Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].
[This is a guest post by Bharat Harne.]
The Supreme Court (SC) on 1st February 2020 delivered an important judgment, Union of India v KA Najeeb (K.A. Najeeb), related to granting of bail in Unlawful Activities Prevention Act (UAPA) 1967 cases. The Court held that any constitutional court has the power to grant bail to people accused of offences under UAPA irrespective of Section 43-D (5), so as to enforce the right to speedy trial which is guaranteed under Article 21 of the Constitution. The judgment has been hailed as the step in the right direction, given that the stringent provisions of Section 43-D (5) makes it almost impossible for a person to secure a bail for an offence under UAPA and under-trials languish in jail while the trial drags on for years. In this post I will highlight the importance of the judgment in the context of the operation of UAPA on ground and will try to answer some of the questions which K.A. Najeeb has thrown up.
UAPA – A Tool of Oppression
The UAPA creates an alternate criminal justice system where the Code of Criminal Procedure (CrPC) does not apply and there are little safeguards for the accused. Empirical research has shown that two-thirds of the accused end up getting acquitted. However, the criminal trial drags on for years and most of the accused end up serving significant amount of time in jail before the trial concludes. This is primarily because of Section 43(D)-5 of the UAPA. According to Section 43(D)-5 a person accused of an offence under UAPA cannot be released on bail if, on a perusal of case diary or the report made under s. 173 of CrPC, the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Notice that the standard of prima facie is extremely low. In NIA v Zahoor Ahmad Shah Watali held that the to satisfy the standard of prima facie no elaborate scrutiny or dissection of the material is required. Simply put, the court merely has to rely on the words of the investigating agency and see whether the allegations fit the offences. In view of such stringent bail provisions and lengthy trials there was no way for undertrials to get bail even though they ultimately they might end up getting acquitted. Thus, an accusation under UAPA becomes as good as conviction and a way for the State to punish people without subjecting them to a fair trial.
The lack of any interim relief paved the way to a particularly odious practice i.e., informal plea bargaining. Since undertrials languished in jails for years and years they end up serving a significant portion of the sentence of the crime they are accused of even before the trial has concluded. This leads to the accused reaching an informal arrangement with the prosecutors wherein the former plead guilty, resulting in a conviction that is usually for the period already served as undertrial or a reduced sentence. It is not unlikely that quite a few accused who were actually innocent pleaded guilty just so that they can get out of prison. The fact that a person is forced to plead guilty for a crime that they did not commit is illustrative of how UAPA is doing grave injustice to the accused and violating their right to liberty.
It is in this context that the decision of the SC becomes very important. The court has held that bail can be granted to an undertrial irrespective of Section 43-D (5) of the UAPA if the court finds that right to speedy trial under Article 21 is being violated. In the instant case the accused had spent nearly five years in prison out of maximum 8-10 for which he could potentially get convicted. Moreover, 276 witnesses who were left to be examined when the matter came before the SC. It held Section 43-D (5) is not a bar when right to speedy trial is violated and accordingly granted bail in this case. The decision of the court is welcome, however the decision itself has opened up a few questions which I will now explore.
A Few Concerns
First, it is not exactly clear what is the standard used by the Court to arrive at the finding that right to speedy trial has been violated. The court seemed to have been led by two considerations – a) the period of time spent in jail and b)- the possibility of early conclusion of trial. With respect to the first condition the accused had spent five out of the maximum of 8-10 years for which he could be convicted. However, the court stopped short of giving any principled reasoning which could be used in future cases to decide whether the right to speedy trial has been violated. Currently s. 436A of CrPC (which does not apply to UAPA) states that if an accused has spent half the period of time out of the maximum period of punishment specified for that offence, the accused has to be released on bail. This provision was not a part of the original CrPC and was added in 2005. Although the Statement of Object of Reasons to the CrPC amendment does not talk about s. 436A, the rule of giving bail on spending half the time specified for that offence is prison emerges out of the jurisprudence of SC in cases concerning right to speedy trial. In Hussainara Khatoon v Home Secretary, State of Bihar (which laid the foundation of right to speedy trial)- the court observed how several undertrial prisoners has spent more than one half of the maximum punishment of which they could be convicted. The court directed the government to appoint lawyers for such undertrials and file an application for bail. In Supreme Court Legal Aid Committee v UoI, another case dealing with right to speedy trial, the court issued a number of directions with respect to pending cases. One such direction was to release those undertrials who were accused of an offence under NDPS Act carrying maximum punishment of five years or less and have spent time in jail which is not less than half the punishment provided. It was only after this line of cases that s. 436A was added to the CrPC. It can be safely be assumed that the legislature was inspired by jurisprudence on right to speedy trial. It is therefore submitted that the rule contained in s. 436A of CrPC i.e., half the maximum punishment as undertrial can be a good standard for UAPA cases where the right to speedy trial is being prayed because the source of this rules itself is jurisprudence on right to speedy trial. If not as a fixed rule, it should at least give a presumption that the right to speedy trial has been violated and then the burden should shift on the state to justify continued detention.
Second, the court also took into consideration the time which it would take to conclude the trial. The court was of the opinion that in the present case since 276 witnesses were yet to be examined the trial will take long to finish and the accused ought to be released. It will be noticed that in the present case the court is concerned with a particular stage of criminal justice process, i.e., trial. However, it is well settled that right to speedy trial extends to all stages including investigation, inquiry, trial, appeal, revision and re-trial. In the context of UAPA it is important to pay attention to one particular stage i.e., investigation. This is because the NIA which is India’s anti-terror agency deliberately slows the investigation to keep the accused in prison for as long as possible. This is done by filing chargesheets and supplementary chargesheets with long gaps, which ensures that the trial is kept in suspended animation and the accused is in prison. This is especially done when the agencies know that their case is weak and will not stand a trial. This strategy has been adopted by the agencies in Delhi Riots case and Bhima Koregoan case. In both these cases the accused have been mostly denied bail. Since the right to speedy trial includes the stage of investigation the courts in the future will have to take this reality into account and expand the scope of SC’s decision in K.A. Najeeb. The SC’s jurisprudence on speedy trial and long period of investigation itself does not inspire much hope. In Rahubir Singh v State of Bihar the police of Bihar were accused of delaying the investigation to keep the accused in jail at any cost. The accused were a group of people caught while they were secretly attempting to cross the Indo-Nepal border at the height of Sikh militancy in 1984. It turned out that one of the persons was himself suspended from Indian Police Services for his anti- India activities. The court observed that the investigative agencies were justified in extending the investigation because the case involved ‘suspected conspiracies bristling with all manners of complexities’ and therefore even though there were ‘lulls’ in investigation it cannot be said that right to speedy trial was violated. While these considerations might have been true in that case, it is well known that arguments of ‘national security’, and ‘conspiracies involving complex investigation’ are a slippery slope to giving the executive free hand to trample on the liberties of its citizens. This exceptionalism might well play a role in future cases because the UAPA itself deals only with such suspected conspiracies and threats to national security and the Indian judiciary is notorious for buying into such arguments of ‘national interest’ and ‘national security’ too easily.
Third, India’s bail jurisprudence is notoriously inconsistent and discriminatory. For example, the MP High Court did not even apply the well settled principles of bail law in Munawar Faruqui case and inexplicably relied on Fundamental Duties to deny bail. Similarly, while bail was granted to Arnab Goswami in Article 32 petition because the courts thought the police was misusing its power, journalist Siddique Kaplan is languishing in jail and his Article 32 petition was rejected and when Arnab Goswami case was cited, it was simply remarked that every case is different. If constitutional courts fail to apply even well settled principles of bail law to regular cases, only time will tell how K.A. Najeeb will be applied in the future especially because the judgment does not even lay down any concrete principle on which bail is to be given and therefore remains susceptible to inconsistent and unprincipled application.
K.A. Najeeb has the potential to remedy injustice that is caused by stringent bail condition under s. 43-D(5) of UAPA. However, this potential can be realized only if there is principled application of the judgment. In K.A. Najeeb the court relied on two considerations the period of time in jail as undertrial and the time left for conclusion of trial in order to determine whether right to speedy trial was violated but failed to specify any principled rule to decide future cases. In this post firstly, I have argued how the law can take shape in the future firstly showing how the rule in s. 436A of the CrPC can be a good indicator if not a brighline rule for violation of right to speedy trial; secondly, I have argued that the courts need to take into account the delaying tactics used by investigative agencies to effectively enforce right to speedy trial. In conclusion it is submitted that only if we have some settled principle based on which bail can be given in UAPA cases can we hope to effectively enforce right to speed trial and remedy the injustice caused by UAPA.