Articles, Bail

§43D (5) of the Unlawful Activities Prevention Act, 1967 and the Reconstruction of Bail Law

-By Aanish Aggarwal*

Introduction

The Unlawful Activities Prevention Act (‘UAPA’), 1967 was established by the Indian Government for prevention of certain unlawful activities of individuals and organisations, and to also deal with matters related to terrorism. The UAPA became India’s primary act dealing with terrorism and other related activities following the repeal of the Prevention of Terrorism Act (‘POTA’) in 2004. The Act has recently been flayed by scholars and academicians alike following the denial of bail to a pregnant woman in relation to anti CAA-NRC riots in Delhi. The pregnant woman, Safoora Zargar, was allegedly responsible for blockading the road for the protests and she was charged under the UAPA for her actions.

General Standard of Bail and the UAPA Standard           

Bail refers to the procurement of release of a person from legal custody, by undertaking that one shall appear at the time and place designated and submit oneself to the jurisdiction and judgment of the Court.[1] The legal system puts an emphasis on the fact that punishment should begin only after conviction. Following the landmark judgement of J. V Krishna Iyer in State of Rajasthan v. Balchand, the courts have been instructed to follow the ‘bail, not jail’ standard while hearing bail pleas of an accused. As per the Code of Criminal procedure §437, The regular standard for granting bail necessitates the grant of bail until the Court has reasonable grounds to believe that the accused may abscond, tamper with evidence or influence the case by intimidating witnesses or is guilty.

The legal technicalities faced by a person under UAPA are similar to those under the POTA, as the bail provision has been inspired by POTA §49(7). The accused, in simple words, according to the law, would stay in jail for the duration of the trial.

In Jayanta Kumar Ghosh v. State of Assam, The Guwahati High Court has elaborated on the standard for the grant of bail to an accused under the UAPA. The Court elaborated on the words ‘prima facie true’ in UAPA 43D (5) and declared that one could only grant bail if the alleged accusations seemed inherently unbelievable or highly improbable. The standard thus set would be lower than the regular standard of reasonable ground to believe the guilt to reject the bail of an accused. The approach adopted by the Courts when deciding on matters related to bail under the UAPA has been explained in Abdul Sathar v. Superintendent of Police, where the Kerala High Court said that the Rights of an individual are of less importance when pitted against Rights of citizens at large. Thus, the accused cannot be granted bail since the Court would put Rights of a collective society at risk as compared to an individual.

An interesting thing to note about the bail provision is that Bill drafters had no intentions to bind the Higher Courts with this law. The mover said that the High Courts and Supreme Courts had enough power under the law to not follow this provision and this was binding on the Trial Courts only.[2]

Impact of the UAPA and 43D (5) on the Masses

Latest available reports related to UAPA show that the cases registered under the UAPA have seen a steady increase from 897 in 2015 to 1,182 in 2019. The steady increase in the number of cases registered, along with their alleged arbitrary nature has been detrimental for the society. It would primarily affect their freedom of speech and expression guaranteed by the Constitution under Article 19(1)(a). The UAPA was used against the Bhima-Koregaon accused activists, who were subject to long durations of house arrests by the Supreme Court for their role in the violence that happened in that region. They were at most involved in giving some speeches to the masses. It is yet to establish it as a fact that the speeches were the only reason for the violence. The same is the case related to Safoora Zargar wherein Safoora, a pregnant lady was allegedly involved in creating a blockade on the road and her speech allegedly led to violence, yet it is debatable whether her speech was the only cause of the Delhi Riots. Fortunately, Safoora Zargar has now been released on bail. Other activists, who are against the current Government, like Umar Khalid, have also been arrested under this law for their propaganda. The only established matter in these findings is that perhaps the accused were only exercising their freedom of speech enshrined under Part-III of the Indian Constitution. It is an established fact that fifty-five percent of the English-speakers are reluctant to share their views on social media. This makes it extremely necessary for the Government to carry out changes legislatively to the law framework and provide a better environment to the people. The Government could start with amending various draconian acts in place, primarily the UAPA. The Government could amend its bail provisions to the extent of a regular bail provision so that the people would at least get a fair trial.

Constitutionality of the UAPA Bail Provision

There has been opposition against the Act, particularly the recent amendments that were introduced in 2019. Interestingly, the recent amendments passed by the Government in 2019 are currently under review before the Supreme Court.[3]

It is true that some of the provisions of the Code go against the core values of the Constitution enshrined in Part-III. The provisions stand against two fundamental rights, namely, the Right to Freedom and Right to Personal Liberty. The Human Rights Declaration ensures the liberty and freedom of all and ensures that no person shall be subject to arbitrary arrests and detention. It also ensures that no person shall be subjected to torture or degrading punishment. India, a signatory to the Declaration of Human Rights, directly violates these laws through the UAPA. Amnesty International had also raised their concerns against the POTA, its predecessor, for violating Article 14 of the International Covenant on Civil and Political Rights, to which India is a party. Previously, the Supreme Court has also raised its reservations against powerful laws such as TADA that allowed the police to abuse its powers.[4]

The UAPA is not the only Act that has stringent bail provision. The Prevention of Money Laundering (Amendment) Act (‘PMLA’), 2019, also contained stringent bail provisions. The bail provisions, given in Section 45 of the PMLA were in line with the UAPA where the accused had minimal chances of securing bail. This provision was challenged in the Supreme Court in Nikesh Tarachand Shah v. Union of India, where the Court held the provision to be violative of Article 14 and Article 21 of the Indian Constitution. Given the parallels between the bail provisions of the two laws, it is extremely imperative that the bail provisions of UAPA also be reviewed.

Conclusion

The last National Crime Records Bureau(‘NCRB’) report released in 2016 showed that sixty-seven percent of the cases ended in acquittals under the UAPA. The 2016 NCRB report further reported that the conviction rate stood at fourteen-percent. With the capacity of Indian prisons stretched to one hundred and seventeen percent, it is imperative that we ease some of the burden on these prisons.

It is true that terrorism has changed radically and started affecting the world at large. As per the Law Commission of India, there is a need for a legislative framework that takes the global terrorism into account. India has followed the same principles by implementing the UAPA law in its fight against terrorism. However, mere labelling of an act as plausibly being related to terrorism should not result in denial of bail. Denial of bail rather, should not be used as a manipulative tool by the State towards further achieving its goals.

Section 43(D)(5) has two problems, which effectively cause the denial of bail to an accused person under the act. One being that the public prosecutor must have an opportunity to hear on the application of such a release. This is a legal hurdle that has to be crossed by the accused, unnecessarily. Second being the low threshold set by the words prima facie in the law. Keeping such a low threshold leads to the denial of bail to many accused under the law. It is suggested that the Government either relax these two intricacies and make them more favorable to the accused, or do away with the law and follow the regular bail provision.


[1] BLACK’S LAW DICTIONARY 177 (11th Edn. 2019)

[2] Lok Sabha Debate, Combined discussion on the motion for consideration of the National Investigation Agency Bill, 2008 and the Unlawful Activities (Prevention) Amendment Bill, 2008, 3, Session Number 200

[3] Sajal Awasthi v. Union of India WP(C) 1076/2019 (Pending)

[4] Kartar Singh v. State of Punjab (1954) SCR 145

The author* is a 2nd year student at West Bengal National University of Juridical Sciences, Kolkata.

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