The recent pronouncement by the Supreme Court in Union of India v. K.A. Najeeb is being touted as a ray of justice for several accused arrested under the draconian Unlawful Activities (Prevention) Act (UAPA). Shivangi Banerjee analyses the judgement and highlights the implications it might have for future cases. She further elucidates the timeline of UAPA and narrates the story of its permanence.
By Shivangi Banerjee, a second-year student from Presidency College, Bengaluru, Karnataka.
The respondent, K.A. Najeeb, a member of a fundamentalist group was accused of facilitating an attack on Professor TJ Joseph at Thodupuzha, Kerala in 2010. Najeeb was first arrested by the National Investigation Agency (NIA) in 2015 under the Unlawful Activities (Prevention) Act (UAPA).
Later, in 2019, the Kerala High court had granted him bail in the said case owing to pertinent delays in the trial, the same was challenged by the NIA.
The NIA had filed a Special Leave Petition (SLP) in the Supreme Court, challenging the Kerala High Court order since NIA special court had previously rejected the bail based on the UAPA provisions. The Investigation Agency had contended based on Section 43D (5) of UAPA that repudiates bail for offences under the said Act.
In its final holding, even though the Supreme Court dismissed the appeal raised by NIA citing respondents right to speedy trial protected under Article 21 of the constitution, the Court steered clear of laying out a principal standard that could make way for similar future cases.
The bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose, in their judgement affirmed the power of constitutional courts to grant bail for accused charged or arrested under the draconian UAPA. Despite what the court held in the present case, there are several issues related to UAPA and bail jurisprudence in general that seek answers.
The present article will focus on the case analysis for the present case while providing an overarching view of UAPA as a whole and Section 43D(5) more specifically.
The article argues that the interpretive choices in the present case should raise concerns as it disregards humanitarian bail conditions. Taking from Prof. Ujjwal Kumar Singh’s conception of the ‘ordinary and the extraordinary laws’[i], the analysis details the ‘overlapping’ of the ordinary and extraordinary laws. Arguing against the excessive power given to investigation agencies to facilitate convictions and the ‘construction of a suspect community’. Thereby strengthening the coercive aspects of the state.
A Brief Timeline: Becoming of UAPA (2019) Amendment
It’s probably essential to briefly shed light on the nature of UAPA before venturing into the specifics of the case. UAPA was first enacted in 1967 and is currently one of the most widely applied anti-terror laws in the country. The first enactment of the act gave the Central government the power to ban any association they deemed harmful to the ‘secular fabric and communal harmony’ of the country.
In 2004, the law underwent some major changes to expand its jurisdiction and soon this ‘extraordinary’ law started bearing a striking resemblance to older anti-terror laws like the Prevention of Terrorism Act (POTA) 2002.
POTA 2002 was introduced by the National Democratic Alliance (NDA) to combat terror and terrorism, it was later repealed by the United Progressive Alliance (UPA) government citing draconian attributes. Two years into POTA the newly effectuated UPA government refurbished UAPA, making it even more draconian. Thereby, retaining the effects of POTA and the name of UAPA.
In 2019, at the helm of its second term, the BJP government brought amendments to UAPA (2004) and equipped it with broader definitions and wider misuses. The government of India gave to itself the power to categorise not only an organisation but also an individual as a ‘terrorist’ before the subject is proven guilty.
The act that supposedly had humble beginnings soon turned into a tool used for transgressing fundamental rights of the very citizens it claims to protect. Often labelled as ‘India’s anti-India act‘, UAPA contains provisions that have been subjected to frequent criticism.
The abuse of power through one such provision under this extraordinary statute is observed and discussed in the present case.
Facts of the Case
K.A. Najeeb (hereinafter known as the respondent), an active member of an extremist organization called the Popular Front of India (PFI) was arrested on the charges of being one of the main conspirators of a pre-planned attack on Professor T.J. Joseph of Newman College, Thodupuzha.
The victim while framing a question paper had included a question that was considered objectionable against a certain religion. The respondent in association with the other members of an extremist Islamic organization (Popular Front of India) decided to avenge their religious sentiments by attacking the victim.
On July 4, 2010, at about 8 AM, a group of people with a common object, attacked the victim while he was returning home with his mother and sister. Over the course of the attack, members of the PFI forcefully intercepted the victim’s car, restrained him and chopped off his right palm with choppers, knives, and a small axe. Country-made bombs were also hurled at bystanders to create panic and terror in their minds and to prevent them from coming to the aid of the victim. An FIR was consequently lodged against the attackers by the victim’s wife.
After the due course of the investigation, it was found that the attack was part of a larger conspiracy that allegedly involved meticulous preplanning, numerous failed attempts and the use of dangerous weapons. Hence, the provisions under UAPA were invoked against him.
Although most of the respondent’s co-conspirators have been tried and held guilty by the NIA special court, the accused was declared an absconder. The co-accused were awarded a cumulative sentence ranging between two and eight years’ rigorous imprisonment.
Najeeb was eventually found and arrested by the NIA and was put in judicial custody for nearly five years without being tried or adjudicated by any court.
The respondent approached the court for bail as many as six times between 2015 and 2019, claiming parity with other co-accused who had been enlarged on bail or acquitted. His pleas were rejected as the respondent prima facie knew about the attack and had assisted and facilitated the attack.
This made him ineligible for bail under Section 43D (5) of the UAPA, as normal bail rules do not apply to an accused under UAPA, it allowed courts to deny bail on the basis of reasonable doubt. The respondent, again approached the High Court for the third time, questioning the Special Court’s order denying bail.
The High Court through the impugned order, released the respondent on bail noting that the undertrial respondent could not be kept in custody for too long. Especially when the trial was not likely to commence in the near future and not doing so would cause serious suffering to him.
The operation of the aforementioned bail order was, however, stayed by the court and an appeal was filed by the NIA stating that the High Court had erred. Hence, the present case.
Whether a violation of Article 21 can oust the statutory rigours under Section 43D(5) of UAPA
Whether the court is duty-bound to deny bail where the suspect is prima facie believed to be guilty
Whether the court’s decision to grant bail can be challenged without any special grounds
Strong contentions were presented from both sides. Learned Additional Solicitor General argued for the appellant, stating that the High Court erred in granting bail without adverting to the statutory rigours of Section 43D(5) of UAPA.
Relying upon judgment in National Investigation Agency v. Zahoor Ahmad Shah Watali[ii], it was highlighted that bail proceedings under the special enactment were distinct and the Courts are dutybound to refuse bail where the suspect is prima facie guilty. It was further contended that the fact that the respondent had absconded for years makes apprehension towards his bail even more legitimate.
Concerning the early conclusion of the trial, he contended that the NIA had filed an additional affidavit to examine 276 witnesses. At the same time, the NIA was expecting to conduct the trial on a day-to-day basis and complete it within a year.
On the other hand, the learned counsel appearing for the respondent highlighted that many of the co-accused had been acquitted and those who were held convicts had also been awarded a sentence of not more than eight years.
Given how the respondent has already suffered incarceration of almost five-and-a-half years without the trial, ‘violate his Constitutional liberty and rights to have him serve most of his sentence without any adjudication of guilt by a judicial authority’.
He urged that once the High Court had exercised discretion to grant bail, the same ought not to be interfered with except in rare circumstances. Relying upon Shaheen Welfare Association v. Union[iii], he further contended,
“such protracted incarceration violates the respondent’s right to a speedy trial and access to justice; in which case, Constitutional Courts could exercise their powers to grant bail, regardless of limitations specified under special enactments.”
It was reiterated that at the time of deciding an application for bail, it would be necessary to record reasons, albeit without evaluating the evidence on merits.[iv]
Counsel also stated that numerous judgments enshrine the liberty guaranteed by Part III of the Constitution which within its protective ambit gives access to justice and a speedy trial.
Reference was made to the case where it was held that undertrials cannot indefinitely be detained for a pending trial. Based on this argument, the counsel advanced,
“owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.”
What Did the Court Say?
The Supreme Court upheld the decision of the High Court attempting to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously, the respondent’s rights guaranteed under Part III of the Constitution.
Hence, the SLP filed by the appellant was found unmaintainable.
Whether the violation of Article 21 can oust the statutory rigours under Section 43D(5) of UAPA
It was held that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. It was held,
“Courts are expected to appreciate the legislative policy against grant of bail but 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. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”
Whether the court is duty-bound to deny bail where the suspect is prima facie believed to be guilty
It was further added that both the restriction from the statute and the powers promised to the Supreme Court under constitutional jurisdiction can be well harmonised.
Despite the accused being prima facie under the suspicion of being guilty, the judges while acknowledging the nature of offences kept in mind the time the respondent had spent in custody. But given the ‘unlikelihood of the trial being completed anytime soon’, the High Court’s decision of granting bail was justified. The court advanced,
“An attempt has been made to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of our Constitution have been well protected”
Whether the court’s decision to grant bail can be challenged without any special grounds
It was said obiter dictum(in passing) that Section 43D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under the UAPA.
Instead, Section 43D (5) of UAPA merely provides another possible ground for the competent court to refuse bail. This served as an additional point for the court to enlarge the respondent on bail and therefore did not challenge the High Court’s decision.
The Hon’ble bench imposed a few additional conditions on the respondent in the best interest of society at large and to ensure that the respondent didn’t indulge in any other communal attacks.
The respondent was ordered to mark his presence every week on Monday at 10 AM at the local police station and inform in writing that he is not involved in any other new crime.
Additionally, the respondent is refrained from participating in any activity which might enrage communal sentiments. It was further held that any violation of the bail conditions, tampering of evidence, or hampering the trial will lead to the direct cancellation of the respondent’s bail.
In the past thirty years, laws like TADA and POTA were heavily criticized and eventually repealed for their stringent and ‘anti-people’ provisions. This however was made into a futile step as the anti-terror laws succeeding these older statutes carried the exact provisions verbatim only with a bigger scope of misuse.
This scope can be seen in the present case as the threshold announced under this provision is much lower than the older anti-terror laws or the ‘ordinary’ criminal law. UAPA was first established for the stated purpose of preventing individuals from acting in a manner ‘prejudicial to state objectives’ which was soon labelled as ‘advanced’ POTA.
In a complex network of laws that require scrutinization at every aspect, UAPA’s prior motive was to ease the burden of the criminal justice system during extraordinary events. This was soon replaced with a plaything dictated by the whims of the executive.
The abuse and use of extraordinary laws have seen a noticeable surge in the past few years. The draconian provisions justified in the name of the ‘extraordinary’ are gradually incorporating themselves in ordinary law. Therefore, blurring the line between temporary provisions for extraordinary events and laws under legislative review.
The need for extraordinary laws was justified premised on the intension to ensure ‘closer and faster delivery of justice’ as well as to lower the rate of convictions.[v]
The present scenario, as we know, is in complete contradiction to the ethos of ‘extraordinary’ laws and the rate of conviction has skyrocketed owing to the misuse of the broadened scope of the Act.
Ujjwal Kumar Singh had highlighted this phenomenon of the gradual fudging of boundaries between the two systems when the UAPA was still in the formative stages.
He had highlighted the findings of the Malimath Committee Report which had underlined a concerning amount of ‘extraordinary’ provisions being applied for ordinary crimes in the name of ‘making the system simpler’.[vi]
Various suggestions have been made to reform the criminal code for opening it to extraordinary provisions that often annihilate basic human rights.
This not only goes past the theoretical scope of the laws which should be limited to extraordinary situations but it also dislodges the present procedural laws of the CrPC.
In practice, UAPA has surpassed even its own threshold as it is often misused to curb dissent and freedom of speech.
Section 43D (5) of UAPA gives the State the prerogative to deny bail whenever it deemed necessary. The standard of what is deemed ‘necessary’ is so low that is it is prone to misuse and the blatant abuse of power by investigative agencies.
This gross misuse of power was observed recently in the case of Bhim Army Chief Chandra Shekhar Azad during the Delhi riots.[vii] Azad was detained and eventually acquitted with a long gap of custody.
The violation of Article 21 of the Constitution which protects individual liberty and the right to protest is often overlooked at the ‘interlocking of ordinary and extraordinary laws’. The same has repeated itself in the present case.
It is made out of the facts that the court gave utmost importance to the violation of the fundamental right to a speedy trial and not so much on the suspect’s likelihood of being guilty.
It is also to be noted that the judiciary has the power to exercise its discretion to oust statutory restrictions under UAPA and therefore this case can be used as a precedent for judicial activism. Bearing in mind that this case involves a substantial question of law, it can also influence the procedure carried out for witness investigation.
As the respondent was incarcerated for a long period of time, his right to life under Article 21 was violated. Therefore, the court’s decision of not addressing the statutory embargo of Section 43D (5) of UAPA and providing additional conditions for public benefit does not weaken the merit of the decision.
On the other hand, it raises a few questions about custodial rights and draws a line between the scope of the right to a speedy trial and the present-day reality of delayed trials.
The problem with Section 43D (5) of UAPA
Section 43D (5) of the Unlawful Activities (Prevention) Act and the uncompromising provisions under it have been often used as a weapon by state prosecutors, making it almost impossible for those accused under UAPA to get bail.
It is pertinent to mention here, according to the National Crime Records Bureau (NCRB) data, of all the accused arrested under the UAPA, only 2.2 per cent end up being convicted by the courts.
The present case is telling of this fact.
Like Najeeb, many under-trial custodians are arrested and sent behind bars for years, while the trial drags on while the investigative agencies take an unreasonable amount of time for examining witnesses. The lapses in investigation and the framing of the accused under extraordinary laws like UAPA, even if they are ultimately acquitted, could cost them a lifetime.
In a similar case[viii], bail was denied to the respondent based on the insubstantial and empty accusations raised by the investigation agency. The same was not even subjected to scrutiny.
The principle of natural justice incorporated in the constitution ensures fairness and shields individual liberty. Section 43D (5) of UAPA is in direct violation of these principles, leaving the accused with little or no right at all.
Even though the court did not lay down any concrete principles upon which future bail applications could be made, the present case should serve as a precedent for similar cases to uphold the right to liberty and fair trial.
Right to a Speedy Trial
This case also brings to attention the way India’s anti-terror agencies function, the deliberate lethargy of the investigation and the trial procedure keeps the accused behind the bars for years.
In the case of State v. Mohd. Afzal the extent of misuse was significantly broad as the judiciary claimed that ‘there was no reason to misbelief the police’. Thereby, completely disregarding the common practice of custodial crimes.
In the present case, the respondent had to apply for bail six times in the duration of four years to get justice. Since the right to speedy trial includes the stage of the investigation, the courts in future will have to take this reality into account and expand the scope of the judgement given for this case.
Investigative agencies often use delaying tactics, some of which could be witnessed in various recent cases.[ix] Now that the constitutional importance of the right to a speedy trial is held to be higher than statutory restrictions, the court should acknowledge such remedies against the abuse of power under laws like UAPA.
As previously mentioned, the reasons stated for the making of an extraordinary law like UAPA differ from its application. They were made to be seen as ‘exceptional laws’ to carve out the ‘exceptional’ and the ‘other’. Rajshree Chandra in her article while explicating the ‘exceptionality’ defines their need, implication and reason. She advances,
“laws may be monstrous in their implications, they may violate civil liberties but are needed to deal with exceptional situations. The threat of threat becomes the raison d’etre for exceptional laws.”[x]
One of the reasons often cited to justify UAPA is that its need arose out of a legal vacuum, therefore to avoid delays in trials. Interestingly, the aforementioned complications and misuse of power rekindled in the way of laws like the UAPA and the National Investigation Agency Act (NIA). The placement of laws in a democratic setup like ours used to expose the underbelly of the State. Now, it is (un)safe to say that the belly is visible and expanding, gulping the very little scope that was left.
[i] Prof. Singh in his work has explained how ‘extraordinary’ laws like POTA, TADA (Terrorist and Disruptive Activities (Prevention) Act, etc., were initially justified in the name of the ‘exceptional’ conditions. Such conditions required actions in law that went beyond the ‘ordinary’ criminal law and couldn’t be resolved by what was meant to tackle the normal. The erosion of these laws and their permanency led to an overlapping of ‘extraordinary’ provisions into/ with ‘ordinary’ laws, therefore nullifying the justification from the exceptional.
He takes the conception of the word ‘ordinary’ from Upendra Baxi, The Crisis of the Indian Legal System, Vikas, Delhi, 1982
[ii] (2019) 5 SCC 1.
[iii] (1996) 2 SCC 616
[iv] (2001) 6 SCC 338
[v] Ujjwal Kumar Singh. (2004). State and Emerging Interlocking Legal Systems: ‘Permanence of the Temporary’. Economic and Political Weekly, 39(2), 149-154. from http://www.jstor.org/stable/4414494, p 3
[vi] Ibid, p 4.
[vii]Sekhri, A. (2021, February 28). Bail in Terror Cases: Zahoor Watali, and the Fault Lines in the UAPA. The Proof of Guilt. https://theproofofguilt.blogspot.com/2019/04/bail-in-terror-cases-zahoor-wataliand.html
[viii] NIA v. Zahoor (2019) 5 SCC 1
[ix] 1986 SCR (3) 802
[x] Chandra, R. (2021). “Extraordinary” Laws Are Becoming Central to the Politics of Repression in India. The Wire. https://thewire.in/rights/extraordinary-laws-are-becoming-central-to-the-politics-of-repression-in-india