with the Union of India in attendance, but regular criminal appeals where the liberty of persons was at stake. Foremost among these being the offences punishing possession of contraband, where courts simply read the clause to require that conscious possession must be proven. Even the judgments regarding exclusion of showing any intent or knowledge, such as in Mayer Hans George, required the court to determine whether this was the only justified way to read the statute, on its own terms and its consequences. No effort was made to undertake this exercise in Arup Bhuyan (Review) and the Court simply accepted this contention at face value. 

Is the Glass Still Half Full?

Arup Bhuyan (Review) is sparsely reasoned, sure. But zoom out, and what you see is that this decision is a microcosm of the various contests that the Indian Constitution failed to resolve even as it safeguarded various civil liberties. It never confronted state power head-on, instead adopting an approach where small zones of freedom were carved out from the overarching might of the state to at least allow for the Davids to try and battle Goliath. To call this a balancing approach is farcical, yet this notion of balancing is what has become best associated for the courts themselves when they deal with issues of fundamental rights. In Arup Bhuyan (Review) we get another reminder of just how skewed this balance always was in favour of the state's interests—many of the judgments relied upon by the Court are from the 1960s—and how much farther it can tilt in times when the popular discourse is rife with ideas of threats to security and sovereignty. This privileging of public interest even under Article 21 is as ominous for the present times as is the alacrity with which the Supreme Court in Arup Bhuyan (Review) has accepted the submission that the Union of India must be heard before a court reads down a statute.  

So why do I say that the glass can still be seen as half full? Because there is still enough life left in Raneef, Arup Bhuyan, and Indra Das and many other judgments to allow the Davids to keep fighting. Since Raneef was not dealing with the membership offence, its observations that mere membership of a banned organisation is not an incriminatory circumstance to establish that I had conspired with other members of that specific organisation to commit crimes, would still stand. And since the injustices are far greater in relation to terrorism offences than those pertaining to 'unlawful activities' (both being separate concepts under UAPA), these findings (coupled with those in the more recent judgment of Thwaha Fasal) remain invaluable. Similarly, the observations in Arup Bhuyan and Indra Das that convictions for membership offences will not follow solely on the basis of purported confessions would remain valid and useful to combat eventual prosecutions. Lastly, the Court in Arup Bhuyan (Review) limits its observations to membership of the 'unlawful' organisation under Section 10 of the UAPA and not those clauses that pertain to membership of terrorist organisations, where the arguments of mens rea would still be available.   

This is a mightily optimistic reading of the lay of the land. But what is left if even hope is lost? 

Justice Must Not Only Be Done ....

[caveat: this post can fall in the rant domain unlike the usual content on this blog]

I must admit, I have not always fairly appreciated the contribution made by the Indian Supreme Court to our legal system. Its not without reason that a general sentiment prevails in country that the Court remains a white knight amidst the prevailing corruption. The problem is, and pardon the recurring rhetoric, we forget that with great power came great responsibility. The bigger problem actually is, that we forget appearances are often deceptive. What appearances? The appearance of the judiciary having more power than it possesses. The Court has taken up the role of investigator, judge and executioner. What it has stopped doing over time, is providing steady and coherent adjudication of legal issues. The multitude of voices emerging from the Court usually lends itself to a noisy cacophony contributing to the chaos. That's not all. This hyper-activism is corroding our democratic process. A graph would plot well how increased judicial activism correlates with decreased public participation in democratic processes. Maybe that's why Justice Frankfurter advised Sir B.N. Rau against investing the judiciary with power to set aside laws made by an elected legislature. He believed in a democracy, that must remain the prerogative of the electorate, and not the decision of an un-elected judiciary. 

Yesterday, the Court had donned its executioner hat, and in fine form. After what has been labelled as an "unprecedented day" in its history, it confirmed the death sentence for yet another human being, who was hanged to death merely hours later. Imagine, dying because you managed to convince only 1 rather than 2 other human beings that you deserve to live. We condemned the white men who sent Indians to the gallows. It seems like our condemnation was only with the choice of executioner. Mr Seervai observed the same in context of our retention of the ordinance powers with the executive. In any case, the curious case of death by judgment is the procedure seemingly invented over time by the Supreme Court. Its procedure which the Court itself seems only too happy to ignore. Take this latest episode from the start:

a. The TADA Court issued a 'suo motu' death warrant on 30.04.2015 without giving the accused any opportunity to defend himself. The execution was fixed for 30.07.2015, a decision conveyed to the convict only on 13.07.2015. As opposed to the guaranteed 90 day period for alternate remedies to death row convicts [Shabnam v. Union (WP Crl. 89/2015)], the convict here had only 17 days, for no fault of his own.

b. This interpretation of procedural laws was held by Justice Misra as not being retrospective, thereby setting aside this objection. Its rather settled though, that retrospective operation doesn't concern procedural rules. Just look at how many appeals are getting affected by the recent re-interpretation of Section 65-B of the Indian Evidence Act.

c. Suddenly there is an objection with the second mercy petition, where it is often seen that multiple clemency petitions are preferred by convicts when new grounds emerge. Short shrift was given to the new grounds here - schizophrenia - despite the recent concern shown by the Court to such cases in Shatrugan Chauhan & Ors. v. Union [WP Crl. (55/2013)].

d. The aforementioned case also held that 14 days must pass between rejection of the mercy petition and the execution, for the prisoner to "mentally prepare himself". Justice Misra observed the delay in filing the fresh mercy petition meant staying the execution would be a travesty of justice. So we mean that although someone is certainly being executed, it would be a travesty to postpone that death for a few more days?

e. Given these new grounds, it still took less than half a day (record time in fact) to reject the mercy plea. If any important decision is taken by the executive within hours, would it not normally become suspect for lack of due application of mind? Was there a fair consideration of the fresh grounds? 

In hindsight, it appears that the only reason the Court was convened at 3 AM was to ensure no changes were required of the Nagpur execution. Take a moment and go back to the narration of events which you'll find splashed across the news. Forget about the sensationalism. Take a look at that supposedly neutral chimera called the law as it stands today on the issue of executing another person. Just ask yourself: was justice done, and was it seen to have been done if viewed from the eyes of an outside observer? Any law student will tell you that justice must not only be done, but be seen to be done, and I don't think the answer is an easy one here. Our Court is Supreme but not infallible. Days like this are painful, and costly, reminders of this harsh reality.

Guest Post: Arup Bhuyan, Article 19(1)(a) and Bail Jurisprudence in Terror-Related Cases

I am very proud to present a guest post by Mr Gautam Bhatia, who is currently practising law in Delhi and is responsible for the Indian Constitutional Law and Philosophy Blog. 

Introduction

The distinction between “advocacy” and “incitement” is one that is familiar and important for constitutional courts world over. Advocacy of dangerous and subversive ideas is constitutionally protected, unless it rises to the level of incitement to violence, or to lawless action. In India, the distinction has had a troubled history, but it was endorsed most recently last month by Justice Nariman in Shreya Singhal vs Union of India, while striking down S. 66A of the IT Act for its failure to distinguish between the two concepts. Four years ago in 2011 though, the Supreme Court had already distinguished advocacy and incitement in a little-publicised, but extremely important case: Arup Bhuyan vs State of Assam.

Appreciating Arup Bhuyan

The case involved a challenge to the appellant’s conviction under Section 3(5) of the now-repealed Terrorist and Disruptive Activities (Prevention) Act [“TADA”], which criminalised “membership” of a terrorist gang or organization. This provision is in pari materia Sections 10 and 20 of the Unlawful Activities Prevention Act [“UAPA”], which replaced the TADA as the umbrella legislation for prosecuting terror suspects. While setting aside the conviction, Justice Katju read down S. 3(5) to save it from unconstitutionality on the grounds of Articles 19 and 21 of the Constitution. He did so by distinguishing passive from active “membership”, and restricted the latter to actual commission of violence, or incitement to violence. This distinction, naturally, closely tracks the difference between advocacy and incitement.

Arup Bhuyan distinguished between active and passive membership in a way crucial to UAPA cases, but beyond its conceptual articulation of the issues, that decision itself did not break new ground. In State of Kerala vs Raneef, decided in 2011, the Supreme Court upheld the Kerala High Court’s grant of bail to a person accused of UAPA offences, for being a member of the Muslim group “Popular Front of India”. Evidence, as ever, included “certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad'.” The Court noted that there was no prima facie evidence against the accused to warrant the restrictions on bail under S. 43(D)(5). Possession of literature was found insufficient to demonstrate active membership, and the doctrine of ‘guilt by association’ was unknown to the Constitution. A few months before, in Vishvanath vs State of Gujarat, another UAPA case built on possession of literature/propaganda, the Gujarat High Court held that “possession of such material without there being any overt act or actual execution of such ideas by itself would not form or constitute any offence.”

The importance of this jurisprudence cannot be overstated. In India, where trials for terror cases drag on for years, bail is perhaps the most crucial safeguard of personal life and liberty. But its importance is perhaps matched only by its fragility, evident upon evaluating the effect of the decision on bail jurisprudence in terror cases.

Arup Bhuyan: Impact

Section 43D(5) of the UAPA restricts the discretion of courts in granting bail: the accused “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.” In May 2011, the Anti-Terrorism Squad arrested six members of the cultural group, the Kabir Kala Manch, for offences under the UAPA. It was alleged that the KKM had close links with the banned Communist Party of India (Maoist), which was sought to be proved through the recovery of allegedly “incriminating literature and propaganda”. Accordingly, the Sessions Court refused to grant bail.

Nonetheless, in two separate applications before the Bombay High Court, Justice Thipsay granted bail. In doing so, he relied directly on Arup Bhuyan. Possession of literature relating to a banned organisation was not, in itself, prima facie evidence of active membership as understood in Arup Bhuyan. Consequently, Justice Thipsay held:

     “Since none of the applicants is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular violent act or crime, they cannot be held, prima facie, to have committed the offences in question. Though it appears that they had come in contact with the members of the said organization, and were perhaps learning about the philosophy and ideology of the said organization, they cannot be prima facie held as offenders. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members - much less such members as would attract the penal liability - of the said organization.”

Conclusion

In conclusion, it is also important to note that the State has asked for a review of Arup Bhuyan. In light of the discussion above, it is submitted that setting aside or watering down Arup Bhuyan will present a grave risk not just to free speech jurisprudence, but more directly and immediately to the right to personal liberty and fair trial under the Constitution.

(The author has been unable to find public-domain links to some of the cases cited in this essay. He welcomes any assistance on this issue.)

In Terrorem: Bow thy Humble Supplicant

[Caveat: this post may be tagged as a rant]

During my brief and uneventful stint at the helm of National Law School of India Review (NLSIR), I was involved with the hosting of a Symposium which concerned the apparent conflict between security legislation and individual liberty. In the interests of ensuring security, the legislature seems overeager to withdraw procedural and other safeguards guaranteed to accused persons which help ensure individual liberty is not whimsically compromised. This well documented phenomenon cuts across jurisdictions and has been extensively written about. My personal favourite remains Professor Andrew Ashworth's Hamlyn Lecture of 2002, which can be found here. 

Why talk about it here? Because the recent episode surrounding the Gujarat Control of Terrorism and Organised Crime Bill 2015 (GCTOC) in times of relative peace makes one think that there is a long way to go. As is already known to most of us, the Bill dilutes several procedural and evidentiary rights guaranteed to an accused to presumably help secure convictions. I stress upon this aspect of relative peace: most instances of stringent anti-terror legislation rode high upon the great wave of emotion generated from particularly terrifying episodes of violence. The TADA Ordinance of 1985 and the 1987 Act were the aftermath of gruesome riots in the 1980s. MCOCA came at a time Mumbai was engulfed with mob violence in the 1990s. POTA came in 2002 after attacks on Parliament in 2001. The infamous Patriot Act in the USA came after 9/11. Where is the attendant terrorist plot behind the GCTOC? There is none, which is why support for the Bill must provoke serious questions about where society stands on the issue of protecting individual liberty. 

These statutes continue to strike me as rather odd. Considering the gravity of the charge, one assumes courts require the most reliable evidence to conclude the question of guilt or innocence. But repeatedly we find the system turning to ends-based reasoning and providing severe dilutions which make it possible to lead sub-standard evidence as proof of guilt. A prime example being the favourite provision of rendering confessions to police officers admissible. Prosecutions for serious crime charges through statutes which relax the requirements of proof are too high a cost to offer society a placebo, i.e. its a bad argument to say we need these laws for society to think something is being done by the police. It in fact grants the police legislative backing to take an easy way out, which they won't mind and thus resort to adding serious crime charges to an array of situations as has happened with the MCOCA.  

The Latin phrase In Terrorem refers to the practice of invoking fear as a basis to seek compliance from individuals to protect private rights. It seems to have found immense favour with the State. By enhancing the repertoire of offences to label nearly everything a crime on one hand and then relax proof requirements on the other, fear is soon becoming the sole basis to secure our political obligation to the State. History bears witness to how revolt soon follows.