UAPA has been under sharp focus due to numerous recent events. UAPA was enacted in 1967 and gained prominence after the 26/11 Mumbai Attacks. UAPA provides special procedures for deciding the cases with respect to terrorism and unlawful activities.
Just like CrPC the provision of bail is also available under Section 43D of UAPA. A competent magistrate under Section 437 CrPC and, High Court, district Court or sessions court under Section 439 CrPC can grant a regular bail. Default bail can also be granted under Section 167(2) CrPC read with Section 43 D (2) of UAPA, I.e., 30 days after police custody and 90 days (about 3 months) after judicial custody in cases where the filing of charge sheet is delayed.
Amendments in UAPA
In the year 2004 it can be said that there were a lot of changes being introduced by the then UPA led government to the UAPA statute. The definition of ‘terrorist act’ and ‘terrorist gang’ were taken from the repealed POTA and were introduced in UAPA. Though it seemed like the statutes such as POTA and TADA were repealed but many of their provisions were included in the amended UAPA. The amendment of UAPA after the Mumbai terror attacks gave a broad definition of terrorist act and increased the pre charge detention time of accused to 180 days and gave the courts right to deny bail even if a prima facie case was made against the accused and court believed it to be true. The constitutional right to a fair trial was denied to the accused along with the presumption of innocence and right to trial which is guaranteed under Section 51 of CrPC. Presumption of innocence until proven guilty at the end of trial is one of the basic principles of the indian criminal system. UAPA has taken away this right from the accused as a person can be labelled as terrorist even in the absence of a judicial trial or scrutiny. The arrest of an accused under UAPA is different from that under CrPC as the arrests are majorly made on the grounds of abetting or advocating unlawful activity, terrorist acts, raising funds for or conspiring for a terrorist activity. Though the Indian Constitution provides various safeguards to restrain the misuse of the strict provisions of UAPA which are-
- In the case when a person is arrested under any preventive detention act, he/she can be kept in custody for 90 days (3 months) without the filing of a chargesheet at the first instance. If the detention needs to be extended the case should be sent to an advisory board for approval which should consist of a person qualified enough to be appointed as a judge of the High Court.
- Detention grounds should be informed
- The earliest opportunity of representation against the detention should be given to the accused
The most significant and the most contentious change introduced in UAPA in the year 2019[1] gave the power to the government to designate ‘individuals’ as terrorists by amending Section 35 and 36 of the parent act which originally only empowered the government to declare ‘organizations’ as terrorist for carrying out ‘unlawful’ activities. This act basically punishes the individuals for commission, funding and support of any unlawful and terrorist activity. Even the vague act of questioning the territorial integrity of India is termed as terrorist activity and is held to be contradictory to the provisions of the act. The other vague act being causing disaffection against India which is also covered under UAPA. The investigative authority can label a person as terrorist merely based on suspicion and doesn’t have to give any substantive reason before doing so.
In order to counter these loopholes, two separate petitions were filed in the Supreme Court i.e., Sajal Awasthi v Union of India[2] and Association for Protection of Civil Rights v Union of India[3]. Both these petitions were heard together by the court as they challenged the constitutional validity of the amendment of Section 35 and 36 on the ground that these amendments are violative of Article 14 (Right to equality before law), Article 19 (Free expression) and Article 21 (right to life) of Indian Constitution. The major argument in both the cases was that the act of labelling an individual as a terrorist without any judicial scrutiny and that too before the trial has commenced will pose grave injustice and would be against the principle of natural justice.
Some provisions of the act are contrary to the principle of natural justice as they don’t give a chance to be heard before he/she is labelled as a terrorist by the investigative agency. Furthermore, the proviso of Section 43A puts the burden on the accused to prove that they are not guilty of the offences made out against them which are again contrary to the basic principles of criminal law. Here the investigative authority also has the authority to search, sieze and arrest the accused merely based on suspicion.
Bail Mechanisms under UAPA
There are no specific conditions given under UAPA that need to be met with for the grant of bail. However, the Hon’ble Punjab and Haryana High Court laid down some factors in the case of Harnarain Singh Sheoji Singh[4] which were again upheld by the Supreme Court in the case of CBI v Amaramani Tripathy[5].
- Nature of accusation and graveness of charges.
- Punishment severity
- Evidence against accused
- Consequences if the accused absconds
- Possibility of Witness tempering
- Health, age, sex of accused
Section 43D (4) of UAPA puts a prohibition on the application of Section 438 of CrPC when a person is arrested under the provisions of UAPA due to which the accused is unable to seek anticipatory bail in these cases, leaving the accused with the only option of regular bail. Section 43D (5) UAPA explains in what cases bail can be denied, I.e., in case there exists a prima facie reasonable ground for the accusations to be true which shall be based on the chargesheet or case diary and not on the merits of the evidence. The second part of proviso talks about the burden over prosecution, prosecution must prove that the allegations are prima facie true. There is no straight-jacket formula as reasonable grounds differ from case to case, SC in the Case of Jayant Kumar Ghosh v State of Assam[6] held that it should be proved that there is a probable case for believing that the accused has committed the act he is being prosecuted for. Therefore, reasonable grounds cannot be merely apprehension.
SC had set the standard to check whether the allegations are prima facie true in the case of NIA v Zahoor Ahmad Shah Watail[7]. Here, the court held that listing of reasons for grant or non-grant of bail is very much different from discussing merits and demerits of the evidence. It was held that the discussion on the merits or demerits of the evidence is not needed while deciding whether to grant a bail rather the courts are just required to apply their mind and see whether there is a possibility of involvement of the accused in the said offence or otherwise.
In the above case overuling the Delhi High Court ruling, SC held that the Hon’ble High Court had ventured into examining the merits or demerits of the evidence inter alia by going into the admissibility of the documents and the witness statements produced before the court by NIA. SC here held that the test of admissibility of evidence is the part of the trial. To determine whether the allegations against the accused are prima facie true the court must study “totality of the evidence gathered by the investigative agency, the case diary and the report submitted by investigative agency” rather than going into the admissibility of the evidence. Here the SC disregarded the provision of Section 43D (5) in the manner that the provision only mentions ‘case diary’ and ‘report’.
SC in numerous cases have granted bail to the accused even when all the requirements under Section 43D (5) of UAPA are not met. In the case of Union of India v K.A. Najeeb[8] it was held by the SC that the provision of Section 43D (5) doesn’t curtail the power of constitutional courts to grant bail on the ground of violation of fundamental rights. The Court here held that in the cases where the constitutional right of an accused to a speedy trial has been denied, then in those cases the courts can overlook the legislative policy behind the statute and grant bail. In another ruling[9] of Bombay High Court, it was held that bail restrictions should be imposed in harmony with the jurisdiction of constitutional court and held that the bench was entitled to grant the accused bail on the health grounds in exercise of the powers vested under Article 226 of Indian Constitution despite the rejection of bail on merits. In the case if the bail is denied to the accused, then it would amount to the dilution of the right available to the accused to seek relief on health grounds under Article 21 of Indian Constitution.
Recently a Supreme Court Bench comprising of CJI DY Chandrachud and Justice JB Pardiwala has held that the accused person is not entitled to the default bail only on the grounds that the chargesheet filed is incomplete i.e., it is without the sanction of valid authority. It was held that whether there is a sanction of a valid authority or not is not the question that needs to be addressed while taking the cognizance of the offence and can only be answered during prosecution and such prosecution starts once the court has taken cognizance of the offence.[10]
Conclusion
The rate of conviction under UAPA has been as low as two percent between 2015 and 2019 which is alarming. Even then the provisions of UAPA are being misused by investigative agencies in high profile and sensitive cases. Many activists and legal scholars have argued that such restrictions on the granting of bail and the extension of time period for the filing of chargesheet, has been misused by the government to deal with the criticism and imprison opposition under false charges. By the time the court reaches it’s decision and the accused are found to be innocent they have spent months or even years in jail and the damage is done.
The basic principle of criminal law I.e., ‘bail is a rule and denial is an exception’ is violated in the cases of UAPA as the courts are forced to be reluctant while granting the bail because of the provision of Section 43D. As the threshold for attracting the provisions of this act are low a person can be left in jail on mere suspicion of him/her being involved in the crime. The prima facie test given under UAPA gives an edge to the prosecution and is inclined against the accused and the burden of proof on the prosecution does not match the gravity of offence. Though there is a need for the provisions like Section 43D to fight the menace of terrorism but a fact that there is also a need of a safety net to safeguard the fundamental rights of the individuals by the misuse of these provisions by the investigative agencies cannot be ignored. Therefore it is justified to say that the burden of proof on the prosecution should be heavy so as to match the gravity of charge and the ambit of the judicial discretion should be broad enough while deciding whether to grant the bail to the accused under UAPA. The repercussions of UAPA and risk assessment of accused should be kept in mind will deciding upon bail applications under UAPA.
[1] Unlawful Activities (Prevention) Amendment Act 2019
[2] Sajal Awasthi v. Union of India, WP (C) 1076/2019
[3] Association for Protection of Civil Rights v. Union of India, WP (C) No. of 2019
[4] AIR 1958 Pun 133
[5] (2005) 8 SCC 21
[6] Crl. Appeal Nos. 12, 13, 14, 24 and 35 of 2010
[7] National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 SCC Online SC 461
[8] Union of India vs K. A. Najeeb (2021) 3 SCC 713
[9] Dr. P.V. Varavara Rao v National Investigation Agency Cri. Apeal-52.21
[10] JUDGEBIR SINGH, JASBIR SINGH SAMRA JASBIR & ORS. versus NATIONAL INVESTIGATION AGENCY Crl. A No. 1011/2023
Author: Anshul
Juris Centre 