How special statutes to imprison citizens lead to inconsistent judicial orders

The wide and seemingly discretionary power in grant of bail vested in courts by Section 43D(5) of the Unlawful Activities (Prevention) Act, Section 37 of the Narcotic Drugs and Psychotropic Substances Act, and Section 45(1) of the Prevention of Money-Laundering Act leads to inconsistent judicial decision-making, which militates against Article 21 of the Indian Constitution, writes MD. TASNIMUL HASSAN.

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THE presumption of innocence until proven guilty is the cardinal principle of the criminal justice system. The principle "[B]etter that ten guilty persons escape, than that one innocent suffer," has found support from several historical figures as varied as English jurist William Blackstone, German statesman Otto von Bismarck, Argentine Marxist revolutionary Che Guevera and American polymath Benjamin Franklin.
The Charter of Magna Carta, often regarded the basis of liberty and justice, provided that "no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived if his standing in any other way, nor will he be proceeded against with force, except by the lawful judgment of his equals or by the law of the land."
Notably, Justice V.R. Krishna Iyer propounded in the Supreme Court's judgment in the case of State of Rajasthan vs. Balchand alias Baliay (1977) that, "The basic rule may perhaps be tersely put as bail, not jail."
When Aryan Khan, with the "best legal team," spent 26 days in judicial/police custody without even prima facie consuming or possessing something illegal, then not only the question of access to justice, but the inherent flaws in the system are brought to sharp relief.
Also read: Understanding why Aryan Khan got bail in the drugs-on-cruise case
Of the thousands of bail applications pending in the country, a majority relate to some "special" statutes. The unnecessary embargos prescribed by some brolly "special" legislations, need to be done away with, as soon as it may be, since "deprivation of liberty even for a single day is one day too many." In furtherance of such provisions, any individual accused of committing an offence is deemed to be guilty until proven innocent.
In this piece, I shall reflect on three such provisions: Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), and Section 45(1) of the Prevention of Money-Laundering Act, 2002 (PMLA), from the perspective of Article 21 of the Constitution of India, which talks about personal liberty and "procedure established by law."

High bar under UAPA

UAPA is an "anti-terror" legislation, for which the conviction rate was below 2% between the years 2015-19. Section 43D(5) of UAPA provides that: "… [a]ccused person shall not be released on bail or on his own bond if the Court … is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true." [emphasis added]
A two-judge bench of the Delhi High Court, in Zahoor A.S. Watali vs. National Investigating Agency (2018)  had held that trial courts must not act "merely as a post-office of the investigating agency" but should "scrutinise the material with extra care" in determining whether a "prima facie" case exists.
Upon an appeal moved by the National Investigating Agency (NIA), a two-judge bench of the Supreme Court "SC), in NIA vs. Zahoor A.S. Watali (2019), rejected the High Court's decision and lowered the bar for courts to examine the veracity of the case, holding that bail can be denied by relying upon prosecution documents even though they would be inadmissible during the trial.

However, the SC has granted bail to accused person(s), notwithstanding section 43D(5), mostly because of the "wholesale breach of constitutional right to speedy trial" (see, for instance: K.A. Najeeb (2021), Angela Harish Sontakke (2016), and Sagar Tatyaram Gorkhe (2017)). Moreover, earlier this year, the Bombay High Court granted six months' bail to Elgar Parishad case accused Varavara Rao on grounds of sickness and age; the Karnataka High Court granted default bail to over 115 accused in the 2020 Bengaluru riots, since NIA court had extended the time for investigation without hearing the accused violating the fundamental right of the accused to be treated fairly; the Delhi High Court granted bail to three student-activists doubting the prosecution version if the alleged offences committed by the accused persons even qualified as "terrorist" activities.
Most recently, the SC granted bail to accused persons in a controversial case involving possession of "Maoist" literature, which is seen as a "liberty affirming" judgment; although it further complicates the discretionary scheme of UAPA.
Also read: Has the Thwaha Fasal judgment complicated UAPA even further?
"Discretionary" embargo under NDPS Act
With a dismally low conviction rate and inconsistency in data on other parameters, NDPS attempts to counter drug-trafficking by employing several harsh provisions, such as peculiar restrictions on bail. The categorisation of offences under NDPS is broadly vague and unacceptable. By employing a statute as poorly conceived as the NDPS, the criminal justice system appears to be collapsing.
Section 37(1) of NDPS Act imposes twin pre-bail conditions mandating that the accused shall not be released on bail unless "the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence …" Most of this embargo relates to cases of "commercial quantity," which forces the Narcotics Control Bureau (NCB) to invoke charges of conspiracy and drug-trafficking, which are comparatively graver offences in relation to negligible possession/consumption of prohibited substances. For instance, Aryan Khan had contended that he was not in possession of drugs, thus, the embargo will not apply; yet he spent 26 days in prison, partly, if not entirely, because of the "conspiracy" and "trafficking" charges invoked by NCB.
Also read: Aryan Khan's case the latest in dangerous trend of unfounded conspiracy angles and blatant media trials
The SC observed in State of Punjab vs. Baldev Singh (1999) that "Section 37 makes all the offences under the Act to be cognizable and non-bailable and also lays down stringent conditions for grant of bail." However, the Allahabad High Court recently granted bail in two separate cases involving alleged possession/recovery of 350 kg and 628 kg of marijuana.
No doubt that while the NDPS Act gravely harms the poor section of the society, it has recently also been used to target celebrities.

 "Disguised" PMLA

 The Enforcement Directorate (ED), the investigating agency under the PMLA, has secured around 15 convictions in the past 15 years, averaging to a mere one conviction each year.
Widely similar to the UAPA and NDPS Act scheme, Section 45(1) of PMLA provides two "pre-bail conditions" insofar as bail should only be granted if there are "reasonable grounds" for believing that the accused is not guilty of such offense, and that s/he is not likely to commit any offense. The SC in Nikesh Tarachand Shah vs. Union of India (2017) struck down the said two conditions by holding them to be violative of Articles 14 and 21 of the Constitution.

 
However, in P. Chidambaram vs. ED (2019), while refusing anticipatory bail to Chidambram, the Supreme Court observed that a "scheduled offence" is a sine qua non for the offence of money laundering. Although Chidambram was granted regular bail after 106 days in judicial custody, this case, wherein the first information report was registered almost after a decade, speaks volumes about the "independence" of ED.

Meanwhile, several High Courts across the country have expressed divergent views on whether the 2018 amendment alters the basis of Nikesh Tarachand Shah. Notably, one of the primary reasons for striking down the twin pre-bail conditions was that section 45(1)(ii) reversed the burden of proof on the accused to prove their innocence. Since this provision has not been amended insofar as the burden of proof is concerned, therefore, the basis of the Nikesh Tarachand Shah judgement has not been altered yet.

Also read: Explained: Supreme Court's guidelines on grant of bail after chargesheet is filed

Takeaways

As seen above, one of the primary problems being faced by India's justice system is that courts enjoy wide "discretionary" powers, which results in inconsistent decisions throughout the judicial vertical.
In matters of bailable nature, bail is a right of the accused; whereas in matters of non-bailable nature, bail becomes the discretion of the Court.  At least in cases of bail vs. jail, courts should adopt evidence-based and not just "prima facie" standards.
Nevertheless, until we continue to have such brolly statutes that deem an accused to be guilty by default, bail might only seem a dream to many of those who cannot afford the "best legal team."
Courts should think beyond what the State generally prescribes, and respect individual liberty for a freer future.
(Md. Tasnimul Hassan is a law student at Jamia Millia Islamia, New Delhi. The views expressed are personal.)