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'Bail an Exception, Jail Is Rule in UAPA Cases': How the SC Went Against Its Own Dictum

Government data revealed in 2022 that 97.5% of people arrested under the anti-terror law – which makes obtaining bail virtually impossible – have been imprisoned for multiple years while waiting for trial. 

New Delhi: The Supreme Court has espoused that bail is an exception and jail is the rule under the Unlawful Activities (Prevention) Act.

A bench of Justices M.M. Sundresh and Aravind Kumar, on February 8, denied bail to a man accused of promoting the Khalistani movement, according to LiveLaw.

‘Process is punishment’

The bench said that mere delay of trial is not adequate grounds to grant bail.

The Wire had reported in 2022 on how figures released by the Union home ministry in the Rajya Sabha backed up the belief that the ‘process is the punishment’ when cases are registered under the UAPA. Government data revealed that 97.5% of people arrested under the anti-terror law – which makes obtaining bail virtually impossible – have been imprisoned for multiple years while waiting for trial.

A case in point is student leader Umar Khalid, arrested in September 2020 under the UAPA. His bail hearing in the Supreme Court has been delayed for the 14th time during his four-year-long imprisonment.

Going against what the apex court itself has termed as a norm of ‘bail, not jail,’ the bench said on February 8 in a judgment authored by Justice Kumar:

“The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase – ‘bail is the rule, jail is the exception’ – unless circumstances justify otherwise – does not find any place while dealing with bail applications under UAP Act. The ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)– ‘shall not be released’ in contrast with the form of the words as found in Section 437(1) CrPC – ‘may be released’ – suggests the intention of the Legislature to make bail, the exception and jail, the rule”.

‘Bail, not jail’

The Supreme Court has often highlighted that bail should be the rule and jail an exception. The principle was first laid down by the apex court during the landmark judgment in the State of Rajasthan V. Balchand alias Baliay case in 1978 ,when Justice V.R. Krishna Iyer had said, “The basic rule may perhaps be tersely put as ‘bail, not jail’.”

The Justice Sundresh and Kumar bench, however, said that if a court arrives at a conclusion after hearing a public prosecutor and looking at the case diary that there are grounds to believe that the accusations against an accused are prima facie true, the “bail must be rejected as a rule.”

“It is only if the test for rejection of bail is not satisfied – that the Courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence),” Justice Kumar said.

While obtaining bail is nearly impossible when a person is arrested under the UAPA, in a 2022 article, legal scholar Gautam Bhatia had referred to an innate inconsistency in bail judgments under UAPA within the same apex court.