India has for many years had a major problem when it comes to pre-trial incarceration. 70 percent of prisoners in India are undertrials, according to the latest available NCRB data (from 2019) – that's 3,28,000 people in jail without ever being convicted.
Adding to this existing problem is a newer trend: using the draconian Unlawful Activities (Prevention) Act – the UAPA – to arrest not just those the law is meant to target (ie members of recognised terrorist organisations), but students, activists, protesters and journalists.
According to data cited by the Ministry of Home Affairs, the number of arrests made under the UAPA steadily increased from 2015 to 2019, from 1,128 to 1,948. Only 2 percent of those arrested in this time have been convicted.
Since 2019, in Jammu and Kashmir alone, 2,300 people have been booked under the UAPA, 1,100 of whom are still in custody.
The use of the UAPA in arrests serves two major purposes for investigating agencies. First, it doubles the amount of time they are granted by statute to file a charge sheet to 180 days. Second, if terror offences are invoked against an accused, Section 43D(5) of the UAPA kicks in.
This provision prevents the courts from granting bail to an accused if, based on the case diary and other materials provided by the police, there are reasonable grounds to believe that the case against the accused is prima facie true.
The Supreme Court in its 2019 Watali judgment read this provision in a very restricted manner, saying that the courts cannot scrutinise the evidence and material the police have against the accused (even if there are serious problems with this), and must instead consider only the allegations by the police and how serious they are.
The combination of this restrictive reading and the already restrictive nature of Section 43D(5) has been that the courts, especially lower courts, overwhelmingly deny bail to UAPA accused despite the implausibility of the accusations against them, and even deny medical bail to those with serious illnesses.
The Bhima Koregaon accused are the best example of this, with bail denied to them despite incriminating evidence appearing to be planted on their computers (Rona Wilson), the material against them being dubious (Sudha Bhardwaj) and having severe illnesses (83-year-old Father Stan Swamy, who eventually died in jail).
In all this, it is sometimes easy to forget that Section 43D(5) is not a complete prohibition against bail on the merits of a case, as the NIA and police have tried to argue, and that it requires the courts to actually apply their mind and see if the allegations of terror offences against the accused actually make any sense.
It is also not a bar to medical bail or bail on other grounds relating to violations of fundamental rights.
Here are several examples – in just 2021 – of how the courts have conducted their due diligence and ensured the UAPA's strict bail provision is not misused in cases where UAPA charges are not merited (even where other criminal charges might be) or used to deny bail when the circumstances merit it.
1. GAUHATI HIGH COURT: FACEBOOK POSTS & CIVIL DISTURBANCE ARE NOT TERROR OFFENCES
The most recent example of this comes from the Gauhati High Court, which on 6 October 2021 granted bail to a man accused of 'giving support to a terrorist organisation' (Section 39, UAPA) – because he said in a Facebook post that the Taliban in Afghanistan are not terrorists.
The court said that it was doubtful that a mere Facebook post, "in the absence of other incriminating material", could amount to a cognizable offence at all. The high court had also granted bail to another man two weeks earlier; he had been booked under the same UAPA provision for allegedly glorifying the Tehreek-e-Taliban (the Pakistani arm of the Taliban).
On 9 April 2021, the Gauhati High Court also upheld the bail granted to Assam activist-politician Akhil Gogoi by a special NIA court in October 2020. Gogoi had been booked under the UAPA for his role in anti-CAA protests in Assam in December 2019.
The high court noted that for a case of a terror offence to be made out under the UAPA, it had to be shown that the "dominant intention of the wrongdoer" was to commit a terrorist act. It clarified that provocative speeches, acts of violence, and civil disturbances don't automatically rise to that threshold.
"What, therefore, follows is that an unlawful act of any other nature, including acts of arson and violence aimed at creating civil disturbance and law and order problems, which may be punishable under the ordinary law , would not come within the purview of section 15(1) of the [UAPA] unless committed with the requisite intention."Gauhati High Court in Akhil Gogoi judgment dated 9 April 2021
As the NIA had failed to come up with any material which indicated that Gogoi's actions had that additional intent, the high court saw no reason to interfere with the grant of bail.
2. BOMBAY HIGH COURT: MERE DISCUSSIONS AREN'T TERRORISM
In a significant judgment delivered on 13 August 2021, the Bombay High Court held that "mere discussions or, for that matter, advocacy of a particular cause" would not fall within the dragnet of a terror offence, and could not, therefore, be grounds to deny a person bail under the UAPA.
The bench was dealing with an appeal by one Iqbal Ahmed Kabir Ahmed against an NIA special court's rejection of his bail application. Iqbal had been accused by the NIA of being in a conspiracy with the banned terror outfit ISIS (Islamic State in Iraq and Syria), and was arrested back in 2016.
The allegations of conspiracy were based on statements by protected witnesses that Iqbal and the other accused would assemble at Mumtaz Nagar in Parbhani and "discuss various issues including atrocities on Muslims in the country and world, Hindu organizations, beef ban, incidents at Dadri, Muzaffarpur and Gujrat riots. (sic)"
The high court referred to the Supreme Court's landmark Shreya Singhal judgment in 2015, where it had explained when restrictions on the fundamental right to freedom of speech and expression can be imposed:
"Mere discussion and even advocacy of a particular cause, however unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in."
The judges were therefore not convinced that the material the NIA had against Iqbal was, on the face of it, of sufficient quality to "sustain a reasonable belief that the accusation against the appellant is true." Therefore the bar against granting bail under Section 43D(5) could not be said to directly apply.
3. PUNJAB & HARYANA HIGH COURT: NO MATERIAL, NO BAR AGAINST BAIL
In an order on 13 July, the Punjab and Haryana High Court also showed that just because evidence can't be scrutinised at the stage of bail in a UAPA case, this did not mean the courts should just accept whatever the police say at face value.
The case against one Gurpal Singh was that he was part of a gang which had carried out several robberies and even murders in Punjab. A police informant had claimed that the gang had committed 'anti-national activities' and received instructions from bosses from outside India.
The court eventually found that while the allegations were serious, there was nothing in them which indicated any terror offences under the UAPA.
"Beyond merely asserting that the petitioner and the other accused are involved in terrorist activities, Ld. Counsel appearing for the State have not been able to point out any material collected during investigation to connect the petitioner with the accusations sought to be made and to indicate that the allegations against the petitioner regarding the offences under the Unlawful Activities (Prevention) Act, are prima facie true."Punjab & Haryana High Court order in Gurpal Singh case on 13 July 2021
Even here, the state police tried to argue that because UAPA terror offences had been invoked, the accused couldn't get bail. However, the high court ensured that it actually examined the allegations against the accused and saw if they actually fit the bill – which courts are entitled to do despite Section 43D(5) and the Watali judgment.
4. DELHI HIGH COURT: PROTESTS ARE NOT TERRORISM, NEED SPECIFIC ALLEGATIONS
The Delhi High Court's orders in June 2021 granting bail to three of those accused of conspiring to cause the Delhi Riots in February 2020 are perhaps the most high-profile examples of how a court can grant bail in a UAPA case.
Anti-CAA activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal (the latter two belonging to the Pinjra Tod organisation) were granted bail in separate orders which had a number of common threads.
The bench of Justices Siddharth Mridul and Anup Bhambhani specifically noted that citizens have a right to protest, and that even if protests cross a line from being peaceful, this doesn't automatically make them rise to the threshold of terror offences.
The judges expressly spent time going into the purpose of the UAPA and the inclusion of terror offences within it, to examine when criminal acts could be considered terrorism offences. They noted that the law was meant to deal with serious threats to the existence of the nation, and frivolous usage of the law undermined its purpose.
The court had some strong words for the police and the authorities, including:
"We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril."
"We are afraid, that in our opinion, shorn of the superfluous verbiage, hyperbole and the stretched inferences drawn from them by the prosecuting agency, the factual allegations made against the appellant do not prima facie disclose the commission of any offence under sections 15, 17 and/or 18 of the UAPA."
While the Supreme Court has held that these three orders cannot be considered as precedents till it decides the appeals by the government against them, the reasoning and logic of the Delhi High Court cannot be ignored. The judgments of the other high courts mentioned above also apply similar reasoning, even though they do not cite these orders as precedent.
It should be noted that these weren't the first time the Delhi High Court had granted bail on merits to a UAPA accused.
In October 2020, it granted bail to Faizan, who had been roped into the UAPA conspiracy in FIR 59, even though the only allegation against him was that he had sold a SIM card to Asif Iqbal Tanha, after which it had been used to coordinate protests.
As the police had failed to make any allegations about how Faizan knew what the SIM was being purchased for, not to mention there was no evidence against him at all, the court found there was nothing here that disclosed an offence under the UAPA by Faizan, and so the 'onerous conditions/embargo' for bail under Section 43D(5) did not apply.
5. SUPREME COURT: IF FUNDAMENTAL RIGHTS BEING VIOLATED, NO BAR ON BAIL
Despite the worrisome implications of its order in the Watali case, the Supreme Court has also played a major role in allowing bail to be granted in UAPA cases if the circumstances are right.
While this case was not about granting bail on merits in UAPA cases, the apex court acknowledged that the condition on granting bail in Section 43D(5) was not absolute, and that it was actually less stringent than the bail restriction in Section 37 of the NDPS Act, for instance, which doesn't allow a court to grant bail for serious drug offences unless the court believes the accused is "not guilty".
In particular, the Supreme Court held that Section 43D(5) “does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution.”
Part III of the Constitution deals with fundamental rights. Essentially what the court has said is that the high courts and the Supreme Court can see if there are some causes for concern with the arrest of someone under the UAPA, like humanitarian grounds or some other unfairness, and grant them bail as a result.
In the KA Najeeb case, the issue was the long delay in the trial, which had seen the accused spend over five years in jail. There were also some 276 witnesses to examine, and charges had only been framed in November 2020.
The court found that this amounted to the violation of an accused's right to a speedy trial, which is part of the fundamental right to life and personal liberty in Article 21 of the Constitution.
This judgment is particularly important because it can be used to argue against police/NIA claims that medical bail can't be granted to UAPA accused – as the Bombay High Court did when granting medical bail to Bhima Koregaon accused Varavara Rao.