In February, a two-judge bench of the Supreme Court had held, while dismissing the bail application of a man booked under the stringent anti-terror law, the Unlawful Activities (Prevention) Act, that “jail is the rule and bail is the exception in UAPA cases”.

This upends the general dictum of criminal law often echoed in courts and their decisions: bail is the rule and jail is the exception for undertrials. Indeed, it is notoriously difficult to secure bail for someone charged with an offence under the UAPA.

However, in recent years, the Supreme Court had delivered a series of progressive judgments that had not only granted bail in UAPA cases but also clarified and liberalised the legal requirements for the grant of bail in such matters.

Legal experts that Scroll spoke with suggested that the court’s February judgment – titled Gurwinder Singh vs State of Punjab – was not correctly decided to the extent that it disregarded the court’s recent liberal judgments on bail under UAPA. According to them, this judgment does not redraw the legal position on bail under UAPA and must not be taken as precedent by the court.

They agreed, though, that the grant of bail in criminal law in general and under UAPA specifically is discretionary to a significant degree, due to which it is hard to set precise rules and there will always be differing decisions from courts based on an individual judge’s discretion.

Background on UAPA and Gurwinder Singh

The UAPA was enacted in 1967 primarily to deal with terrorism.

Section 43D(5), inserted into the act by the Parliament in 2008, imposes a higher bar for granting bail compared to ordinary criminal laws. Under this section, an accused must demonstrate to the court that it is unreasonable to believe the accusations against them are prima facie true. This shifts the burden of proof onto the accused, departing from the presumption of innocence of the accused, a cardinal principle of criminal law.

Petitions challenging the constitutionality of this provision are pending before the Supreme Court.

Singh had been arrested in 2018 for allegedly hanging banners supporting Khalistan – an independent Sikh state. He is also accused of being part of a larger conspiracy to procure weapons with Sikhs for Justice, a banned, pro-Khalistan organisation.

The Supreme Court rejected Singh’s plea for bail on the ground that section 43D(5) prescribes the rejection of bail as a norm on the basis of the allegations in the police chargesheet.

Justices MM Sundresh and Aravind Kumar of the Supreme Court. A bench consisting of the two of them passed the judgment in Gurwinder Singh vs State of Punjab, holding that “jail is the rule and bail is the exception in UAPA cases”. (Photo credit: Supreme Court of India website)

Ignoring precedents

Lawyers that Scroll spoke with said that the Gurwinder Singh judgment erred by relying on a 2019 judgment of the court, National Investigation Agency vs Zahoor Ahmed Shah Watali. This judgment, delivered by a two-judge bench, stated that when considering bail under the UAPA, courts must not examine the evidence against an accused under the UAPA but accept it at face value

This ruling had considerably narrowed the scope for bail for accused persons in UAPA cases.

However, in subsequent judgments – Thwaha Fasal vs Union of India in 2021 and Vernon Gonsalves vs State of Maharashtra, 2023, both delivered by two-judge benches – the Supreme Court differed from the Watali judgment, stating that courts must conduct a surface-level analysis of the probative value of the evidence against an accused while deciding their bail pleas. This was aimed at balancing individual liberty with national security concerns.

Further, in 2021, a three-judge bench of the Supreme Court had, in the case of Union of India vs KA Najeeb, allowed bail to a UAPA accused since he had already undergone a significant period of incarceration. It held that the restrictive grant of bail under the UAPA is to be balanced with the right to a speedy trial.

“The Gurwinder Singh judgment has not considered the dilution of Watali, nor the interpretation of the court in Najeeb and in Vernon,” said Senior Advocate and noted criminal lawyer Rebecca M John. “These were judgments by larger and coordinate benches that it failed to take into account.” The rule of precedent in law dictates that principles established in judgments by larger benches are binding upon smaller benches of that court. Additionally, if a bench differs from an earlier ruling by another bench of the court of coordinate – that is, equal – strength, it must specifically distinguish itself from that ruling.

Lawyer and writer Kaleeswaram Raj, who practices in the Supreme Court and the Kerala High Court, agreed. “Gurwinder Singh is a reincarnation of the Watali judgment with a different vocabulary,” he told Scroll. “It contains an extremely textual and restrictive reading of the provision.”

Both John and Raj expressed confidence that the Gurwinder Singh judgment won’t overrule the relatively liberal jurisprudence of the Supreme Court on bail in UAPA cases of the last few years.

Raj pointed out that in the KA Najeeb judgment, it was held that a statutory provision – that being section 43D(5) of the UAPA – could not restrict a constitutional right. “I don’t think that Gurwinder Singh will erase this possibility”, he said.

John, on the other hand, stressed that both the Watali and Gurwinder cases were outliers from the general jurisprudence due to their unique factual scenarios. “Watali can be distinguished in fact and in law,” she said.

According to her, Gurwinder Singh was a member of banned organisation and faced serious allegations of propensity to violence. “Both the letter and spirit of the UAPA prevent bail in such situations,” she said.

Unless propensity of violence is established, it is the Vernon Gonsalves judgment that must be considered precedent, she said. “Vernon was not even referred to by the court in Gurwinder Singh,” she lamented.

Speaking in different voices

Legal experts tell us that there are multiple reasons why courts might or might not grant bail in UAPA cases, ranging from the most obvious one – the distinct fact situation of each case – to the scope for interpreting section 43D(5) in multiple ways as well as structural issues within courts.

“The contours of bail jurisprudence keep shifting with the stage at which bail is claimed,” said advocate Nipun Saxena, who practices at the Supreme Court. “The position would be very different from a stage where a fresh first information report is registered to a situation where all prosecution witnesses have been examined.”

Saxena pointed out that in Gurwinder Singh’s case, the Supreme Court had remarked that several protected witnesses were left to be examined in course of the investigation in the case.

He added: “In a case where the chargesheet has been filed or where prosecution witnesses have been examined, the court would be inclined to grant relief.”

The length of incarceration is another crucial factor in determining whether bail ought to be accorded, Saxena said.

This factor was given precedence by the Supreme Court in its Najeeb judgment. However, the court did not consider it in the Gurwinder Singh case by referring to the allegations against Singh and the fact that the trial against him had already begun.

On the other hand, Raj told Scroll that section 43D(5) is capable of both liberal and restrictive interpretation. “The former is essentially a constitutional interpretation as liberty is at the root of the fundamental rights,” he said. “But being restrictive in interpretation is essentially a textual reading of the draconian statute.”

Due to the subjectivity involved in such interpretation, the approach of the individual judges becomes paramount. This, said Raj, is evident from the conflicting views on section 43D(5).

Legal academic Anuj Bhuwania, who is professor at Jindal Global Law School in Sonipat, however, had a more disconcerting explanation. “The general unpredictability in jurisprudence of Indian courts is due to their inability to follow precedents,” he said.

According to him, inconsistency has been a standard problem across all jurisprudence of Indian courts. Moreover, “bail jurisprudence is anyway unpredictable due to being fact-specific,” he added.

Representative image. Photo: Reuters

Discretion in bail

Due to the fact-specific nature of bail, it is hard to set too rigid rules for its grant. Consequently, judges end up exercising oversized discretion, further shrinking the space for standards, according to legal experts.

Bhuwania said that India had a long history of passing legislation targeting terrorist activities that contain restrictive bail provisions and make bail almost impossible. He recalled that, similar to the trend for UAPA, bail was hardly granted to those accused under previous anti-terror legislation, the Terrorist and Disruptive Activities (Prevention) Act, in force between 1985 and 1995, and the Prevention of Terrorism Act, in operation between 2002 and 2004.

Raj offered a slightly different take. “Judicial policy should be more liberal when the statute is illiberal,” he said, with a note of cautious optimism. “The Supreme Court has shown the way in the Thwaha Fasal judgment”.