As the onslaught of abuse under the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) continues with the recent incarceration of Dr. Hany Babu and the rejection of bail pleas of a medically ailing Varavara Rao as well as NLU-Delhi professor Sudha Bharadwaj, it becomes imperative to most fundamentally analyse the contemporary damage the UAPA has brought upon bail jurisprudence in India.
Restrictive bail conditions, in Special and Local Laws (‘SLL’) , such as §43D(5) of the UAPA, pose a challenge by substantially discrediting the theory of presumption of innocence to the detriment of the personal liberty of the accused. Being opposed to the principle of presumption of innocence, restrictive bail clauses invariably tilt the sacred balance between liberty and security that is required to be maintained while practicing judicial discretion fundamental to bail decisions. Restrictive bail jurisprudence in post-Independence India has not only found constitutional acceptance but has evolved to become more violative of fundamental rights by following a punishment-based model opposed to the standard regulation-based model of bail jurisprudence.
Construction of Restrictive Bail Jurisprudence in India
In 1935 the House of Lords identified presumption of innocence as the ‘golden thread’ running through the English criminal justice system. Thus, when the Criminal Procedure Code, 1861 (‘CrPC 1861’) came into being in India, bail law was largely disjunct from the principle of presumption of innocence. Under Section 156 of the CrPC 1861, a person accused of a non-bailable offence could be denied bail if the Court found reasonable grounds to believe that the accused was guilty of the crime imputed to him. This restriction continued with a slight change in the Criminal Procedure Code of 1898 [Section 497].
The 1923 Amendments to the CrPC 1898, therein restricted the categories of non-bailable offences in which bail could be denied only to those offences which carried a sentence of death or transportation for life [Section 497(1)] and this was replicated in spirit in the Criminal Procedure Code of 1973 (‘CrPC’). However, it was only in State of Rajasthan v. Balchand, that the Supreme Court of India convincingly asserted that to grant bail was the rule and to deny bail an exception. In Gudikanti Narasimhulu v. Public Prosecutor (‘Gudikanti’), the Court highlighted that, CrPC being cryptic in the matter of bail, the development of a smart jurisprudence surrounding such must simultaneously take into consideration liberty, justice, public safety, and burden of the treasury. It asserted that the deprivation of personal liberty, protected by the Article 21 of the Constitution, at the behest of rejection of bail was too precious a value which was compromised for judicial discretion involved in the process to be casual or arbitrary.
Restrictive bail jurisprudence seemed to have developed in 1950 when the Provisional Parliament attempted to amend the Essential Supplies (Temporary Powers) Act, 1946. In the debates, K.M Munshi forwarded the argument of a stricter bail regime inspired from the Defence of India Rules. Rule 184 of DIR disallowed bail until the prosecutor was heard and the Magistrate was satisfied that there were reasonable grounds to believe that the accused had ‘not’ committed the crime. The proposed provision denigrated the presumption of innocence by reversing the burden of proof.
According to Abhinav Sekhri, the inclusion of a restrictive bail clause in ESA in post-Independence India, nurtured a legacy of restrictive bail conditions in numerous SLLs of the future which included emergency legislations and anti-terror legislations. The restrictive bail provision [Section 20(8)] under the Terrorist and Disruptive Activities (Prevention) Act, 1987, was held to be constitutional in Kartar Singh v. State of Punjab (‘Kartar Singh’) furthering the line of argument that emphasising community safety could not be said to infringe the right to life of the accused.
The upholding of the constitutionality of restrictive bail in Kartar Singh relied largely on the uncontested existence of similar clauses in other SLLs, and primarily on the existing §437(1)(i) of the CrPC which resisted bail under certain conditions. While the CrPC evolved to be less restrictive in itself, its flagellations contributed to the construction of restrictive bail jurisprudence in India. With the 2008 Amendments to the UAPA, as is discussed in the next part, the standard replication of the restrictive bail clause adopted from the DIR was rephrased, bringing newer complications into restrictive bail interpretation.
Developments under the UAPA
Following the 2008 Amendments in UAPA, if the accused is charged of an offence under Chapter IV and/or Chapter VI of the Act and an opportunity has been accrued to the Public Prosecutor of being heard, the defendant’s application for bail can be rejected provided the Court finds reasonable grounds to believe that such accusations are prima facie true. The rephrasing comes with a substantial change in the spirit of restrictive bail clauses.
Previously the Court had the opportunity to interpret the erstwhile restrictive bail clause and the meaning of ‘reasonable grounds’ as used in ‘reasonable grounds to believe that the accused was not guilty’ was understood to be substantial facts and circumstances that by their very existence denoted that the accused was not guilty.
In National Investigating Agency v. Zahoor Ahmad Shah Watali (‘Watali’), the Court found the opportunity to define the phrase ‘prima facie true’ in the new restrictive bail clause. What the Court interpreted was that the practice must occur in the absence of elaborate examinations or dissections and clarified that the threshold to be satisfied by the prosecution under UAPA is lower as compared to prior restrictive bail legislations.
While comparing bail provisions of the UAPA with prior anti-terror legislations, the Law Commission noted that bail under the UAPA is more liberal as compared to its predecessors and that in previous anti-terror laws there was virtual prohibition on bail. Ironically, in Watali, the decision of the Delhi High Court which had previously granted bail by failing to find reasonable grounds to believe that accusations were prima facie true, was put aside by the Supreme Court on the basis of the reasoning that reliance may be placed not only on the material mentioned in the charge-sheet but also on ancillary evidence supporting the prosecution’s case. Any remaining doubt regarding magnitude of difficulty pertaining to obtainment of bail under UAPA stands clarified.
Remodelling restrictive bail in terms of regulation over punishment
H.L.A Hart attempted to provide a set of factors, the satisfaction of which, would provide an exhaustive definition of punishment. According to him a measure, to constitute punishment,
- must provoke discomfort,
- must be in response to a legally recognised offence,
- must be targeted at the actual offender,
- must be intentionally furthered by a second party,
- and such party must be an authority of the legal system which had recognised the aforesaid offence.
While assessing pre-trial preventive detention in terms of Hart’s test, we find that at least two conditions — that the measure must be in response to a legal offence and must be targeted at an actual offender, stand unsatisfied. This is simply because Hart envisaged the measures as coming into force post the commitment of the offence. Detention at the apprehension of recidivism, and thus denial of bail, on the other hand is concerned with prospective behaviour, and is by its very nature regulation based.
What remains to be assessed is whether restrictive bail, as it manifests in the UAPA is characteristically regulatory or punitive. The widely accepted three-pronged test [US v. Salerno; Bell v. Wolfish.] for such determination appears to be that —
- whether the measure was legislatively intended to be punitive,
- whether an alternative purpose to which such measure could be rationally connected is assignable to it,
- and whether the measure is excessive compared to the alternative purpose assigned to it.
It is the second and third factors which are of specific interest to us. It may be argued that the alternative purpose assignable to denial of bail under the UAPA is discontinuation of terror crime. But to determine whether the means applied is excessive, we shall have to resort to yet another test.
R v. Oakes (‘Oakes’) propounded a test to assess whether a measure was proportionate to its stated objective. The Oakes test
- looks for a rational connection between the means and the goal,
- attempts to determine whether the measure is the least intrusive means of achieving the objective,
- and analyses the overall proportionality between negative effects of the measure and the objective sought.
We find here that restrictive bail under the UAPA particularly fails the second condition, not being the least intrusive means of achieving the objective.
This may be understood by acknowledging that §43(D)5 is a non-obstante clause, which means that any benefit regarding bail accrued to the accused under the Criminal Procedure Code shall not apply where the charges are under UAPA. One of the important benefits that gets overridden in the process is the one accrued to persons under the age of sixteen, women, persons who are sick and persons who are infirm, who may be provided bail by the Court, even when the offence they have been accused of is non-bailable and holds a sentence of death or life imprisonment. Further, the very act of incarceration in public prisons for the sake of detention holds certain punitive value.
Pre-trial detention of minors, women, sick or infirm citizens post denial of bail in public prisons, as it occurs in India, is certainly gravely intrusive. As has been witnessed in the context of Safoora Zargar and G. N. Saibaba, the application of an objective measure disregarding the subjective health or social realities of the accused fails the proportionality test of Oakes. This denotes that detention and denial of bail under the UAPA is largely punishment based.
It must also be noted that this lack of proportionality is something the Supreme Court has been largely aware of. Recently, the Court while granting bail to Angela Sontakke, reasoned that the serious charges against her were required to be balanced against the facts that she was a woman, had spent years in custody and had yet to see her trial begin, and in the process deliberately ignored the provisions of §43(D)5. Similarly, in its release order for the grant of bail to Safoora Zargar, the Delhi High Court assented to the compromise forwarded by Solicitor General Tushar Mehta on behalf of the Delhi Police that there were no objections to her release on humanitarian grounds, taking note of the fact that she was more than three months pregnant when she was arrested in April.
In multiple instances, courts have had to overlook the policy of bail in UAPA to safeguard the liberty of the accused because the law and the underlying procedure in themselves do not promote proportionality. Unless there is an increased investment in prison infrastructure, including infrastructure for detention centres separated from public prisons both architecturally and principally, that are capable of catering to the needs of vulnerable classes of citizens, the punitive nature of such detentions cannot be addressed.
But perhaps the most pragmatic approach that may be adopted on an immediate basis is the inclusion of specific bail conditions under the UAPA, as already present in Section 437(1) of the Criminal Procedure Code, that safeguard the interests of persons under the age of sixteen, women, persons who are sick and persons who are infirm. Inspiration may be sought from the Drugs and Cosmetics Act, 1940 which also contains a restrictive bail clause but simultaneously dictates that if the Special Court so directs, an exception may be made for the above classes of accused. This may not result in an automatic recalibration but could be an important stepping stone.
Bail jurisprudence in India has developed into two distinct branches of philosophy — one, that holds individual liberty to be a mostly uncompromisable value and the other that perceives the negation of liberty at the behest of public security to be logical and constitutional. Restrictive bail jurisprudence is founded on the latter philosophy. But from the time of the ESA to the UAPA, it has contributed to the shifting of bail jurisprudence in the country further into the category of a punitive measure. Bail jurisprudence in India can be recalibrated in terms of regulation through measures that reduce the intrusive consequences of bail denial and ensure proportionality between the means and the objectives of the policy. This can enable the courts to practice discretion in the matters of bail more boldly without apprehending an absolute obliteration of the right to life and liberty.
 Defence of India Rules, 1915, Rule 184.
 H.L.A. Hart, Punishment and Responsibility 4-5 (1968).
About the Author: Sushovan Patnaik [2019-24] is pursuing B.A LLB. (Hons.) from West Bengal National University of Juridical Sciences, Kolkata