SC says jail, not bail, is the rule under the UAPA: How courts have been granting bail in UAPA cases

Underlining that the oft quoted phrase, ‘bail is rule, jail is the exception’, does not find any place in the stringent anti-terror Unlawful Activities Prevention Act (UAPA), the Supreme Court on February 7 denied bail to Gurwinder Singh, an accused in an alleged “Khalistan module.”

Singh was arrested when he was found hanging cloth banners on which “Khalistan Jindabad” and “Khalistan Referendum 2020” was written. He is now accused of a being part of a larger conspiracy with Sikhs for Justice, a pro-Khalistan group banned by the Indian government.

While the higher bar for granting bail under the UAPA is indeed antithetical to ordinary criminal law, there are some cases in which courts have granted bail. How have courts interpreted Section 43D (5) of the UAPA? Why do courts deny bail in most cases despite some rulings that have raised the bar for the state to argue against bail?

The law

Section 43D (5) reads: “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.”

The law essentially says that while relying only on the police version — the case diary and the police report — the accused must show to the court that it is unreasonable to believe the accusations are prima facie (Latin for “at first sight”) true. In shifting the onus on the accused, the cardinal principle of criminal law that a person is innocent till proven guilty is upended in the alternate framework of the UAPA.

Narrowing the room for bail

In 2019, the Supreme Court in a two-judge bench headed by Justice A M Khanwilkar ruled in Zahoor Ahmed Shah Watali v NIA, that for granting bail under UAPA, courts must not examine the evidence but only accept it at face value. The SC in this case was hearing an appeal against a Delhi HC ruling by a bench headed by Justice S Muralidhar granting bail to a Kashmiri businessman.

“The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise,” the apex court had said.

Once charges are framed in the case, the court in Watali said, effectively an accused “may have to undertake an arduous task to satisfy the court that despite the framing of charge, the materials presented along with the charge­sheet (report under Section 173 of Cr.P.C.), do not make out reasonable grounds for believing that the accusation against him is prima facie true” in order for the court to grant bail.

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Legal scholar Gautam Bhatia illustratively wrote in his blog Indian Constitutional Law and Philosophy, that for the lawyer of an accused in a UAPA case arguing for bail would be “participating in a swimming competition with both arms tied behind their backs: they cannot deploy any part of the arsenal open to the defence team in a regular criminal trial, and they are only permitted to try and point out internal contradictions within the Prosecution’s case, or show how even when you assume the Prosecution’s case to be true, it does not meet the UAPA threshold.”

The Watali judgement “effectively tied a dumbbell to the defence’s legs in addition to its arms being tied behind its back, when it further restricted what materials the Court could consider in a UAPA bail hearing,” he wrote.

Post-Watali ruling

The Watali judgement effectively closed the window, especially for trial courts, to look at the prosecution’s case critically while granting bail. If the prosecution’s case is flimsy, courts cannot question it, raising concerns about the liberty of an individual.

Courts have, however, granted bail in several cases, including in some high-profile cases.

The Delhi High Court in 2021 granted bail to three student activists- Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal in the anti-CAA protests in North East Delhi. The HC applied the Watali precedent but placed the burden of making out a prima facie case on the police instead of the court itself having to make out a case. The court said that specific, individual charges must be made out by the prosecution and not broad speculations and inferences. The Court said it did not locate a “specific factual allegation” and said that it was “of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us (the Court) otherwise.”

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The SC stayed this ruling, though.

Even the Bombay High Court in granting bail to Dalit rights activist Anand Teltumbde, the Bombay HC simply referred to the material before the court and found no specific link to an overt act by Teltumbde. “…prosecution needs to show the nexus and link of Appellant with the present crime or any specific overt act,” the court said. The SC dismissed the state’s appeal against this ruling.

In February 2021, in Union of India vs KA Najeeb, a three-judge Bench of the Supreme Court headed by then CJI N V Ramana allowed bail under UAPA when the accused had undergone incarceration for a significant period. This, however, was carved out while acknowledging that bail under UAPA is an exception but it needs to be balanced with the right to a speedy trial.

The Supreme Court in Vernon Gonsalves v State of Maharashtra, in July 2023 differed with the Watali ruling on how the “prima facie true” test would apply. “In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth,” the bench comprising Justices Aniruddha Bose and Sudhanshu Dhulia said while granting bail to Gonsalves.

However, since both the Watali and the Gonsalves ruling are by benches of the same strength, it will have to be seen how future benches apply the test. If there is substantial disagreement between different two-judge benches, then a larger bench will have to settle the law.

In the Gurwinder Singh case, the two-judge bench headed by Justice M M Sundaresh relied on the Watali ruling entirely without considering the Gonsalves ruling.

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