Skip to main content

Interpreting UAPA bail provisions: Is Supreme Court setting the clock back?

By Kavita Srivastava*, Dr V Suresh**

The Supreme Court in its ruling on 7th February, 2024 in   `Gurvinder Singh v State of Punjab’ held that its own well-developed jurisprudence that "Bail is the rule and jail the exception" will not apply to those charged under the UAPA.
Gurvinder Singh was  accused of being a member of `Sikhs for Justice', allegedly a pro-Khalistani group banned by India, for being in possession of cloth banners with the terms, `Khalistan Zindabad' and "Khalistan Referendum 2020'. While dismissing Gurvinder Singh’s UAPA bail application, the Court opined that UAPA was an exception to the ordinary criminal law and bail could only be considered if no prima  facie case was made out based on records before the court. 
The factual matrix did not indicate that the accused were involved in any violent act, but rather were charged under the draconian provisions of the UAPA for associated activities like raising funds for a terrorist act (sec 17), conspiracy to commit a terrorist act (Sec 18) and concealing a person knowing that such person is a terrorist (Sec 19).
The bail for the accused was denied following the precedent of the Supreme Court on bail under UAPA. Admittedly, the UAPA has a particularly draconian provision on bail under Section 43D (5), which states that the Court should not release the accused on bail, if there are ‘reasonable grounds for believing that the accusation against such person is prima facie true.’ This provision has been interpreted in a particularly harsh manner by the Supreme Court in `Zahoor Ahmad Shah Watali v National Investigating Agency’, (2019) due to which bail shall be denied if the accusation appears to be prima facie true based on materials on record. 
However, the rigours of Watali have been tempered by subsequent judgments of the SC itself, which the Bench comprising of Justices MM Sundaresh and Arvind Kumar appear to not have taken into account. What is particularly troubling is that the present ruling goes out of its way to ringfence the UAPA from the jurisprudence of the Indian Supreme Court which has sought to dilute its harshness by applying constitutional principles to the UAPA. In `Union of India vs Najeeb’ (2021), the Supreme Court granted bail under the UAPA, on the ground that the right to speedy trial is a constitutional right under Article 21. However, Justices Sundaresh and Kumar distinguish Gurvinder’s case from Najeeb’s case arguing that while in Najeeb’s case, trial was yet to begin, in Gurvinder’s case trial was under way with 22 witnesses being examined. However the Court misses the wood for the trees as the ratio in Najeeb’s case is that ‘statutory restrictions like Section 43D(5)’, do not ‘per se oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.’ In the Supreme Court’s opinion, ‘… the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence’. 
Similarly, the judgment of the Division Bench of the High Court of Andhra Pradesh in `Devender Gupta v. National Investigating Agency’ (2014), which is cited by the Supreme Court in this case  is important for the proposition that the Court should ‘strike a balance between the mandate under Section 43D(5) on one hand and the rights of the accused on the other particularly after the charge sheet is filed’.  One of the ways the balance is sought to be struck in this judgment  is by laying down factors which could constitute that a case is ‘prima facie  true’ and hence bail should be denied.  However, these factors are not applied to the fact situation and analysed with a view to ascertaining if there is ‘prima facie’ truth to the charges.   
In a final troubling conclusion, the Supreme Court privileges the UAPA over the Constitution, when it holds that ‘jail is the rule, bail is the exception…while dealing with bail applications under UAP Act.’ By so stating the Court reverses a core principle of constitutional justice articulated by the very same Court under the leadership of Justice Krishna Iyer.
Ten days later on February, 17th of 2024,  a Session Court in Delhi, denied bail to Sharjeel Imam who was accused of  ‘unlawful activity’ under Section 13 of the UAPA as well as sedition under Section 124-A. The Sessions Court seemed to follow the template set by the Supreme Court of reversing existing precedent. It should be pointed out that Sharjeel Imam had completed four years in jail and Section 124-A (sedition) was suspended with the Court acknowledging that due to the suspension of Section 124-A, ‘it cannot take into consideration Section 124-A’. The court nevertheless goes on to illogically assert that, ‘but if the acts and actions of the applicant are considered, in a normal dictionary meaning they can be termed seditious’.
It is deeply troubling that in spite of  credible and strong documentation by the Delhi Minorities Commission  that the violence was clearly preceded by a number of speeches by BJP leaders openly maligning anti-CAA protesters, the Court chooses to blame Sharjeel Imam for the violence without any evidence of the same. The conclusion that one seems to be left with is that when it comes to what the IPC calls ‘offences against the state’, the law will be bent to serve the interest of the  state.  Or as K.G. Kannabiran succinctly put it, “the law defines the offence, the state decides the offender”!    
Factual matrix of the case is an eloquent, but tragically ignored, plea for repeal of a law which criminalises right to speech and association
However, the ruling in Gurvinder Singh deserves greater censure than the session court ruling in the case of Sharjeel Imam, because it is a judgment coming from the highest court in the land and the Supreme Court cannot shirk its responsibility to uphold the Constitution and apply constitutional principles to laws like the UAPA.
The Gurvinder Singh judgment joins the sad list of precedents which besmirch the reputation of what has been called the world’s most powerful constitutional court. The Supreme Court has given in to the state’s blackmail that when it comes to any allegation related to the support for terrorism, the Constitution ceases to exist. One might indeed be forgiven for thinking that as far the Supreme Court is concerned, it has sworn to ‘bear true faith and allegiance’ to the executives charter, namely the UAPA and not the Constitution. This judgment weakens the democratic justice system and people's faith in justice. 
One hopes against hope that the Court rediscovers its role as a constitutional court and begins to apply constitutional principles in its interpretation of the UAPA and tempers the rigour of the law with a constitutional logic.
The factual matrix of the case is itself an eloquent, if tragically ignored, plea for the repeal of a law which criminalises the right to speech and association as well as an immediate suspension of its harsh bail provisions.  
Under this law, hundreds of innocent citizens across the country are being arrested and incarcerated for exercising their constitutional right to expression, association and assembly, against the government. Too many lives have been destroyed by the UAPA and these lives stand as testimony to the pressing need for its repeal. As the PUCL Report on the UAPA showed starkly, with a conviction rate in UAPA cases less than 3%, of all those arrested, the use of UAPA is shown to be clearly targeting dissenters and people raising questions about the State.  
The question is, however, at what cost? The end result is that persons arrested under UAPA spend many years in jail only to be declared innocent in the end and released. Who is to compensate these people? Shouldn’t action be taken against the police officials, across the chain of command, for abusing and misusing the UAPA? This is the larger issue of constitutional morality before all of us – the Supreme Court included – and should be kept in mind when deciding bail cases.
---
*President, **General Secretary, People’s Union for Civil Liberties

Comments

TRENDING

New RTI draft rules inspired by citizen-unfriendly, overtly bureaucratic approach

By Venkatesh Nayak* The Department of Personnel and Training , Government of India has invited comments on a new set of Draft Rules (available in English only) to implement The Right to Information Act, 2005 . The RTI Rules were last amended in 2012 after a long period of consultation with various stakeholders. The Government’s move to put the draft RTI Rules out for people’s comments and suggestions for change is a welcome continuation of the tradition of public consultation. Positive aspects of the Draft RTI Rules While 60-65% of the Draft RTI Rules repeat the content of the 2012 RTI Rules, some new aspects deserve appreciation as they clarify the manner of implementation of key provisions of the RTI Act. These are: Provisions for dealing with non-compliance of the orders and directives of the Central Information Commission (CIC) by public authorities- this was missing in the 2012 RTI Rules. Non-compliance is increasingly becoming a major problem- two of my non-compliance cases are...

History, culture and literature of Fatehpur, UP, from where Maulana Hasrat Mohani hailed

By Vidya Bhushan Rawat*  Maulana Hasrat Mohani was a member of the Constituent Assembly and an extremely important leader of our freedom movement. Born in Unnao district of Uttar Pradesh, Hasrat Mohani's relationship with nearby district of Fatehpur is interesting and not explored much by biographers and historians. Dr Mohammad Ismail Azad Fatehpuri has written a book on Maulana Hasrat Mohani and Fatehpur. The book is in Urdu.  He has just come out with another important book, 'Hindi kee Pratham Rachna: Chandayan' authored by Mulla Daud Dalmai.' During my recent visit to Fatehpur town, I had an opportunity to meet Dr Mohammad Ismail Azad Fatehpuri and recorded a conversation with him on issues of history, culture and literature of Fatehpur. Sharing this conversation here with you. Kindly click this link. --- *Human rights defender. Facebook https://www.facebook.com/vbrawat , X @freetohumanity, Skype @vbrawat

Urgent need to study cause of large number of natural deaths in Gulf countries

By Venkatesh Nayak* According to data tabled in Parliament in April 2018, there are 87.76 lakh (8.77 million) Indians in six Gulf countries, namely Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates (UAE). While replying to an Unstarred Question (#6091) raised in the Lok Sabha, the Union Minister of State for External Affairs said, during the first half of this financial year alone (between April-September 2018), blue-collared Indian workers in these countries had remitted USD 33.47 Billion back home. Not much is known about the human cost of such earnings which swell up the country’s forex reserves quietly. My recent RTI intervention and research of proceedings in Parliament has revealed that between 2012 and mid-2018 more than 24,570 Indian Workers died in these Gulf countries. This works out to an average of more than 10 deaths per day. For every US$ 1 Billion they remitted to India during the same period there were at least 117 deaths of Indian Workers in Gulf ...

N-power plant at Mithi Virdi: CRZ nod is arbitrary, without jurisdiction

By Krishnakant* A case-appeal has been filed against the order of the Ministry of Environment, Forest and Climate Change (MoEF&CC) and others granting CRZ clearance for establishment of intake and outfall facility for proposed 6000 MWe Nuclear Power Plant at Mithi Virdi, District Bhavnagar, Gujarat by Nuclear Power Corporation of India Limited (NPCIL) vide order in F 11-23 /2014-IA- III dated March 3, 2015. The case-appeal in the National Green Tribunal at Western Bench at Pune is filed by Shaktisinh Gohil, Sarpanch of Jasapara; Hajabhai Dihora of Mithi Virdi; Jagrutiben Gohil of Jasapara; Krishnakant and Rohit Prajapati activist of the Paryavaran Suraksha Samiti. The National Green Tribunal (NGT) has issued a notice to the MoEF&CC, Gujarat Pollution Control Board, Gujarat Coastal Zone Management Authority, Atomic Energy Regulatory Board and Nuclear Power Corporation of India Limited (NPCIL) and case is kept for hearing on August 20, 2015. Appeal No. 23 of 2015 (WZ) is filed, a...

Gujarat agate worker, who fought against bondage, died of silicosis, won compensation

Raju Parmar By Jagdish Patel* This is about an agate worker of Khambhat in Central Gujarat. Born in a Vankar family, Raju Parmar first visited our weekly OPD clinic in Shakarpur on March 4, 2009. Aged 45 then, he was assigned OPD No 199/03/2009. He was referred to the Cardiac Care Centre, Khambhat, to get chest X-ray free of charge. Accordingly, he got it done and submitted his report. At that time he was working in an agate crushing unit of one Kishan Bhil.

Budget for 2018-19: Ahmedabad authorities "regularly" under-spend allocation

By Mahender Jethmalani* The Ahmedabad Municipal Corporation’s (AMC's) General Body (Municipal Board) recently passed the AMC’s annual budget estimates of Rs 6,990 crore for 2018-19. AMC’s revenue expenditure for the next financial year is Rs 3,500 crore and development budget (capital budget) is Rs 3,490 crore.

Licy Bharucha’s pilgrimage into the lives of India’s freedom fighters

By Moin Qazi* Book Review: “Oral History of Indian Freedom Movement”, by Dr Licy Bharucha; Pp240; Rs 300; Published by National Museum of Indian Freedom Movement The Congress has won political freedom, but it has yet to win economic freedom, social and moral freedom. These freedoms are harder than the political, if only because they are constructive, less exciting and not spectacular. — Mahatma Gandhi The opening quote of the book by Mahatma Gandhi sums up the true objective of India’s freedom struggle. It also in essence speaks for the multitudes of brave and courageous individuals who aspired to get themselves jailed for the cause of the country’s freedom. A jail term was a strong testimony and credential of patriotism for them. The book has been written by Dr Licy Bharucha, an academically trained political scientist and a scholar of peace studies and Gandhian studies, who was closely associated throughout her life with those who made the struggle for India’s independence the primar...

Warning bells for India: Tribal exploitation by powerful corporate interests may turn into international issue

By Ashok Shrimali* Warning bells are ringing for India. Even as news drops in from Odisha that Adivasi villages, one after another, are rejecting the top UK-based MNC Vedanta's plea for mining, a recent move by two senior scholars Felix Padel and Samarendra Das suggests the way tribals are being exploited in India by powerful international and national business interests may become an international issue. In fact, one has only to count days when things may be taken up at the United Nations level, with India being pushed to the corner. Padel, it may be recalled, is a major British authority on indigenous peoples across the world, with several scholarly books to his credit. 

Covid response? How, gripped by fear and groupthink, scientists 'failed' children

By Bhaskaran Raman*  “Today’s children are tomorrow’s future”, “Nurture children’s dreams”, “A child’s smile is sunlight”. These are some cliches, rendered rather uninspiring through repetition and obviousness. However, for nearly 2½ years, society forgot these cliches, children suffered as science failed and groupthink prevailed. Worse, all of this has been swept under the rug.