Critical appraisal of Bail law under §43d(5) of the Unlawful Activities (Prevention) Act, 1967

By Abhinav Gupta

Introduction

Bail can be defined as a security such as personal bond or surety, required by the courts for the release of a person accused of committing a crime from custody. The accused, however, must appear before the court for future hearings.Bail is provided as a matter of right and is only rejected under exceptional circumstances.

Unlike foreign jurisdictions, India lacks a uniform legislation on bail, and the provisions of bail are spread across various special laws. §43D(5) of the Unlawful Activities (Prevention) Act, 1967, (‘the Act’) is focused on the procedure for granting bail to a person who is accused of terrorism activities under Chapter IV and VI of the Act. §43D(5) of the Act (‘§43D(5)’) has been a subject matter of scrutiny for infringing upon the constitutional rights of the citizens and making it exceedingly difficult to secure bail. The arbitrariness of the courts in interpreting the provision is exemplified by the fact that over sixty-seven percent of the accused charged under this provision, many of whom are detainees, are later acquitted. This adds to the menace of pre-trial detention where the accused is detained for several years only to be found not guilty in the end.

This paper critically analyses the aforementioned provision while taking into consideration the recent developments. It is argued that the provision fails to effectively balance the interests of the accused against the interests of the State at the stage of bail application. Accordingly, the paper recommends for the reconstruction of the provision due to its failure to reconcile with the rationale for denying bail. The paper advocates that a standard akin to the Kenyan model should be adopted in order to comply with these rationales and thereby provide an effective balance to the interests of both the parties.

§43D(5) OF THE ACT AND ITS APPLICATION BY THE COURTS

As per §43D(5), bail cannot be granted to a person accused of being involved in terrorist activities if the Public Prosecutor has not been given a reasonable opportunity of being heard. The proviso to the provision provides for a condition when the accused would not be released on bail. It mandates that if the court is convinced, after receiving evidence from the case diary or report, that the accusations against the person are prima facie true, bail would not be granted to the accused. Since the latter provision has been frequently misused by the State and misinterpreted and misapplied by the courts, the scope of the paper is limited to the same.

The locus classicus on this provision is the case of National Investigating Agency v. Zahoor Ahmad Shah Watali. In this case, the accused was charged with conspiracy to commit, fund and encourage terrorism activities in India. The Supreme Court (‘the SC’) opined that in order to determine whether the charges are prima facie true, an elaborate examination of the evidence produced before the court does not need to be conducted. The SC held that the financial records of the accused, which indicated funding from questionable foreign sources were sufficient to hold that the accusations against the accused were prima facie true.

A recent development under this provision has been observed in the matter of State v.Safoora Zargar where bail was refused to a person, a pregnant woman and a scholar, for delivering an inflammatory speech that allegedly resulted in riots in Delhi. Charges based on Whatsapp messages and disclosure statements were framed under §13 of the Act for committing ‘unlawful activities’ as defined under §2(o) of the Act. It was alleged that the accused had been part of the conspiracy to block a road and caused disruption at an unprecedented level. Based on the evidence, the Sessions Court held that the charges were prima facie true and therefore, §43D(5) would be attracted.

However, the application of §43D(5) in the present case was incorrect. §43D(5) expressly states that it is only applicable to charges which are framed under Chapter IV and VI of the Act. The accused in the above mentioned case was charged for committing unlawful activities, which falls under Chapter III of the Act. Thus, there was a blatant misapplication of the provision by the Sessions Court resulting in the arbitrary detention of the suspect. The accused was later granted a conditional bail by the Delhi High Court on humanitarian grounds. The court, therefore, failed to acknowledge the misapplications of the provision by the Sessions Court.

THE SHIFT IN THE BALANCING OF INTERESTS

Academic literature on fundamental criticism of this provision is majorly focused on its denial of presumption of innocence to the accused and the inclination of the courts to heavily rely upon the version presented by the prosecution while deciding bail. The emphasis of the author is on the redundancy of this provision.

While adjudicating a bail application, the courts are required to balance the interests of the accused against the interests of the State and society at large. The primary interest of the accused is his right to liberty and freedom.  Conversely, the interest of the State can include prohibiting the individual from absconding, committing offences during bail, tampering with evidence or threatening witnesses.

However, §43D(5) provides an arbitrary balance of these interests. Rather than addressing the interests of the State during bail application, this provision focuses on assessing the prima facie guilt of the accused. If this prima facie guilt is established, it creates an irrebuttable presumption in favour of the State that the accused is a risk to the society or is bound to jeopardise the trial. Therefore, it assumes the validity of these interests instead of requiring the prosecution to actively prove them. In other words, it authorises detention of people who might not be a risk to the society, or capable of tampering with the evidence or be at a risk of flight. This assessment of the probability of the guilt of the accused even if at a prima facie level, is the interest of the State at the stage of trial and not at the stage of determination of bail application. Therefore, the said provision is arbitrary.

It may be argued that the State has a compelling interest to prevent the risk of releasing potential terrorists and therefore, such a harsh provision is justified. Further, it may also be argued that the nature of the charges is gruesome enough to assume such risks. However, such a broad categorisation is inherently unjust. Such assumptions of risks are overstated and cannot be justified to detain a person charged under the Act. Further, the compelling interest of the State in cases of terrorism can be achieved through a more judicious mechanism by implementing the recommendations made in the next part.

RECOMMENDATION – ADOPTION OF KENYAN MODEL

It is recommended that §43D(5) should be amended. Currently, the part that reads “the accusation against such person is prima facie true” should be removed. Instead, a standard similar to the Kenyan model should be adopted as it is premised upon the prosecution proving its interests mentioned in Part III rather than merely determining the probability of guilt at the stage of bail application.

Under Kenyan law, the prosecution has to prove compelling reasons to deny bail to an accused including those charged for heinous crimes such as terrorism.The reasons are deemed compelling if there are reasonable grounds for believing that the accused will flee, or interfere with witnesses, evidence or the investigation, or commit an offence while being on bail. Bail may also be rejected if it is necessary to keep the accused in custody for his own security, or where the accused is a minor for his own welfare, or where a person who was granted a conditional bail has breached such condition. Kenyan law does not provide detention based only on the probability of the accused having committed the crime.

Further, if the court detains an accused on the ground that there is a probability that he will commit an offence while on bail, the interpretations of the phrase ‘offence’ should be limited to the offences committed under Chapter IV and VI of the Act.This is important since a wide interpretation of the phrase ‘any offence’ can be misused by the prosecution by making allegations against the accused that have no relevance to the case.

Thus, this model will require the prosecution to prove their actual interests and not the guilt of the accused at the stage of bail application. The compelling interest of the State mentioned in Part III will also be addressed through this amendment since the courts will have the power to detain people who shall prove to be an actual threat to society. The standard will provide a fine balance between the interests of the accused and the State by restraining the courts from adjudicating the guilt of the accused before the start of trial. Therefore, it will delegitimise the detention of suspects who are not an actual threat to society. It is pertinent to mention that the considerations under the recommended provision are not novel to the Indian jurisprudence. The Indian courts, in interpreting §437(1)(i) of the Code of Criminal Procedure, 1973, have acknowledged such considerations while granting bail.

[The author is a 2nd Year student at West Bengal National University of Juridical Sciences, Kolkata.]