‘Jail, not bail’: Is the SC setting the clock back, asks PUCL about Gurwinder Singh judgment

Leading civil rights organisation People’s Union for Civil Liberties has criticised the Supreme Court for ignoring the existing precedent that tries to temper the harsh anti-terror legislation Unlawful Activities (Prevention) Act, 1967 by applying a balm of constitutional principles. 

LEADING civil rights organisation, People’s Union for Civil Liberties (PUCL) has criticised a recent judgment of the Supreme Court where it applied the Watali jurisprudence in denying bail to Gurwinder Singh.

Singh is accused under the Unlawful Activities (Prevention) Act, (UAPA) 1967 of receiving funds illegally from the proscribed Sikhs for Justice organisation for furthering a secessionist agenda for a separate State— Khalistan— for Sikhs.

The police have alleged that Singh was found in possession of cloth banners with the terms “Khalistan Zindabad” and “Khalistan Referendum 2020” written on them.

On February 7, a Supreme Court Bench of Justices M.M. Sundresh and Aravind Kumar denied bail to Singh, relying on the court’s 2019 judgment of Watali which had interpreted Section 43D(5) of the UAPA and held that bail could be denied under the UAPA if accusations appear to be prima facie true based on materials on record.

While denying bail to Singh, the Bench held that under the UAPA, bail is an exception and jail is a norm.

Applying Watali judgment against its constitutional principles

In its press release, the PUCL has commented that the court’s failure to apply constitutional principles on the interpretation of the UAPA bail provisions is a “failure of constitutional justice”.

It says that by applying the Watali judgment, the court privileges the UAPA over the Constitution and has reversed a core principle of constitutional justice articulated by it under the leadership of Justice Krishna Iyer.

While dismissing Gurwinder Singh’s UAPA bail application, the court opined that the UAPA was an exception to ordinary criminal law and bail could only be considered if no prima facie case was made out based on perusal of the police report and diary before the court.

The PUCL has remarked that the interpretation of the court of bail provisions of the UAPA in the Watali judgment is rather “harsh”.

It has further stated that the factual matrix of the case does not indicate that the accused were involved in any violent act. It notes: “[Despite that, he was] charged under the draconian provisions of the UAPA for associated activities like raising funds for a terrorist act (Section 17), conspiracy to commit a terrorist act (Section 18) and concealing a person knowing that such person is a terrorist (Section 19).

In the press release, the PUCL states that the court failed to take into consideration subsequent judgments that have tempered the harshness of UAPA’s bail provisions.

One of those judgments is the July 28, 2023 verdict of the Supreme Court Bench of Justices Aniruddha Bose and Sudhanshu Dhulia.

On July 28, the Supreme Court granted regular bail to Vernon Gonsalves and Arun Ferreira, two of the accused in the Bhima Koregaon-Elgar Parishad case, after they had been incarcerated for five years without a trial.

Contrary to what the court had held in Watali, that it does not need to go into the admissibility and evidentiary value of the evidence presented by investigation agencies, in Vernon and Arun’s case it went to ascertain the value of the evidence. It found that there are no reasonable grounds for ascertaining that prima facie the accusations are true.

Further, the PUCL press release asserts that the court’s application of the judgment of the division Bench of the High Court of Andhra Pradesh in Devendar Gupta versus National Investigating Agency (2014) is concerning.

The Supreme Court in Gurwinder Singh has applied Devender Gupta’s judgment in which it was held that the court must strike a balance between the mandate under Section 43D(5) on one hand and the rights of the accused on the other, particularly after the chargesheet is filed. The court had held that one of the ways balance is sought is by laying down factors which could constitute that a case is “prima facie true”.

The PUCL has commented that in the Gurwinder Singh case, these factors are not applied to the factual situation but to allegations.

Lastly, the PUCL has noted that Gurwinder Singh judgment goes against the judgment of Union of India versus K.A. Najeeb.

In K.A. Najeeb, the Supreme Court granted bail under the UAPA on the ground that the right to speedy trial is a fundamental right under Article 21 (protection of life and personal liberty) of the Constitution of India.

In Gurwinder Singh, the court did not apply the K.A. Najeeb reasoning. It stated that in the latter case, there was no possibility of the commencement of trial, in the former the trial was underway with 22 witnesses having been examined.

On this, the PUCL states that the court misses the wood for the trees as the ratio of K.A. Najeeb indicates that the bail embargo under Section 43D(5) does not “per se oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution”.

The PUCL concludes that the Gurwinder Singh judgment joins the sad list of precedents which besmirch the reputation of what has been called the world’s most powerful constitutional court.

It says: “One hopes against hope that the court rediscovers its role as a constitutional court and begins to apply constitutional principles in its interpretation of the UAPA and tempers the rigour of the law with a constitutional logic.

A 2022 PUCL report on the UAPA had revealed that the conviction rate in UAPA cases is less than 3 percent of all those arrested, and the use of UAPA is shown to be clearly targeting dissenters and people asking questions of the State.

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