[This is a guest post by Kartik Kalra.]
Last week, the Supreme Court delivered its judgment in Gurwinder Singh v. State of Punjab – an appeal from the Punjab & Haryana High Court’s rejection of bail for a terror-accused – holding as a principle of law that bail rejection is the norm u/s 43D(5) of the Unlawful Activities (Prevention) Act, 1967, and that a UAPA-accused cannot be released as long as elementary factual allegations of their involvement in the terrorism offence – even if divorced from the offence’s constituents – have been made by the state. The Court’s formal pronouncement of “jail as the rule” was a choice between two competing lines of jurisprudence that have emerged in interpreting the UAPA’s bail-restrictive provisions: one, where courts have been cognizant of the extreme state-citizen imbalance they create, and have accordingly required the state to present particularistic probative material in assessing the existence of a “prima facie case” (the standard to reject bail) against the accused (the “eyes wide open” approach); and the other, where courts uncritically accept the state’s version of the accused’s involvement, a line of cases prompted by the Supreme Court’s judgment in NIA v. Watali (the “eyes wide shut” approach). The instant case epitomizes and entrenches the latter as a principle of law, formally laying down a two-pronged test mandating lengthy pre-trial detention irrespective of the strength of the state’s case – at the bail stage –against the accused. More importantly, however, it constitutes a regression even from the eyes wide shut approach, for its assessment of a prima facie case is divorced from the offence’s constituents and definitions under the UAPA.
In this essay, I discuss the judgment in Gurwinder Singh, in the context of what has been referred to on this blog as the “basics”: a set of principles that a judge cognizant of the UAPA’s state-citizen imbalances must invoke in adjudicating bail. I also discuss the Court’s proud proclamation – “bail is the exception, and jail is the rule”.
Gurwinder Singh – Law-Fact Approximation, Revising the Basics
In this case, the accused was alleged to have committed an offence u/s 18 of the UAPA, which prohibits and penalizes, inter alia, “act[s] preparatory to the commission of a terrorist act”. He was alleged to have received funds from members of Sikhs for Justice, an organization deemed an “unlawful association” u/s 3 of the UAPA by the Central Government, which were to be used in India for fuelling separatism through the procurement of weapons, and for raising demands for a separate Khalistani state (¶3). He had been imprisoned for five years when filing for bail; consequently, he also argued for the applicability of the Supreme Court’s decision in Union of India v. K.A. Najeeb, which held that UAPA-accused persons may be released on bail solely on rights-related considerations arising from delays in trial (¶18).
The bail application was to be decided within the contours of Section 43D(5), which states that the accused would be released on bail only if, based on an assessment of the charge-sheet or case diary, “reasonable grounds for believing that the accusation…is prima facie true” do not exist. This term, as interpreted in Watali, meant that materials indicating the accused’s complicity must be shown by the state, and “must be good and sufficient” to demonstrate a possible commission of the alleged offence (¶23). The Court sticks to this interpretation, reproducing the state’s version of the accused’s involvement, without desiring the production of particularistic probative material, finding the general existence of the state’s case sufficient. In this sense, it does not constitute a regression from where the law, pursuant to Watali and the “eyes wide shut” approach, stood.
Simultaneously, however, it does make a grave omission: while the accused was alleged to have committed the offence of “knowingly facilitating the commission of…an act preparatory to the commission of a terrorist act”, the Court’s analysis of the prima facie case is wholly divorced from the offence’s constituents u/s 18. The “eyes wide open” approach, which prohibits a gap-filling exercise between allegations and evidence, does not account for this eventuality, perhaps assuming that any standard – howsoever deferential – would assess the state’s case in reference to the law the accused is alleged to have violated. This is also because in Watali itself, where the primary allegation against the accused was a membership-based offence, evidence collected was directed to prove such membership, corresponding to the legal composition of the offence as it is defined under the UAPA.
If, like in the instant case, the offence concerns the facilitation of an act preparatory to the commission of a terrorist act, a prima facie case that aligns with the offence’s constituents must necessarily show three things – first, what terrorist act, i.e., for what terrorist act was the preparatory act facilitated; second, the accused’s knowledge of the alignment of their actions with the facilitation of the terrorist acts; and third, a demonstration of how the terrorist act was furthered – howsoever marginally – by the accused’s participation. Even pursuant to Watali, therefore, “good and sufficient” materials showing these three elements – which are the offence’s constituents as it is defined in the UAPA – must be shown.
In the Court’s analysis, however, there exists no appreciable link between the facts alleged and reproduced, and the offence’s constituents. It reproduces the state’s case, which contains two primary allegations, neither satisfying the offence’s constituents – first, constant communication between the accused and members of the unlawful association; and second, a disclosure statement admitting to travel – with members of the association – for the purpose of procuring weapons illegally (¶29-30). While this may have been sufficient for showing a prima facie case for a membership-based offence, such as those u/ss 10 or 20 that prohibit membership of banned groups, the offence u/s 18 contains specific constitutive elements. The Court’s omission in assessing the offence in reference to the law, therefore, necessitates revising the composition of the “eyes wide open” approach, including within it the requirement to assess the offence’s constituents in deciding the existence of a prima facie case:
Principle 1: The definitional clauses of the UAPA must be given a strict and narrow construction.
Principle 2: The allegations in the chargesheet must be individualised, factual, and particularistic. The gap between what an individual is accused of, and the actual events, cannot be filled by inferences or speculation.
Principle 3: Bail cannot be denied when the Prosecution’s evidence is of “low quality or low probative value”, and a Court must engage in an analysis of the evidence to determine that.
Principle 4: In assessing the existence of a prima facie case, the state’s case – and the Court’s assessment – must correspond to the offence’s constituents, and a vague allegation of involvement, which does not correspond to the offence, cannot defeat bail.
Apart from regressing in this dimension, the Court also harshly interprets of Section 43D(5) in rejecting bail, noting the legislative anxiety underlying the words “shall not…release on bail.” I discuss this next.
Jail is the Rule! – On Legislative Intent, KA Najeeb
The most impactful component of the judgment, which is likely to become an oft-repeated phrase in UAPA bail hearings, is the Court’s proud proclamation that in matters involving UAPA offences, jail is the rule, and bail is the exception. The Court arrives at this conclusion through an assessment of the words “shall not be…released on bail” u/s 43D(5), which indicate legislative intent to make bail a rarity (¶18). The Court seeks to align itself with this legislative intent, seeking to concretize bail rejections into law.
While the constitutionality of Section 43D(5) has not yet been decided, performing a harsh reading of the section that codifies into law prolonged pre-trial incarceration – based on probative material of little value, which may even be divorced from the law the accused is alleged to have violated – is an unfortunate move. The derivation of the bail-rejection principle solely from the text of Section 43D(5) is a misattribution – the word “shall”, at least in Indian constitutional jurisprudence, has been diluted to nullity (especially in administrative law cases), with courts consistently departing from legislative mandates that appear seemingly mandatory. Awaiting the constitutional challenge, therefore, a fairer, appropriate reading must be offered to s 43D(5), enabling courts to fairly – without pre-existing tilts towards rejection – adjudicate bail under the UAPA.
Apart from reading s 43D(5) strictly, the Court also distinguishes this case from Najeeb, which enabled UAPA pre-trial detainees to obtain bail if have undergone imprisonment for a substantial period, based on fundamental rights considerations. Contrary to Najeeb, it holds that “mere delay in trial pertaining to grave offences… cannot be used as a ground to grant bail” (¶32). In Najeeb, it notes, the accused was imprisoned for a period exceeding five years, while in the instant case, they were imprisoned only for five (¶32). It also notes that while the trial in Najeeb was likely to take a long duration, many witnesses had been examined in the instant case, with the trial expected to complete shortly. The last justification for departing from Najeeb, however, concerns the existence of a prima facie case itself (¶32-3). This is problematic, for the enquiry in Najeeb – which asks whether the detainee’s constitutional rights have been violated owing to prolonged pre-trial detention – is distinct from the question of the existence of a prima facie case u/s 43D(5):
18. It is thus clear…that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution…the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
It is clear, therefore, that the question of rights-violation is distinct from the existence of a prima facie case, and one can – pursuant to Najeeb – be released on bail despite its existence, given its immateriality to one’s release. The Court’s invocation of a prima facie case to reject bail on rights-related grounds, therefore, is erroneous. It would also be worthwhile to note that Najeeb itself invoked prior UAPA-related case-law, where accused persons underwent periods of imprisonment comparable to the instant case, to develop its test of rights-violations.
Conclusion
The judgment in Gurwinder Singh, therefore, is both symptomatic of the prevailing “eyes wide shut” approach, whereby courts seek to authorize detention based on general allegations of involvement in a terror-related offense, while also regressing from how this deferential determination of a prima facie case hitherto occurred. The Court’s assessment of the case against the accused in a manner divorced from the offence’s constituents necessitates a revision to the set of basic principles a judge adjudicating bail must consider. The proclamation of “jail as the rule” is a further, unfortunate move, with the Court giving the state new vocabulary to invoke for seeking prolonged pre-trial detention.
Constitutional Law and Philosophy 