New Delhi: From bombing accused K.A. Najeeb to Bhima-Koregaon accused Vernon Gonsalves, the Supreme Court has allowed bail to many accused of terrorism in the last three years. It has allowed bail despite its 2019 order which pegged the standard for allowing bail under the Unlawful Activities Prevention Act (UAPA), 1967 to be higher, a decision which has rarely followed.
Bail under the UAPA has been a contested constitutional issue for the significant restrictions posed by Section 43(D)(5) of the Act. This section requires courts to deny bail if they have reasonable grounds to believe that the accusation is prima-facie [on first look] true.
“Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code [on chargesheet] is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true,” the provision reads.
In an assessment of whether bail should be allowed, the courts are mandated to only look at the case diary, which is an investigating officer’s record of day-to-day investigation and the charge-sheet, which involves charging the accused with specific provisions after a probe.
For the first time, the Supreme Court had interpreted this provision in the 2019 landmark case of terror-accused businessman Zahoor Watali, who was accused by the National Investigation Team (NIA) of waging war, syphoning off funds, and terror-funding.
This case reached the SC after the Delhi High Court allowed bail to Watali after weighing and examining evidence, finding that a case was made out for it.
Deciding the appeal, the SC reversed the HC decision and significantly limited the extent of scrutiny that a court could undertake while granting bail. Investigating agencies were only required to prove a prima-facie case and required to examine the ‘merits’ of a case, it said.
“The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities,” the NIA contended.
The court accepted this contention of the NIA. It meant that the standard for allowing bail became much higher, as investigating agencies were only required to prove their case to a limited extent at the stage of bail. Many legal counsels have since stressed that the decision requires a reconsideration of the principles it provides.
“The Watali judgement further ties the hands of the defence. The grant of bail is rendered impossible till the end of the trial, which could take generations. The judgement needs to be reconsidered,” Justice Gopal Gowda said.
Five years since this decision, the Supreme Court has allowed bail despite the strict test laid down in this case. ThePrint looks at cases where the SC has allowed bail in terrorism cases despite this ratio laid down.
Najeeb case
In the 2021 K.A. Najeeb case judgement, which was delivered just two years after the above decision in Watali, the Kerala High Court had granted him bail after considering five years of his incarceration pending trial.
Najeeb, a member of the Popular Front of India (PFI), was accused in a terrorism case involving the attack on T.J. Joseph. In 2010, the Malayalam professor was attacked by the PFI, which accused him of blasphemy in setting a question paper.
The HC’s bail decision was based on the right to speedy trial guaranteed by the Constitution as a part of right to life.
However, the NIA challenged the bail before the top court based on the Watali decision.
The apex court rejected the challenge, noting that the Watali decision was based on different facts and that the constitutional courts, such as the HC and the SC, reserved the power to allow bail in such terrorism cases.
“As regards the judgment in NIA v. Zahoor Ahmad Shah Watali cited by the learned ASG, we find that it dealt with an entirely different factual matrix… It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution,” it had observed.
“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.”
Gonsalves & other cases
As for Vernon Gonsalves, he and fellow colleagues were accused of inciting caste-based violence through speeches in December, 2017, triggering clashes at Bhima Koregaon and neighbouring villages in Maharashtra. The writer-columnist was booked under the UAPA.
The Bombay HC had rejected his bail application on the basis of Section 43(D)(5) of the UAPA.
Gonsalves had then appealed to the SC against the Bombay HC decision, which insisted on a surface level review of the evidence before it and found that the allegations against him could not meet the prima-facie, or first look standard, which was required to be satisfied.
In this case, the court took note of the Watali decision, but said that the merits may be considered to determine whether the test was met.
“What [the Watali case] contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the court of its worth,” it observed, while granting bail to Fernandes in 2023.
This line of reasoning was also adopted in the case of Thwaha Fasal, where the court also undertook a surface level analysis to decide the case before it instead of relying on a pure ‘prima-facie’ analysis.
The journalism student was arrested in 2019 in Kerala, and paraphernalia supporting the banned CPI (Maoist) were allegedly seized from him. He was granted bail in 2021.
More recently, in July, the SC had allowed bail in a case of counterfeit currency noting that the decision in the Watali case was not intended to be a bar on the grant of bail.
Setting aside an order of the Allahabad HC which had earlier rejected bail, the top court took note of the 9 years of imprisonment of the accused. It noted the decision in the Najeeb case, which had spoken of fair trial to allow bail to the accused.
“A constitutional Court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed,” the top court said.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint
(Edited by Tony Rai)