• Socio-Legal Review

Panel Report - Jail is the Rule: Bail Jurisprudence under the UAPA

On July 10, 2021 the Law and Society Committee, National Law School of India University organised a panel discussion on ‘Bail Jurisprudence under the UAPA’. In the wake of Father Stan Swamy’s passing, a panel consisting of Sr. Adv. Ms. Rebecca John,[1] Sr. Adv. Mr. Mihir Desai,[2] and Adv. Mr. Abhinav Sekhri[3] scrutinised the provisions for bail under the draconian Unlawful Activities (Prevention) Act, 1967 (‘the UAPA’).


The moderator, Ms. Megha Mehta,[4] began the discussion with a brief recapitulation of the facts leading up to the unfortunate demise of Father Stan Swamy on July 5, 2021. She briefly touched upon the Elgaar Parishad incident, the ten-thousand-page chargesheet filed by the National Investigative Agency in 2020, and the arrest of Father Stan Swamy for allegedly conspiring with Maoist forces and for being empathetic with their cause.[5] Ms. Mehta also highlighted the fact that Father Stan Swamy had filed a petition challenging the constitutional validity of §43D(5) of the UAPA,[6] arguing that the said provision made it extremely difficult to get bail and was violative of his constitutional rights.[7] This argument was also reflected in the Delhi High Court judgements which provided bail to Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha.[8] The Bench held that a protest against a law or policy should not be equated with terrorist activity under the UAPA.[9] Ms. Mehta further referred to the history of the UAPA, and how the grammar of securitization around the enactment circumvents any critical analysis thereof – necessitating an open discussion of this issue.


I. Why does bail exist? Bail Provisions under General and Special Laws


Ms. Rebecca John began the discussion with her analysis of bail provisions, first calling attention to bail jurisprudence under general law. She stated that the objective of granting bail is to secure the appearance of the accused in court at the time of trial. Courts hearing applications for bail analyse whether continuing incarceration is imperative to ensure this. Therefore, a restriction on the liberty of the accused will only be justified if they pose a ‘flight risk’ or can potentially manipulate the trial, if granted bail. These ‘reasonable grounds’ legitimise the accused’s being kept in custody. This was also highlighted by the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation.[10] Ms. John then referred to the case of Prabhakar Tewari v. State of Uttar Pradesh,[11] wherein bail was granted to the accused although, as per the chargesheet, the victim had died of multiple gunshot wounds.[12]


She also put forth a relevant observation made by Justice Krishna Iyer in the case of Babu Singh v. State of Uttar Pradesh,[13] wherein he noted that release from the inhumane conditions of sub-jails allowed the accused persons a better, fairer chance to defend themselves in court. These points constituted Ms. John’s contextualization of bail jurisprudence under general law, which she juxtaposed against the unlike application of corresponding provisions under special legislations.


Various special statutes have been enacted for different offences, leading to the creation of exceptions to the general provisions of criminal law. Ms. John restricted her analysis of bail provisions under special legislations to four statutes, namely: the UAPA, the Prevention of Money Laundering Act, 2002 (‘the PMLA’), the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘the NDPS Act’), and the Maharashtra Control of Organised Crime Act, 1999 (‘the MCOCA’). §37 of the NDPS Act stipulates twin conditions for securing bail.[14] §21(4) of the MCOCA and §45 of the PMLA reflect a similar approach. However, §45(1) of the PMLA also contains a proviso which creates an exception for certain individuals such as women, individuals with illness etc., who may be granted bail if the Special Court deems so.[15]


Ms. John then analysed the bail provision under §43D(5) of the UAPA. She noted that the language of this provision is distinct from those mentioned above. The Court is not required to inquire into the ‘reasonable grounds’ for denying bail, as is needed under other special legislations. Instead, Courts must refer to the case diary or report prepared under §173 of the Code of Criminal Procedure, 1973 (‘CrPC’) to analyse whether the accusations against the accused are prima facie true.[16] This is a problematic provision as it allows courts to refuse bail while the general law provisions, namely §437 and §439 of the CrPC, empower courts to grant bail. She further argued that bail provisions under the NDPS Act, the MCOCA, and the PMLA require the Court to reach a finding on the twin conditions mentioned above, while the UAPA requires the Court to conclude that the allegations against the accused are not prima facie true. Therefore, these provisions are constructed with the view of keeping the accused in perpetual custody. This, she concluded, is in clear contradiction to bail jurisprudence which has evolved in India.


While the Supreme Court has diluted the extraordinary bail-denying provisions under some special legislations such as the MCOCA to a certain extent,[17] the judicial interpretation of §43D(5) has been troubling.


II. Bail under UAPA: Legislative Intent and Judicial Interpretation


Ms. John noted that theoretically, the threshold for granting bail under the UAPA is lower in contrast to the abovementioned statutes. She referred to the Parliamentary debates on the UAPA, where Member of Parliament Mr. P. Chidambaram assured that bail under the UAPA could only be refused if, upon perusal of the case diary or the report under §173 of the CrPC, the Court found the case made out against the accused to be prima facie true. In this paradigm, Constitutional courts would reserve the power to decide a bail application.


While arguing that the above provision is perverse in its construction, Ms. John expanded on the judicial interpretation of §43D(5), and how its use has led to the arbitrary denial of bail to many.[18] In Watali, the Supreme Court crystallised an almost impossible standard that the accused has to satisfy, which is to produce evidence to disprove the findings of the FIR. The Court effectively conducted a mini-trial to this effect, while ironically reprimanding the High Court for appreciating evidence. It held that the burden of proof on the accused was very high with respect to §43D(5) of the UAPA, and that the NIA had established their case. Contrary to the legislative intent, which did not envisage the grant of bail becoming nearly impossible, the Supreme Court held that the prosecution’s narrative was to prevail until successfully disproved by the accused.


Ms. John raised two pertinent questions in this regard. First, how is the accused supposed to show that the case of the prosecution does not cross this prima facie threshold of judicial creation? Paradoxically, the court is neither favourable towards examining the evidence presented by the accused nor willing to grant bail without disproving the prosecution’s case for which evidence needs to be appreciated. Second, Ms. John asked whether such an exercise can be concluded within a reasonable frame of time. If not, is it just and fair to hold an accused in custody for such a long period of time? To substantiate her argument, Ms. John referred to the Delhi Riots cases and the numerous individuals accused in the case. She further noted the slow pace at which the court is working towards adjudication in these cases- even the mere copies of the relevant police reports have still not been made available to the accused under §207 of the CrPC. She remarked that this trial, as well as the Bhima Koregaon trial, will take decades to reach a conclusion.


Before the amendments to the UAPA in 2008, courts were hesitant to examine evidence at face value. In State v. Tariq Ahmed and Ors,[19] a case pertaining to the 2005 serial bomb blasts, Ms. John appeared for Mohd. Rafiq Shah, a university student at the time who was accused of unlawful activity under the UAPA. He constantly pleaded that he was not in Delhi at the time of the blasts and was attending university in Kashmir. His interrogators wrote to the registrar of his university to verify his attendance and maintained the non-receipt of any reply. He was compelled to produce witnesses from his university to prove his attendance. After eleven years, his alibi was accepted and he was acquitted with no grant of bail during this period of time. Ms. John drew attention to the fact that the prosecution’s case depended on the fabricated testimony of a single witness, which was successfully discredited during trial. Despite this information, Rafiq’s application for bail was repeatedly denied.


She then made a broader point about the unnecessary attention paid by the courts to the labels attached to sensationalised cases. This impedes the grant of bail to the targeted individuals who are incarcerated on the basis of prima facie evidence, which the prosecution often fails to produce as it would damage their claims. Elaborating on such unreasonable delay, Ms. John referred to the case of K.A. Najeeb v. Union of India,[20] where it was held that statutory provisions such as §43D(5) do not restrict the power of Constitutional courts to grant bail, keeping in mind the rights granted under Part III of the Constitution. Bail can be granted in cases where the likelihood of trial being concluded within a reasonable time is slim, and a substantial amount of the sentence had been spent in incarceration. Thus, the two provisions can be harmoniously constructed to give force to the right to speedy trial and prevent §43 D(5) from becoming the sole criteria for denying bail.


Ms. John went on to consider the Delhi High Court judgement granting bail to Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha. In its order, the High Court noted the lack of any specific or particular allegation against the accused.[21] Since prima facie allegations were not made out in the present case, the conditions for bail under general law prevailed. 3 days after the judgement was passed, an interim stay was granted in a Special Leave Petition filed by the State, and it was held that the Delhi High Court’s judgement will not serve as a precedent to grant bail. Ms. John concluded her analysis by expressing her anticipation of the Supreme Court’s final decision on the matter.


As a closing statement, Ms. John reiterated the grave injustice perpetrated by such an austere bail provision and expressed her grief regarding Fr. Stan’s death.


III. Deliberate Structural Traps in the UAPA


Agreeing with the observations and arguments made by Ms. John, Mr. Sekhri continued the discussion in the direction of penology and criminal justice statistics. Mr. Sekhri highlighted the excessive pendency in the case of special offences, which is around 77%, as opposed to other crimes, which have pendency rates of around 40%-44%. Specifically, cases lodged under the UAPA have an absurdly high pendency rate of 95%.[22]


The sole safeguard against lodging frivolous cases under the UAPA is that an independent body must scrutinize whether an accusation and consequent detention can be made out under the statute. However, there are no measures to ensure that the preliminary investigation conducted by this ‘independent body’ is free from executive influence. According to Mr. P Chidambaram, the intent behind §45(b) was for bail to not be indefinitely unavailable. However, Member of Parliament Mr. Assadudin Owaisi countered this wishful thinking by explaining that first, public prosecutors would always oppose bail, and that second, the case diary which followed the chargesheet always contained details regarding the accusations. Therefore, the courts will inevitably find a prima facie case from a perusal of the allegations in the case diary, making bail unobtainable. It effectively whittles away the presumption of innocence of an accused.


IV. Judiciary- Executive Dynamics


Magistrate courts are restricted under Section 437 of the CrPC[23] to not issue bail in certain serious offenses; special laws such as the UAPA enlarge such restrictions on bail before the High Courts and the Supreme Court as well. Under the UAPA, the mere opposition to bail by the public prosecutor requires the court to look at the case diary and find a prima facie case. Mr. Sekhri pointed out that this trend of distrust in courts by the executive is not particularly novel or new.[24] However, post-1975 legislative exceptions to the general process have sought to narrow the ambit of judicial discretion – creating a slippery slope that needs to end somewhere.


Mr. Sekhri drew attention to the fact that the conflict between the courts and the executive machinery is the root of extraordinary bail jurisprudence.[25] Executive bodies levy conveniently serialised allegations against specific persons, spinning a narrative of securitization. This is then parsed into the relevant statutory crimes that correspond to this narrative of, say, a coup or a conspiracy. A vivid example of this is Bhima Koregaon. The police then has unbridled authority to pursue these cases under both the UAPA and the Indian Penal Code, causing the case to proceed on two different paths. The role of the courts is then reduced to testing this narrative spun by the executive, in the absence of which they would merely be rubber-stamping the decision already made by the executive.


Mr. Sekhri highlighted the need for judicial discretion over the grant of bail. In other jurisdictions, the investigative authorities and executive agencies might be much fairer, but in India, it is the norm rather than the exception for these bodies to oppose bail at every turn. Mr. Sekhri argued that laws such as the UAPA exclude the power of the court to test such narratives. In the light of how untenable charges are so heavily stacked against the accused, the law should not be beyond constitutional scrutiny.


The UAPA is merely a small inner circle amongst many concentric circles: no law can be seen in isolation in the Indian penal system. It is not that a certain class of judges alone adjudicates upon UAPA cases, or that a certain agency alone investigates them. These practices are embedded deep within the system and any conversation calling for reform with specific focus on UAPA must also seek larger systematic reform.


V. The Spectre of National Security and the Horror of Special Laws


Given how ‘national security’ is often used to justify the exceptions carved out of generally applicable laws, to what extent can the problems with special laws be addressed? Mr. Sekhri responded to Ms. Mehta’s question in two ways – with an ideal argument and with a practical argument.


He referred to Hussain’s idea of hyperlegality,[26] which was conceptualized in the aftermath of the 9/11 attacks when special anti-terror courts were established in the UK, opening the gates to overarching exceptions and deviations from the norm. One exception in one context leads to another emergency in another context. The line will always be drawn in the sand. Exceptions are also expanded to cover an increasingly wide ambit. He brought to attention the provisions of the IPC such as waging a war etc., which are similar to what the UAPA covers, and questioned the very need for such a special law.


He conceded that this ideal may never be seen in practice. Therefore, when exceptional regimes are created, one must place a heavy burden of creating a just law on the legislature. This must be imposed on the statute as a whole and not just individual provisions like bail. This is because when we look at the offenses under the UAPA holistically, it is evident that the statute is too vague in its construction. Additionally, he endorsed the guiding principle that the courts’ power in matters of bail should not be taken away. The way forward would be to regularise bail at least in the higher courts, so that there can be some pushback in the way bail is granted in the lower courts.


To a question posed by Ms. Mehta about whether the special laws to target terrorism are required and if it is just a particular government that is abusing them, Mr. Mihir Desai responded in both the affirmative and the negative. He recounted that both the TADA and the MCOCA were brought by the Congress government, but with the notable difference of containing ‘sunset clauses’. The UAPA is a permanent law.


He said that the question is not about whether they are being misused, as this is precisely the reason why they were created. They were being abused before and are being abused now as well. The only difference is that the degree of abuse has increased, such that there is now a selected targeting of academicians, DBA-rights activists etc., to suppress dissent.


VI. Father Stan Swamy’s Suppression under the UAPA


Mr. Mihir Desai was an associate of Fr. Stan Swamy and was saddened by the apathy of the executive during his final months. In his speech, he shed some light on how the UAPA played a significant role in exacerbating Fr. Stan’s deteriorating health.


Father Stan Swamy’s house was raided several times in both 2018 and 2019. Finally, he was arrested in 2020 on the charge of associating with banned political organizations. Fr. Swamy lived a humble life in a ramshackle, single room house – with only a ceiling fan that worked occasionally. Each time that he was investigated and his house was raided, the authorities maintained that he was never an accused in the Bhima Koregaon case, and that the proceedings were in relation to other cases. They seized his computer and electronic devices, which they eventually used to frame a case against him. This digital evidence was proven by Fr. Stan Swamy’s legal team to have been implanted with the help of foreign experts. Finally in 2020, when he was produced before the court, police custody was never asked for. The police did not request an interrogation. He was directly sent to jail. Subsequently, the investigative authorities repeatedly blocked his attempts at getting bail on regular and medical grounds.


The UAPA creates an offense by ‘association’ with a banned/criminal organisation. Mr. Desai pointed out that even in the case of the UAPA, courts have previously ruled that mere association is not enough to warrant arrest. Therefore, investigating authorities have come up with creative ways of proving active membership, such as planting evidence in electronic devices. As this cannot be disputed at the stage of bail but only at the stage of the trial, which happens much later, the accused and their family suffer for a long time. These ‘honest mistakes’ are specifically committed to produce a chilling effect suppressing dissent across society.


After being sent to jail, Fr. Swamy’s condition deteriorated rapidly. Initially, he could walk, go to the bathroom, and eat on his own with the help of some special tools (he was a patient of Parkinson’s). However, by the time his matter reached the High Court, he was in a wheelchair and could not use the bathroom or eat on his own. The hospital at the prison was in a terrible condition, and didn’t even have the facilities for simple blood testing. The judges had a virtual meeting with Fr. Swamy, after which they agreed to send him to a private hospital, where it was discovered that he had been showing COVID-19 symptoms for the past 7 days. He had not been tested previously despite the symptoms. Unfortunately, he passed away an hour before the matter came up on board.


Mr. Mihir Desai strongly declared that Fr. Swamy’s arrest under the UAPA was effectively a death sentence. The authorities knew he would not return from prison. After all, he was an eighty-four-year-old man with Parkinson’s. Even where co-accused Mr. Varavara Rao was granted bail on medical grounds, which is a humane condition for release irrespective of the charge being under the UAPA, Fr. Stan languished in jail with his worsening health. His arrest and the sessions court’s refusal to grant bail is what killed Fr. Stan. Mr. Desai hopes that his death initiates a movement towards the repeal of the inhumane law that is the UAPA.


VII. The Pandemic and the Decongestion of Jails – A Privilege?


The discussion was then steered towards bail jurisprudence in the context of the COVID-19 pandemic. Overcrowding in prisons has worsened during the pandemic. Mr. Mihir Desai pointed out that Indian prisons have a capacity of about three lakh people, but are presently overfilled to about four lakh prisoners. Out of all these prisoners, over 70% of them are still under trial. Most of them hail from poor backgrounds, and find it very difficult to get bail. This is both in terms of getting the money for security, and proving their fitness to return to society.


Ms. John had previously recounted how High-Powered Committees – set up by High Courts at the instruction of the Supreme Court to decongest jails – ended up setting free numerous convicts sentenced for serious offences like murder, while under-trial detinues booked under special legislations had to languish in prison despite the health risk. This, she said, was a clear violation of Article 21 of the Indian Constitution. It is this absurdity that exposed vulnerable individuals like Fr. Stan Swamy to the coronavirus, since he was detained despite prior health issues.


Mr. Desai further framed the problem as one of unjust discrimination against people on the basis of mere unsubstantiated allegations. He remarked that prisoners should have logically been released on the basis of age and health issues instead. However, neither the High Courts nor the Supreme Court had any luck with this issue, and allowed the order to stand.


VIII. The Way Forward


Ms. Mehta concluded the session by asking three questions to the panellists, which highlighted various other facets of the UAPA and bail thereunder.


Question 1. When discussions are held on subjects like the UAPA by people from a legal background, the unfairness and potential unconstitutionality is already presumed. However, a great portion of society believes that these laws are, in fact, fair. How do we, as law students, facilitate an open discussion with people on this issue?


Mr. Sekhri agreed with the above assessment and emphasised that these considerations should not be denounced. Recalling the 2002 Parliament attacks, he noted how nobody denied that there was a real threat to national security. But as law students, we need to use the critical thinking that we've been trained with, and look past the emotion at that moment. The reason for this is that laws made in a moment of emotion can last forever without sunset clauses. Therefore, as law students, we must be able to critically engage with the law in a forward-looking manner to facilitate discourse.


Ms. John brought attention to the Delhi Riots cases where accused persons saw multiple cases being lodged against them. These individuals have since been granted bail for most of these cases, except for those under the UAPA. Her client, Khalid Saifi, has been granted bail on the charge of murder, where the court went so far as to remark that the evidence looked like a total set-up. However, due to all the emotion and drama surrounding the UAPA charges, his bail application was rejected for the charges thereunder. She invited law students to question courts – when the individual cases have collapsed, why are they prosecuting the accused persons under the UAPA? What else, except for fairy-tales concocted in police stations, continues to keep people in prison?


Mr. Desai also requested students to go beyond the widely publicised issues of toolkits etc., and also pay attention to problems at the ground level, where many cases of sedition fail to garner the same attention. Father Stan Swamy was dealing with the cases of three thousand tribals in Jharkhand, who were punished for fighting displacement. We don’t talk about those three thousand people, and we have to realize that we need to pay attention to the reality around us, not just the popular image at the time.


Question 2. Lawyers recognize the issue with these cases, but in the judiciary there is a perceived hesitance to, for instance, declare austere bail provisions unconstitutional. How does one bridge the gap between the narrative spun by the executive and the function of the judiciary?


As per Ms. John, the reason for this hesitance is unknown. She speculated that this is due to some kind of external pressure that the courts are subject to, that advertises the accused persons as evil. Such an emotional narrative places a limit on judicial discretion, taking over the judicial process. It must be noted that whenever courts have wanted to deliver pro-citizen judgements, nothing has come in the way of such verdicts. So now, the judiciary must ask itself this serious question vis-à-vis the UAPA. Instances such as the toolkit case, where the trial court did grant bail to Disha Ravi, also occur as a result of the court’s introspection. Many lawyers also find the High Courts and trial courts dependable in this regard. But they are unsure when it comes to the Supreme Court. We can only hope that this trend permeates through to the upper tiers of the judiciary.


Mr. Sekhri pointed out that we have a system that perpetuates the status quo. It is very difficult to make a decision but very easy to defer and delay, waiting for future judges to resolve issues. Mr. Desai further expanded on this by noting the Supreme Court’s dichotomous rejection of pleas challenging the constitutionality of the Armed Forces Special Powers Act, 1958, the UAPA etc., alongside its vigilance in instances of gross misuse of such statutes. In Najeeb’s case,[27] the Delhi High Court came up with a creative solution to recognize the accused’s right to speedy trial after five years of detention in order to grant him bail.


However, when the Supreme Court rules on such matters, it is more reserved – it usually issues conservative rulings which refrain from calling into question the unfairness and oppression committed under the guise of the law, instead of creating binding precedent for the lower courts to adhere to.


Question 3. Have we gone too far in laying down precedent in the context of the Delhi High Court judgements?[28] Some are worried that it may be set aside in the Supreme Court.


Ms. John said that the judgement was a levelled one. It took into account the arguments on both sides, as well as precedents. It examined the evidence and held that it does not cross the prima facie threshold posited by the law. The evidence runs into thousands of pages, and thus, any discussion of the same would be lengthy as well. It now does not make logical sense for the Supreme Court to criticise an elaborate judgement and concurrently expect examination of the evidence to fulfil the bail requirements. The judgement is not excessive in length.


Mr. Sekhri recalled the day of the Supreme Court hearing on the matter. What stood out to the Supreme Court as exceptional was the fact that the bail judgement went into a hundred pages. He brought out the conundrum faced by the Delhi HC. If the court doesn't examine the evidence, its judgement is liable to be challenged, but if the court examines it, the judgement is liable to be stayed for length alone, on the tautological grounds of the Watali judgement. Mr. Desai interjected that the Supreme Court itself would find the Watali judgment runs into over a hundred pages.


Mr. Desai wrapped up the discussion on the expected Supreme Court judgment on the matter by laying down two possible ways in which it could materialise. The Court could either depart from the Watali judgement or pronounce version 2.0 of the same. As for the Delhi High Court order, Mr. Desai said that it was an excellent judgement, and that the High Court’s excursion into the definition of terrorism, and subsequent examination of whether the UAPA applied in the first place, was a valuable piece of reasoning to avoid the discretion-limiting bail provisions of the UAPA.




Anhad Kaur Mehta and Krishna Natesan acted as rapporteurs for the panel discussion. Chiranth S, Dhawal M, and Pratyush Singh provided research and scripting assistance for this report. They are second year B.A. LL. B. (Hons.) students at the National Law School of India University, Bangalore. The Law and Society Committee is a student committee at National Law School Institute University, Bangalore. Its broad mandate spans the socio-legal analysis of contemporary national and international events, with an aim to foster awareness and appreciation of law and policy in a more real and tangible sense. You can reach out to the committee at lawsoc@nls.ac.in.


References

[1] Ms. Rebecca John, Senior Advocate at the Supreme Court of India. Ms. John has 35 years of experience in trial advocacy, and has argued bail cases under the UAPA and other special legislations such as the MCOCA and the PMLA.

[2] Mr. Mihir Desai, Senior Advocate at the Bombay High Court. Mr. Desai is a human rights advocate who has represented various political activists in matters pertaining to freedom of speech, custodial violence, mass murders, and genocide. He represented Father Stan Swamy before the Bombay High Court. He is the co-founder of the Indian People’s Tribunal and the Human Rights Law Network.

[3] Mr. Abhinav Sekhri, Advocate at the Delhi High Court. Mr. Sekhri recently appeared before the Delhi High Court to argue Asif Iqbal Tanha’s bail application. This application eventually materialized into the bail order releasing Mr. Tanha, Ms. Devangana Kalita, and Ms. Natasha Narwal from state custody.

[4] Ms. Megha Mehta is a former Judicial Law Clerk to Late Justice M. M. Shantanagoudar.

[5] Kanchan Vasant Chaudhari, ‘From Bhima Koregaon to the death of Stan Swamy, a timeline of key events(Hindustan Times, 9 July 2021) accessed 10 July 2021.

[6] The Unlawful Activities (Prevention) Act 1967, s 43D(5) provides: Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person 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.

[7] Srishti Ojha, ‘Insurmountable Condition For Bail' : Stan Swamy Challenges Constitutionality Of Section 43D(5) In Bombay High Court’ (LiveLaw, 3 July 2021) accessed 12 July 2021.

[8] See Natasha Narwal v State of Delhi NCT 2021 SCC OnLine Del 3254; Asif Iqbal Tanha v State of Delhi NCT 2021 SCC OnLine Del 3253; Devangana Kalita v State of Delhi NCT 2021 SCC OnLine Del 3255.

[9] Anand Mohan J, ‘Delhi riots: HC grants bail to Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha in UAPA case’ (The Indian Express, 15 June 2021) accessed 10 July 2021.

[10] (2012) 1 SCC 40 [12]: From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

[11] (2020) 11 SCC 648.

[12] Ibid. “The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail.

[13] (1978) 1 SCC 579 [12]: We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to Prepare or present his case than one remanded in custody [...] The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

[14] The Narcotic Drugs and Psychotropic Substances Act 1985, s 37(1)(b)(ii): “where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

[15] The Prevention of Money Laundering Act 2002, s 45(1): “Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs” [also reflected in the Code of Criminal Procedure 1973, s 437(1)].

[16] The Unlawful Activities (Prevention) Act 1967, s 43D(5): Provided that such accused person 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.

[17] Ranjeet Singh v State of Maharashtra (2005) 5 SCC 294: The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. See Also Nikesh Tara Chand Shah v Union of India (2018) 11 SCC 1, wherein the twin conditions under s 45 of PMLA were read down.

[18] National Investigation Agency vs Zahoor Ahmad Shah Watali (2019) 5 SCC 1: By its very nature, the expression ‘prima facie true’ would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted.

[19] 'In Setback for Delhi Police, Court Acquits Two Accused in 2005 Serial Blasts' (The Wire, 16 February 2017) accessed 23 August 2021.

[20] (2021) 3 SCC 713.

[21] Tanha (n 8) [67].”In our view, on an objective reading of the allegations contained in the subject charge-sheet, there is complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence, contained in the charge-sheet that would make-out the ingredients of the offences under sections 15, 17 or 18 UAPA. Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation. Wanton use of serious penal provisions would only trivialise them. Whatever other offence(s) the appellant may or may not have committed, at least on a prima facie view, the State has been unable to persuade us that the accusations against the appellant show commission of offences under sections 15, 17 or 18 UAPA.

[22] Neha Singhal, ‘UAPA should go the way of TADA & POTA: IPC has more than enough provisions to deal with cases of terror and unlawful associations’ (Times of India, 6 July 2021) accessed 12 July 2021.

[23] The Code of Criminal Procedure 1973, s 437.

[24] See Badri Prosad v The State 1951 SCC Online Cal 293.

[25] The ‘executive machinery’ here refers to the police and investigative authorities like the CBI and the NIA.

[26] Nasser Hussain, ‘Hyperlegality’ (2007) 10(4) NCLR.

[27] Union of India v K A Najeeb 2021 SCC OnLine SC 50.

[28] See Narwal (n 8); Kalita (n 8); Tanha (n 8).

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