SC Says Delhi HC's UAPA Bail Order Won't Have Precedent Value, but Protects Activists' Freedom

As the Supreme Court’s vacation bench posts the Delhi police’s appeal for hearing in July, a look at what the precedents say.

The Supreme Court’s vacation bench comprising Justices Hemant Gupta and V. Ramasubramanian briefly heard on Friday the Delhi Police’s appeal against the Delhi high court’s landmark judgment on Tuesday granting bail to three activists – Devangana Kalita, Natasha Narwal and Asif Iqbal Tanha – who were held under the Unlawful Activities (Prevention) Act (UAPA) in connection with the 2020 Delhi riots.

Both the Delhi police – represented by the solicitor general Tushar Mehta and additional solicitor general Aman Lekhi – and the respondents – represented by senior advocate Kapil Sibal – agreed before the bench that the impugned judgments shall have no precedent value till the appeal is heard and is decided by the Supreme Court. They also agreed that the three activist respondents released on bail need not surrender in the meantime.

The hearing – held virtually – was marked by high drama with Mehta seeking a ‘stay’ on the judgment without insisting on the surrender of the activists, as in his view, the Delhi high court, in its three judgments on Tuesday, turned the entire UAPA and the constitution on their heads. The bench, as if it agreed with Mehta, observed: “The issue is important. It has pan-India ramifications. We would like to issue notice.”

Mehta argued that the judgments virtually meant acquittal for the accused. “The high court has held that unless UAPA is read in a particular manner, it can’t be legal. Many accused are moving for bail relying on this. The accused had run a worldwide campaign using the visit of the president of the United States of America to India”.

Stay is absolutely imperative, submitted Lekhi, who argued that the high court had used the ambiguity in Section 15 of UAPA and substituted its view for the text, with regard to the definition of a terrorist act.

Mehta continued saying 53 persons died, including many police officers, and 700 suffered injuries, yet the high court says eventually the riots were controlled; so UAPA will not apply. “If some bombs are planted, and defused, will the intensity of the crime be less?” he asked the bench. Reiterating his plea for stay, he asked whether the right to protest would include the right to kill people, and plant bombs. Sibal intervened asking who planted the bombs, not the accused, who have been released on bail. Mehta said that even the lady who assassinated the former prime minister Rajiv Gandhi was protesting too, if the high court judgments are any guide.

Reading excerpts from the judgments wherein the high court explained that parliament’s competence to enact UAPA was drawn from the Union list of the Seventh Schedule, Mehta asked whether the use of UAPA is unconstitutional, except during war. “Will UAPA not apply even if I am a terrorist, if I kill someone? The high court read it down,” he told the bench.

The bench agreed that many questions arise from the judgments and that the high court was not dealing with the legality of UAPA. The bench clarified that the judgments will not be relied upon by any party. When Sibal questioned the maintainability of the special leave petition, filed by a deputy commissioner of police, the bench said the issue will be examined later. It directed the issue of notice to the parties in two weeks, filing of counter-affidavits within four weeks, and listing of the matter in the week beginning July 19.

When the bench suggested the addition of words “subject to final outcome” to its direction, “release of respondents on bail is not interfered at this stage”, Sibal objected to it. The bench then agreed to change the word “outcome” with “order”, agreeing with Sibal that it is obvious.

The bench refused to stay the judgments, saying if they do not have precedent value, it is good enough.

It was expected that the Centre would seek a stay on the judgments, because other accused, also held under UAPA and denied bail by the courts, were likely to approach the appellate courts – citing the Delhi high court’s Tuesday judgments – for relief. By seeking a stay on the judgments, the Centre, through the Delhi Police, may be trying to avoid a possible embarrassment of having to release several activists who were held under UAPA, mainly to curb political dissent.

Student activists Natasha Narwal and Devangana Kalita outside Tihar prison, after a court ordered their immediate release in the north-east Delhi riots conspiracy case, in New Delhi, June 17, 2021. Photo: PTI/Kamal Singh

Legal precedents

By holding that the high court judgments granting bail to the activists will have no value as precedents, the vacation bench of the Supreme Court appears to have gone against the ruling of another bench of the court recently.

On April 14, the Supreme Court bench of Justices D.Y. Chandrachud and M.R. Shah, deprecated the practice of passing orders suffixed with the caveat that the said order is not to be treated as a precedent on the ground of parity, especially in criminal matters. “It indicates a lack of confidence in one’s own order. My decision is my decision. Saying that it is not to be considered as a precedent shows a lack of moral conviction in one’s own viewpoint. If I feel that an order is vulnerable, I should not pass it at all,” remarked Justice Chandrachud. He added, “Also, it is for the other judge (who is likely to hear a similar matter) to decide if it can be treated as a precedent or not.”

On Friday, the vacation bench of the Supreme Court appeared to speak on behalf of all other high court judges (who are likely to hear similar matters) to decide that the Delhi high court judgments on UAPA will have no precedent value. It is debatable whether the Supreme Court order is persuasive in saying that the activists, released on bail, need not surrender, but the basis of their release – the judgments – will not be considered as precedents for similar cases elsewhere.

Surely, if the Supreme Court’s vacation bench prima facie considered that the Delhi high court’s judgments on UAPA are vulnerable, and therefore deprived them of precedential value, how could the bail orders which were based on those judgments survive? Based on Justice Chandrachud’s reasoning, one is tempted to ask whether the Supreme Court’s vacation bench lacks confidence in its own order.

That apart, it won’t be easy for the Supreme Court to allow the appeal against the Delhi high court’s Tuesday judgments granting bail to the activists, much less grant a stay on them, pending the hearing of the appeals after the vacation.

It is because the Supreme Court has restrained itself in several cases from interfering with the grant of bail by lower courts except on certain specified grounds, such as non-application of mind by the judges granting bail, reliance on extraneous grounds, and absence of enunciation of reasons for grant of bail.   The Supreme Court may also be compelled to interfere if the high courts granting bail in certain cases exceed their ambit, and do not confine themselves to the cases being dealt with. The Delhi high court bench of Justices Siddharth Mridul and Anup Jairam Bhambhani, which delivered the landmark judgments on Tuesday, can hardly be faulted on any of these grounds.

It is possible that the Delhi Police will rely for support on the Supreme Court’s judgment in Sangitaben Shaileshbhai Datanta vs State of Gujarat (2018), wherein the court held as follows:

“While adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court.  However, the court has to only opine as to whether there is prima facie case against the accused.  The court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case.”

In that case, the high court ordered the accused and their relatives to undergo a scientific test, lie detector, brain mapping and narco-analysis, after the grant of bail. The Supreme Court held that the direction of the court to carry out such tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements. The Supreme Court held that by ordering the tests and venturing into the reports of the same with meticulous details, the high court has converted the adjudication of a bail matter to that of a mini-trial indeed. This assumption of the function of a trial court by the high court is deprecated, the Supreme Court held in that case.

The above order can hardly be of any assistance to the Delhi Police in challenging the Tuesday verdicts of the Delhi high court.

In RBI vs General Manager, Cooperative Bank Deposit A/c HR.Sha and Others, (2010), the high court issued directions that the bank should start distributing the amount which was so far recovered by them from the accused. The bank was directed to furnish details of the money paid to the poor depositors.  The Supreme Court held that the far-reaching consequences of the directions of the high court are in a way beyond the scope of an application for bail filed by the accused. The high court, as much as anyone else, must stay confined to the issues relevant to the matter before it, the Supreme Court held.

In State vs M.Murugesan and Others (decided by Justice Hemant Gupta on January 15 last year), the Tamil Nadu government was aggrieved against an order passed by the Madras high court constituting a heterogeneous committee of named persons to give its recommendations on the reforms that can be brought into practice for reformation, rehabilitation and reintegration of the convict/accused person to society and best practices for improving the quality of investigation. Such directions came to be passed in a matter pertaining to grant of bail under section 439 of the CrPC. The high court had admitted the accused to bail, but passed an order to call for the details of the cases registered by the police, the final report filed, the trial conducted and the result of such cases. The details were to bring to light the manner in which the entire criminal justice system is operating in the state. Justice Hemant Gupta found the order passed by the high court not sustainable in law and set it aside.

It is clear that none of these cases can be of any assistance to the Delhi police. The Delhi high court’s division bench on Tuesday stuck to the facts of the cases before them and resisted any temptation to exceed the ambit, despite its articulation of concerns that UAPA is being misused by an insecure state against political dissent.

The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified.

The Delhi high court. Photo: PTI

In Neeru Yadav vs State of UP (2014), the accused was granted bail by the Allahabad high court (Mitthan Yadav vs State of UP). In an appeal against the order of the high court, a two-judge bench of the Supreme Court surveyed the precedent on the principles that guide the grant of bail. Justice Dipak Misra held in Neeru Yadav vs State of UP thus:

“If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of, or bail is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail.”

In Mahipal vs Rajesh Kumar alias Polia (2020), the Supreme Court outlined the standards governing the setting aside of bail by this court in the following terms:

“Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record.”

These two standards were reiterated in a recent decision of the Supreme Court in Prabhakar Tewari vs State of UP (2020).

The Supreme Court held that the grant of bail by the high court can be set aside consistent with the precedents when such grant is based on non-application of mind or is innocent of the relevant factors for such grant.

In Ramesh Bhavan Rathod vs Vishanbhai Hirabhai Makwana Makwana (Koli) and Others, decided by a bench of Justices Chandrachud and Shah on April 20, 2021, the former held that the high court orders granting bail to the six accused in the case suffer from a clear perversity, and set them aside.

In Sonu v Sonu Yadav and Others, Justice Chandrachud held on April 5, 2021 thus:

“In view of Section 304-B of IPC and the presumption under section 113-B of the Evidence Act, the high court was clearly not justified in granting bail. The order of the high court granting bail contains absolutely no reasons at all. While it is true that at the time of considering an application for bail the high court would not be required to launch into a detailed enquiry into the facts which have to be determined in the course of trial; equally an application of mind by the high court to the rival submissions is necessary. The high court has merely recorded the submissions and in the extract which we have reproduced earlier proceeded to grant bail without any evaluation of the rival submissions.”

In Brij Nandan Jaiswal vs Munna alias Munna Jaiswal, (2008) the Supreme Court observed thus:

“We find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious cases like murder, some reasons justifying the grant are necessary.

The high court cannot be oblivious of the seriousness of the alleged offence, where a woman has met an unnatural end within a year of marriage….An order without reasons is fundamentally contrary to the norms which guide the judicial process. The administration of criminal justice by the high court cannot be reduced to a mantra containing a recitation of general observations….  While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind.”

It is expected that once the discretion is exercised by the high court on relevant considerations and bail is granted, the Supreme court would normally not interfere with such discretion unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such discretion are ignored or bypassed. There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. These include whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence.

It is clear that there are no such cogent and overwhelming circumstances in the Delhi high court’s judgments on Tuesday which warrant interference by the Supreme Court in the grant of bail to the student activists.

Supreme Court of India. Photo: Pinakpani/CC BY-SA 4.0

NDPS and UAPA compared

The Delhi police may also cite the Supreme Court’s judgment in State of Kerala vs Rajesh, decided on January 24 last year by a bench of Justices Indu Malhotra and Ajay Rastogi. In this case, Justice Rastogi, who authored the judgment, observed that Section 37 of the NDPS Act, which says that persons accused of offences under the Act should not be released on bail during trial unless the mandatory conditions are satisfied, was in issue. These conditions are: 1) there are reasonable grounds for believing that the accused is not guilty of such offence; and that 2) he is not likely to commit any offence while on bail.

The Supreme Court held in this case that the expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The existence of facts and circumstances sufficient in themselves to justify satisfaction that the accused is not guilty must be noted by the judge granting bail, the bench held.

“The liberal approach in the matter of bail under the NDPS Act is not called for. The high court judge also failed to record a finding mandated under section 37 of the Act which is a sine qua non for granting bail to the accused under the Act,” Justice Rastogi said.

Section 43D(5) of UAPA, which is similar to Section 37 of the NDPS Act, is worded thus: “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”.

Thus, while the NDPS Act requires the judge to find reasonable grounds to suggest that the accused is not guilty to grant bail, the similar provision under UAPA requires the judge to reach a conclusion of the accused being prima facie guilty, in order to deny bail. Under NDPS Act, the burden is on the accused to satisfy the judge that there are reasonable grounds to show that he is not guilty so as to merit bail, whereas, under UAPA, it is the prosecution which has to satisfy the judge that the accused is prima facie guilty (the UAPA uses the words “reasonable grounds” and “prima facie” together in the same sentence), in order to deny him or her bail.

For the accused to rebut the allegation of being guilty before the trial starts is a challenge, because the bail granting court is not expected to examine the facts of the case in great detail like the trial court.  Therefore, Justice Ajay Rastogi’s judgment, which applies to cases under NDPS Act, cannot be of any assistance to cases under UAPA. Besides, the Delhi high court’s elaborate recording of reasons for its inability to find that the accused are prima facie guilty under UAPA in order to deny them bail, sets it apart from the NDPS case decided by the Supreme Court.