UAPA Can’t be Used to Deny Bail to Accused in Jail for Years: SC

Decision in KA Najeeb case clarifies that HCs and SC can see if rights of prisoner are being violated and grant bail

The Supreme Court on Monday, 1 February has passed a significant judgment on bail for people accused under the Unlawful Activities (Prevention) Act which should help ensure that the draconian provisions of the UAPA are not used to keep the accused in jail for years without trial.

Section 43D(5) of the UAPA is often cited by the government and the NIA as a sort of magic bullet, to refuse bail to persons accused of terrorism offences under the UAPA.

This section states that a person accused of such offences shall not be released on bail if the court, after going through the case diary and other information provided by the police, believes that there are reasonable grounds for believing that the accusation against the accused is prima facie true.

This restriction on the grant of bail had come to be seen as so strong that it would apply even if there were otherwise good grounds to provide bail, including the accused being in jail for many years without trial, or other violations of the fundamental rights of an accused.

However, the Supreme Court in its new KA Najeeb judgment has held that a provision like 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.

The key point here is that the court has laid this down as a precedent, and it is not to be just something done at the discretion/mercy of the government.

Back when Safoora Zargar (a student leader accused of being part of the conspiracy behind the Delhi riots) was granted bail on humanitarian grounds because of her pregnancy by the Delhi High Court, the Centre had insisted that this not be considered a judicial precedent, that it was only being done because the prosecution had agreed.

Thanks to this new judgment, however, the high courts and the Supreme Court can consistently grant bail in such cases, particularly where the accused has been languishing in jail for years without their trial being held – which is par for the course in most UAPA cases.

The facts in this KA Najeeb case dealt with precisely that situation. The accused had been in jail since 2015, and his trial was going to take a significant amount of time to complete, with the NIA saying some 276 witnesses needed to be called for it.

The Kerala High Court granted him bail in July 2019, citing the long period of incarceration. It was also noted by his lawyers that some of the co-accused for the case who had already faced trial had been acquitted while those who had been convicted had been given a sentence of 8 years. Najeeb had himself spent half that time in jail without his trial taking place.

The NIA had appealed against the high court’s order, resulting in this judgment by the Supreme Court.

The bench of Justices Surya Kant (who authored the judgment), NV Ramana and Aniruddha Bose noted a number of problems with the way the case had proceeded. Not only were there 276 witnesses to examine (none of whom had been screened), but the charges had also only been framed for the trial on 27 November 2020.

The apex court acknowledged the argument about convicted co-accused in the case only facing a maximum of 8 years imprisonment – by now Najeeb had spent nearly 2/3 that time in custody, without conviction.

“This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial,” the judgment says.

Since this right to a speedy trial had been violated here, the apex court felt there was a need to grant the accused bail, and clarified that Section 43D(5) of the UAPA could not act as a bar on such a decision.

The court did take care to clarify that this ruling would not apply to situations where a person has just been arrested, thereby distinguishing such situations from those covered by the apex court’s 2019 Watali decision. “However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon,” the judges felt there was no option but to grant bail.

This approach would balance the prosecution’s right to conduct a thorough trial and the accused’s rights, the judges held.

The Supreme Court also compared Section 43D(5) of the UAPA with the provision of the Narcotic Drugs and Psychotropic Substances (NDPS) Act which is used to deny bail in serious cases there. It found that the NDPS Act provision was stricter and required the court to find that the accused was prima facie not guilty – the UAPA provision however was more in the form of an additional ground to refuse bail rather than a catch-all prohibition.

This judgment could have significant implications for the accused in the Bhima Koregaon case, including lawyer-activist Sudha Bharadwaj, who have been incarcerated for over two and a half years and counting.

It could even prove relevant in the Bombay High Court’s forthcoming decision to grant bail or not to Varavara Rao, who has alleged cruel and inhuman treatment because of a lack of medical care, and for release on medical grounds.

The judges did add some additional bail conditions for Najeeb upon his release, given the seriousness of the offence in question – the attack on professor TJ Joseph in 2010 for purported blasphemy – and the fact that Najeeb had absconded from the authorities for a while.