The UAPA, bail denial & violation of Article 21

ALMOST five decades ago, the Supreme Court in State of Rajasthan vs Balchand clearly held that "bail, not jail, is the rule." This principle was reinforced in Gurbaksh Singh Sibbia vs State of Punjab, where the court emphasised that the grant of bail is the rule and refusal the exception. These rulings continue to be foundational precedents governing bail jurisprudence in India.Over four decades ago, the SC in Hussainara Khatoon vs State of Bihar, while interpreting Article 21 of the Constitution, held that the right to a speedy trial is a fundamental right. This law also holds the field and has been reiterated on a number of occasions.Recently, in Jawed Ghulam Nabi Shaikh vs State of Maharashtra, the SC again emphasised that even under stringent laws like the Unlawful Activities (Prevention) Act (UAPA), the principle that bail is the rule and jail the exception remains applicable.It noted that prolonged incarceration before trial should not become a form of punishment without conviction, stressing the importance of personal liberty as enshrined in Article 21.Unfortunately, the harsh reality is that jail, not bail, has become the rule even though it violates the fundamental right of liberty, which inheres in every human being under Article 21 that provides that no person can be deprived of his life or personal liberty except according to procedure established by law.Under Article 19, every citizen has the right to freedom of speech and expression and to assemble peacefully without arms. Soon after the Emergency was revoked, the SC held in Maneka Gandhi vs Union of India that the procedure established by law envisaged under Article 21 must be a fair procedure.In our country, the normal rule is, 'innocent until proven guilty.' The burden lies on the prosecution to prove the guilt of the accused. However, there are certain laws, like the UAPA, which have turned these settled principles on their head.When the constitutionality of these laws was challenged, one of the grounds of challenge was that the laws could be misused. The SC rejected this contention. I am of the view that when any law changes the normal rule of burden of proof and imposes onerous conditions before grant of bail, then it is the duty of the courts to examine the material placed on record and decide whether the case falls within the ambit of the law concerned or not.Unfortunately, the SC in the Zahoor Ahmad Shah Watali vs NIA case took the view that at the stage of grant of bail, all that the prosecution states has to be accepted as the gospel truth and the court cannot go into the merits of the case.I am of the view that Watali's case needs reconsideration because when the liberty of any person is at stake and the fundamental rights of a citizen are being violated, it would be unfair to blindly accept the version of the prosecution. The court cannot be just a spectator. If that be the position, bail can never be granted in any case under the UAPA or other draconian laws.Fortunately, in Sheikh Jawed Iqbal vs State of UP, the SC held that the courts are not powerless to grant bail to accused persons even under the UAPA, especially when the criminal trial is moving at a snail's pace.In Jawed Ghulam Nabi Shaikh vs State of Maharashtra, the SC again reminded the trial and high courts of the well-settled principle that 'bail, not jail, is the rule.'The judgment delivered by the Delhi High Court refusing bail to Umar Khalid, Sharjeel Imam and others is against the well-settled principles of law. While it is true that there are serious allegations against the accused, the HC has failed to maintain the balance between liberty and incarceration.The best case made out against the accused, especially Umar Khalid and Sharjeel Imam, is that they were instrumental in mobilising support through the formation of WhatsApp groups and organising large-scale protests, including chakka jaam, against the Citizenship Amendment Act (CAA).Chakka jaam is nothing but a call to stop the wheels, or bring all things to a halt. This by itself has no connotation of physical violence. From the evidence discussed by the HC, I could not find any call or incitement to violence attributable to these two accused.The HC, while dealing with the issue of grant of bail on account of delay in trial, has relied upon the judgment in Gurwinder Singh vs State of Punjab. In this case, the SC relied upon the judgment in Watali's case.A review petition was filed in Gurwinder Singh's case, wherein a specific plea was taken that the SC had not noticed the judgments in various cases wherein the law laid down in Watali's case has been distinguished. While disposing of the review petition, the Bench held that it had decided the case in its peculiar facts and circumstances. Therefore, this judgment could not have been used as a precedent on the general principles of law.The Delhi HC has erred in holding that incarceration alone cannot constitute a ground for the grant of bail. This runs counter to the law laid down by the SC in a number of cases. Shockingly, the HC did not even deem it proper to direct the prosecution to complete the trial in a time-bound manner. Effectively, the accused can be kept behind bars indefinitely.The court engaged in an extensive discussion on conspiracy. The appellants contended that even if the prosecution's allegations were accepted, the offence would fall under Chapter 3 of the UAPA and not Chapter 4. Since the maximum punishment under Chapter 3 was seven years, bail should be granted. Addressing this crucial submission, the court held that while exercising appellate jurisdiction in bail proceedings, it was not required to delve into this issue. This is a grave error committed by the Delhi HC.When the liberty of a citizen is at stake and the issue raised is whether an offence falls within sections that would preclude the grant of bail, the court cannot abdicate its responsibility to examine the matter.When the Communist party held sway, the following slogan was raised in its meetings: "Ho Chi Minh, Ho Chi Minh, we shall fight, we shall win." Many sloganeers did not even know who Ho Chi Minh was. Unfortunately, in today's India, if the same slogan was raised, the argument addressed by the State would be that "we shall fight" is a call to arms and that the reference to Ho Chi Minh means getting arms from Vietnam. Sadly, some courts would refuse to grant bail.How we have regressed from 1977, when the 'bail, not jail' principle was laid down, and from 1979, when the right to a speedy trial was treated as a fundamental right, to a position where, after five years of incarceration, charges remain unframed, hundreds of witnesses are yet to be examined and bail is still denied? A disappointing judgment.Justice Deepak Gupta (retd) is former Judge, Supreme Court.

The UAPA, bail denial & violation of Article 21

Justice Deepak Gupta retd

Unlock Premium Insights in This Article