Despite denial by NIA Court, why Anand Teltumbde has a right to temporary bail

We are yet to be enlightened of the reasons for the NIA Court's denial of bail to Anand Teltumbde, because its order in the case is yet to be published on its website.  Whatever the reasons, the denial of bail, on the face of it, is vulnerable on several grounds.

Article 21 and the rights of prisoners

Article 21 of the Indian Constitution declares that "no person shall be deprived of his life or personal liberty except according to a procedure established by law." The meaning of the word "life" in Article 21 was explained by Justice K. Subba Rao in the Kharak Singh case, who quoted the words of American jurist Justice S.J. Field from the U.S. Supreme Court's judgment in Munn vs. Illinois:

"Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world."

And when the hour does demand that a person must be deprived of life or liberty, the same has to be done in accordance with due process of law, as held in Sunil Batra vs. Delhi Admn.

A dynamic meaning must attach to life and liberty, especially when considering the rights of undertrials and prisoners. This was the approach adopted by the Supreme Court in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi, where it declared:

"8. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights."

The court in this case was dealing with a petition under Article 32 regarding the rights of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974. The petitioner had challenged provisions of the Act which heavily restricted and laid out a cumbersome procedure for meetings with family members and legal advisors. The court declared the impugned provisions unconstitutional as they violated Articles 14 and 21 of the Constitution.

In Sunil Batra vs. Delhi Admn., the Supreme Court rejected the hands-off doctrine and ruled that fundamental rights do not flee the person as they enter the prison. It is also pertinent to note that while the Indian Constitution does not have a provision akin to the VIII Amendment of the United States Constitution, which outlaws "cruel and unusual punishments", nevertheless the same has been read into Article 21, as seen in Nikesh Tarachand Shah vs. Union of India.

Pursuant to this jurisprudence, Indian courts have regularly enlarged prisoners on temporary bail on various occasions. These include funerals, marriages, the birth of children, appearing for exams, etc. This list is illustrative and not exhaustive. The reasoning for this has been that incarceration is the only sentence awarded to the prisoner, and accordingly any deprivation of their other rights would be akin to punishing them without cause.

Also Read: Why were Activists Like Anand Teltumbde Who Work For the Disadvantaged Jailed?

The Draconian Regime of UAPA  

Teltumbde is facing trial for alleged offenses under the Unlawful Activities (Prevention) Act, 1967, popularly referred to as the dreadful UAPA. The UAPA puts a special bar on the grant of bail when the court is of the opinion that the accused is "prima facie" guilty of committing the alleged offenses.

Also Read: 3 years after Bhima Koregaon: How criminal law was violated 

Section 43D(5) of UAPA reads as: "Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.

"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 is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

UAPA is not the only statute to carry such a provision. Some of the other statutes that include a similar, if not equally harsh, bar on the grant of bail include the Terrorist and Disruptive Activities (Prevention) Act 1987, the Prevention of Terrorism Act, 2002, the Maharashtra Control of Organised Crime Act, 1999, the Narcotics Drugs and Psychotropic Substances Act, 1985, etc. Such provisions make it incredibly hard to obtain bail as they turn conventional bail jurisprudence over its head.

Generally, while considering a bail plea, the court has to consider (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offense; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behavior, means, position, and standing of the accused; (vi) likelihood of the offense being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice, being thwarted by grant of bail, as observed in Prahlad Singh Bhati vs. NCT, Delhi and Gurcharan Singh v. State (Delhi Administration).

However, under the UAPA, bail can be denied if the mere accusation seems true, regardless of whether the accused has not committed the offense. This is because the Act requires the court to deny bail if there are "reasonable grounds" for "believing" that the "accusation" against the accused is "prima facie true."

In addition to this, the accused cannot even produce any of their evidence which may be exculpatory. Further, the prosecution often withholds exculpatory evidence it may have found, and accordingly, the only thing that the court can rely on at this stage is the evidence presented by the prosecution. This too has to be looked at only in a prima facie manner and the court cannot examine the validity or quality of the said evidence at this stage.

Teltumbde Deserves Bail on Humanitarian Grounds

It is now established that a statutory bar on bail does not oust the jurisdiction of a constitutional court to grant bail when it is found that the fundamental rights of the prisoner are violated. This, considered with the aforementioned jurisprudence evolved by the Supreme Court with regard to the basic inalienable rights of prisoners, by itself, would lead to the conclusion that the denial to meet his ailing mother in light of his brother's death violates Anand Teltumbde's right to life and dignity under Article 21 of the Constitution.

However, if even this argument stands to be rejected, Teltumbde deserves bail on humanitarian grounds in light of the Bombay High Court's recent judgment reported as Surendra Pundalik Gadling vs. Senior Inspector of Police.

Surendra Gadling, a co-accused in the Bhima Koregoan case, lost his mother to Covid-19 during the pandemic. He filed a bail application before the NIA court, which was rejected. Against this order rejecting his bail application, Gadling preferred an appeal before the Bombay High Court. The NIA opposed Gadling's appeal on the ground that the NIA court has found accusations against him to be prima facie true and accordingly the bar on bail under Section 43D(5) would apply.

The division bench consisting of Justices S.S. Shinde and N.J. Jamadar allowed Gadling's appeal and granted him bail. While doing so, the Bombay High Court relied on the decision reported as Nusrat vs. State of Maharashtra, where a single-judge bench of the Bombay High Court had released on humanitarian grounds an accused under the Maharashtra Control of Organised Crime Act on temporary bail to attend to their deceased parent's funeral.

Stating that "the first death anniversary of an immediate family member has an element of religious, personal and emotional significance" and that "the appellant has not been able to participate in any of the rites/rituals in connection with the death of his mother" the court found that Gadling had made a case for bail on humanitarian grounds.

A similar approach was adopted by the Delhi High Court in the case reported as Natasha Narwal vs. State (Delhi of NCT). In this case, the applicant was incarcerated and was awaiting trial for alleged offences under UAPA. During this time, the applicant's father passed away due to Covid-19. The applicant moved for temporary bail and the prosecution opposed the same. The Delhi High Court released the applicant on temporary bail to perform their parent's final rites.

Also Read: Natasha Narwal allowed by high court to attend father's last rites

Gadling isn't the only accused in the Bhima Koregoan case to be enlarged on bail to attend to the final rights of their deceased parent. In 2019, a bench headed by Justice S.V. Kotwal of the Bombay High Court had granted temporary bail to lawyer and civil rights activist Sudha Bharadwaj to attend her father's post-funeral rituals and rites at Bengaluru.  Similarly, when Rona Wilson, another accused in the Bhima Koregoan case, lost his father in August 2021, the special NIA court granted him temporary bail to attend his father's post-funeral rituals. It is reported that while doing so, the special NIA court relied upon the High Court's judgment in the Surendra Gadling case.

By no stretch of the imagination is Anand Teltumbde the first UAPA accused to ask for temporary bail from an NIA court. Considering the instances involving Sudha Bharadwaj and Rona Wilson, and the Bombay High Court's judgment in the Surendra Gadling case, the NIA court's decision to deny temporary bail to Anand Teltumbde is inconsistent with rulings made in similar cases, to say the least. More specifically, it disregards precedent as the decision of the Bombay High Court in Surendra Gadling's case is binding upon the Special NIA Court.

Also Read: Bhima Koregaon case: Bombay HC grants default bail to Sudha Bharadwaj, but declines the same to eight other accused

In recent times, India has witnessed a certain contempt for established bail jurisprudence. The Supreme Court has tried to course-correct this and has repeatedly re-declared the law on bail. However, this is yet to percolate down to the courts of first instance. While the top court has stated that "deprivation of liberty even for a single day is one day too many", thousands continue to languish in jail while they await trial. This is not without cost. The undertrials pay a huge cost in the form of lost time, lost opportunity, loss of reputation. Some unfortunate ones pay these costs in the form of missing the funerals of their loved ones and the birth of their children. And these are the costs we know of – they pay in many other ways that we are unaware of. When will this stop?

[Hamza Lakdawala is a journalism graduate, who is pursuing his LL.B. at Mumbai University. He is currently a Research Associate at the Chambers of Senior Advocate Indira Jaising. He tweets at @hamzamlakdawala.]