Aroon Menon

Background

Recently, the National Crime Records Bureau (NCRB) reported that in 2020 alone there were 1321 arrests (over three arrests every day) made under the Unlawful Activities (Prevention) Act, 1967 (Act). Though originally meant for safeguarding the Union of India against secessionist activities, the objective of the Act was repurposed in 2004 to include safeguarding against terrorist activities. However, it is only in the wake of the Mumbai terror acts of 2008 that the Act took much of the form in which it exists today. The stated purpose of the 2008 amendments was to give effect to the various resolutions of the United Nations Security Council and “to make special provisions for the prevention of, and for coping with, terrorist activities”. Section 43D(5) was incorporated as part of the amendments, essentially to make the release of those accused of committing terrorist activities a very difficult task to accomplish.

In the recent past, higher courts have increasingly had the opportunity to interpret and consider the standards woven into Section 43D(5), either by letter or by judicial interpretation of analogous provisions. This has led to the emergence of three landmark decisions, discussed below, which materially define the manner in which Section 43D(5) is enforced in India.

Deconstructing Section 43D(5)

Provisions akin to Section 43D(5) have previously found place in other special legislations governing organized crime, narcotics, money laundering, etc. Each departed from the provisions governing bail contained in the Code of Criminal Procedure, 1973 (CrPC).

Section 43D(5) stipulates a person accused of offences punishable under Chapters IV and VI of the Act, if in custody shall not be released on bail if there are reasonable grounds for “believing that the accusation against such person is prima facie true”. The court is required to arrive at this finding based solely on a perusal of the case diary or the investigation report (chargesheet) made under the CrPC. Introduced to the Act in 2004, Chapter IV defines terrorist act and makes punishable various terrorist activities, including raising funds for, and conspiracy to commit, terrorist acts. Chapter VI pertains to organized terror and empowers the Central Government to notify organizations as terrorist organizations. Further, it makes the membership and support of such terrorist organizations punishable. 

The standard embedded in Section 43D(5) is conspicuously similar to the standard contained in Section 228 of the CrPC, in substance even if not in form. Following the submission of the chargesheet, a trial only commences after charges are framed by the court. Section 228 provides that the court shall frame charges if it is of opinion that there is “ground for presuming” that the accused has committed an offence. Interpreting this provision, the Supreme Court of India (Supreme Court) has held that the materials presented before the court must suggest that the alleged commission of the offence by the accused is a probable consequence. Thus, at the stage of framing of charge a prima facie standard has to be employed. Similarly, while considering an application under Section 43D(5) it is crucial that the allegations prima facie disclose the ingredients of such prohibited offences. In the absence of such ingredients, Section 43D(5) would not apply to a given case.

In this regard too, judicial dicta relating to Section 228 can aid in interpreting Section 43D(5). The Supreme Court in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Ors. held:

“[I]t seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence.” [emphasis added]

Similarly, the court cannot arrive at a prima facie finding under Section 43D(5) if the acts as alleged (taken even at its gravest), as disclosed in the case diary or chargesheet, are missing the essential ingredients. Thus, while Section 228 relates to framing of charges, and Section 43D(5) to granting bail under the Act, the standard contained therein remains the same.

It is in this statutory context, that three landmark judgments have emerged.

Watali – making a bad situation worse
In National Investigation Agency v. Zahoor Ahmad Shah Watali, the Supreme Court authoritatively interpreted Section 43D(5) for the first time and has since become the touchstone upon which applications for bail under the Act are decided.

The matter pertained to a terror funding case being investigated by the National Investigation Agency (NIA) wherein the accused lost before the Special Court and the High Court, in appeal, granted bail to the accused.

This decision of the High Court was impugned in Watali, where the order granting bail was set aside. The decision of the Supreme Court is significant because it crystalizes the threshold to be met and determines the scope of assessment to be undertaken by the court in order to pass an order under Section 43D(5). At the same time, certain findings raise critical issues about the interpretation of Section 43(D)(5).

After generally restating the factors to be considered for bail, the Court found that for Section 43D(5) the material must disclose the involvement of the accused in the commission of the offence and which must be accepted until disproved by other evidence. While comparing Section 43D(5) to other special enactments, the Court dubiously found that:

“[T]he degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments.”

Though the Court did not elaborate on the meaning of the term ‘lighter’, it may be inferred that the Court is suggesting that it is easier to believe that allegations are ‘prima facie true’ rather than meeting the standard under other special enactments. On a comparative reading of Section 43D(5) and similar provisions in other special enactments, it is apparent that the language used in one is simply the inverted form of the other. Whereas Section 43D(5) stipulates that bail shall not be granted if there are reasonable grounds for believing the accusations are prima facie true, other special enactments stipulate that bail shallbe granted where there are reasonable grounds for believing the accused is not guilty of the offences alleged. The distinction sought to be made in Watali is fallacious only because the phrase ‘not guilty’ in such other special enactments and the term ‘prima facie true’ are to be measured against the common yardstick of ‘reasonable grounds’. The court at the stage of bail does not have to come to a conclusion as to the guilt of the accused, akin to a post-trial verdict. In that sense, the standards are the same, with the only difference being the language in which it is couched. This is the first problematic finding in Watali.

A second, more concerning, issue is one of inchoate application of judicial precedent. After extensively quoting from Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, the Court concluded that in a proceeding under Section 43D(5) the court’s exercise in reasoning cannot amount to an evaluation of the merits or demerits of the evidence in a case. However, it has so concluded by ignoring the complete text of Ranjitsing whichholds that:

“The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a conviction”. [emphasis added]

Despite reproducing this passage, the Court goes on to hold that at the stage of considering an application for bail under Section 43D(5) the court is “merely expected to record a finding on the basis of broad probabilities” completely ignoring that Section 43D(5) (much like Section 21(4) MCOCA) requires the court to probe into the matter more deeply so as to enable it to arrive at a justifiable conclusion. In the facts of Watali, deprecating the High Court’s decision, the Court held that it had ventured into the area of examining the merits and demerits of the evidence. Pertinently, Section 43D(5) does not contemplate providing the accused with an opportunity to present any materials at this stage. This is important when it is considered that the investigating authorities typically do not include exculpatory materials in its chargesheet made under the CrPC.

Thus, Section 43D(5) and its interpretation in Watali suggest that the court expected to limit its assessment to simply taking at face value the story of the prosecution as true. Further, the accused is both, disabled from presenting materials which may be exculpatory in nature, but also from accessing material being used against him to justify his continued incarceration.

Najeeb – a missed opportunity

The decision of the Supreme Court in Union of India v. K.A. Najeeb marked a turning point in the enforcement of Section 43D(5). The accused in the matter was arrested in relation to a wider conspiracy involving the use of weapons and explosive substances. After approaching the Special Court several times unsuccessfully, the accused succeeded before the High Court. By the order impugned in Najeeb, the High Court released the accused on the ground that the trial in the case was yet to begin though the accused had already been in custody for four years. Further, that keeping the accused in custody for too long when the trial was not likely to commence in the near future would cause serious prejudice and suffering to him. Ultimately, the three-judge bench of the Supreme Court upheld the order of the High Court releasing the accused.

In doing so, the Court made two key findings. Noting that the High Court exercised its jurisdiction based on rights of the accused emanating from Article 21 without addressing the statutory embargo contained in Section 43D(5), and considering that bail had in fact been previously granted on such considerations in the context of other special enactments containing similar bail provisions, the Court records:

“The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.”

Thereafter,after highlighting that guarantees by Part III of the Constitution, the Court held:

“It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution.… Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.” [emphasis added]

The is significant because Najeebacknowledges that it is legally permissible to grant bail after the commencement of the trial, despite the language of Section 43D(5) and its constrictive interpretation laid down in Watali which implied the existence of Section 43D(5) makes the grant of bail after framing of charges impermissible.

Further, by briefly touching upon on the constitutional justification for a provision such as Section 43D(5), the Court called for a more holistic interpretation while applying harsher conditions contained in special enactments such as the Act. The Supreme Court previously also opined that restrictions on the power to grant bail should not be pushed too far. The observations in Najeeb provide the courts with the necessary flexibility required to exercise their discretion without being shackled to the bare text of Section 43D(5) alone. In doing so, Najeeb becomes an invaluable precedent for other undertrial prisoners to rely on.

Despite its positive impact, Najeeb restricted the ability to grant bail for the violation of Part III of the Constitution to the high courts and Supreme Court. This completely ignores the competence of the Special Courts under the Act to also grant bail. Alternatively, Najeeb could have laid down guidelines under its inherent constitutional powers (as it has done before) within which Special Courts could have been empowered to grant bail on similar grounds. In not considering this aspect, Najeeb missed an opportunity to create a more just system in the administration of Section 43D(5). Ironically, though Najeeb notes that access to justice is covered by Part III of the Constitution, it ignores the practical reality of those trapped in the criminal justice system with little or no access to district courts, let alone higher constitutional courts.

Tanha – A poisoned chalice

On 15 June 2021, a Division Bench of the High Court of Delhi through separate orders granted bail to three student activists – Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal – arrested under the Act. While the roles and allegations against each varied in specifics, all three were broadly accused of being conspirators behind the riots perpetrated in the North-East region of Delhi in February 2020. As in the case of Watali, the High Court was hearing appeals filed by the accused against the order rejecting bail passed by the Special Court. The Delhi Police appealed the High Court’s decision where the matter was heard by a vacation bench of the Supreme Court. It was reportedly submitted before the Court that the High Court had recorded virtually an acquittal order and that the trial court had to entertain a discharge application and replace it with the impugned judgment. Heeding these submissions, the Supreme Court ordered that the decision of the High Court not be treated as a precedent to be relied on by any of the parties before any court. To contextualize the order of the Supreme Court, it is important to first understand the significance of the High Court’s judgment and whether the hyperbole in the submissions made on behalf of the Delhi Police was warranted.

Noting the requirements under Section 43D(5), the High Court, in Asif Iqbal Tanha v. State (NCT of Delhi), proceeded to first consider the meaning of ‘terrorism’ or ‘terror’ so as to relate the alleged offences in the case to Sections 15 and 18 of the Act. After meticulously examining case law on the subject, the High Court held that none of the acts alleged to have been committed by the accused fell within the meaning of offences as defined in the Act. The High Court noted Watali and proceeded to observe that:

“The decision of the Hon’ble Supreme Court in Watali (supra) proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea; and as a sequitur, for assessing the prima facie veracity of the accusations, the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material placed with the subject charge-sheet.” [emphasis added]

In recording such a finding, the High Court astutely cautioned against the practice of invoking hyperbolic language to substantive accusations with speculative inferences. Instead of providing material to base its allegations on, the chargesheet relies on language meant to cause panic as a basis to prove prima facie guilt of the accused. The fact that this is a common complaint raised in other cases as well underscores the relevance of this observation. It further reminds the prosecution, and other courts, that the material produced before it must relate specifically to the offences under Chapters IV and VI and to that extent without first understanding the particular contours of the offences alleged, it would be a farcical exercise of judicial discretion to proceed with applications for bail under Section 43D(5).

Despite these constructive findings, it is arguable to suggest that the High Court went beyond the scope of a bail proceeding by providing not only a legal justification for the acts of the accused (the constitutionally guaranteed right to protest), but also to record findings which may be construed as an order of acquittal (in so far as it related to offences under Chapters IV and VI of the Act). These observations may not have strictly been required as nothing further turned on it. The High Court had already satisfied itself on the prima facie case against the accused and therefore did not further require to make such observations. While the factual context in which Tanha was delivered may have warranted these observations, they have the tendency to take away and overshadow important facets of the law which the court seeks to lay down. In ignoring this aspect, crucial judgments of high courts may lose their value as a precedent as a result of, to borrow a phrase from Tanha, “alarming and hyperbolic verbiage” before the Supreme Court.

Conclusion

At a time when there is a perceptible rise in arrests made under the Act, and when jails too suffer from the threat of a once-in-a-century pandemic, judicial intervention is indispensable to prevent protracted and, in many cases, punitive incarceration. On one side we see judgments like Watali which has made it more difficult to secure bail under Section 43D(5) and on the other, like Najeeb and Tanha, which while providing a modicum of relief, end up falling short of delivering justice to those not before it. Regardless of side, these decisions reinforce the unparalleled ability of the court, particularly the higher courts, to influence the enforcement of Section 43D(5). As security agencies continue to indiscriminately invoke provisions of the Act, courts must remember to adopt interpretations jurisprudentially closer to the principle of ‘bail, not jail’. By looking beyond the facts of a given case, the courts are likely to create a more equitable, and accessible, system of justice and ensure opportunities to do complete justice are not missed.

Aroon Menon is an Advocate based in New Delhi.