Source: Indian Express

Introduction

The recent denial of bail in the case of Gurwinder Singh v. State of Punjab (2024), an accused in an alleged "Khalistan module," by the Supreme Court raises concerns over application of Unlawful Activities Prevention Act, 1967 (UAPA). Despite the familiar adage that 'bail is the rule, jail is the exception’, the stringent provisions of the UAPA often lead to a different reality.

What is Section 43D (5) of the UAPA?

• Section 43D (5) of the UAPA lays down the foundation for bail proceedings, delineating stringent conditions for release.
• Under this provision, an accused facing charges punishable under Chapters IV and VI of the UAPA must prove to the court, based solely on police documentation, that the accusations are not prima facie true.
• This legal framework effectively shifts the burden of proof onto the accused, contravening the fundamental presumption of innocence.

What is the Summary of Gurwinder Singh v. State of Punjab (2023) Case?

• Facts:
  • There was information received that few people are hanging cloth banners on which “Khalistan Jindabad” and “Khalistan Referendum 2020” were written, at Pillars Kot Mit Singh Flyover, Amritsar.
  • Police arrested the accused for charges under UAPA and Indian Penal Code, 1860 (IPC).
• Transfer of Investigation to NIA:
  • Due to degree of severity in the charges involved, the investigation in the present matter was transferred to the National Investigation Agency (NIA), which took over the investigation of this case as per the directions of Government of India, Ministry of Home Affairs.
• Findings of Investigation:
  • The investigation revealed that the accused persons received funds through illegal means sent by members of the banned terrorist organization “Sikhs For Justice”.
  • Those funds were channeled through illegal means such as “Hawala” and were sent to be used for furthering separatist ideology of demanding a separate State for Sikhs popularly called “Khalistan”, and to carry out terror activities and other preparatory acts i.e., attempts to procure weapons to spread terror in India in furtherance of such separatist movement.
• Rejection of Bail:
  • Both the Trial Court and High Court rejected the bail application of the accused.
• Judgment:
  • The Supreme Court said that the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice.
  • Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail.

What are the Impacts of Judicial Precedents?

• 2019 Judgment:
  • The NIA v. Zahoor Ahmad Shah Watali (2019) set a precedent whereby courts are constrained from critically examining the prosecution's evidence during bail proceedings under the UAPA.
  • The Supreme Court said that “At the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities”.
• 2023 Judgment:
  • However, Vernon v. State of Maharashtra and Anr. (2023) introduced a nuanced approach, emphasizing the need for a surface-level analysis of evidence before determining bail eligibility.
  • The Supreme Court held that, “ It would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth”.
• Complexity:
  • This disparity in judicial interpretation highlights the complexities inherent in UAPA bail jurisprudence.

What are Concerns and Controversies?

• The denial of bail under the UAPA raises profound concerns regarding individual liberties and the balance between security imperatives and constitutional rights.
• While the UAPA seeks to combat terrorism and preserve national security, the erosion of due process rights and the presumption of innocence undermines the very fabric of democracy.
• The precarious tension between security imperatives and civil liberties necessitates a nuanced and balanced approach from the judiciary.

What are the Decisions of High Courts in UAPA?

• Despite the formidable hurdles posed by the UAPA, courts have, on occasion, granted bail in high-profile cases.
• The Delhi High Court's decision to grant bail to student activists involved in anti-CAA protests and the Bombay High Court's ruling in favor of Dalit rights activist in NIA v. Dr. Anand Teltumbde (2022) underscore the judiciary's capacity for judicial discretion and empathy amidst legal uncertainty.
• These rulings offer a glimmer of hope amidst the prevailing atmosphere of legal ambiguity and constraint.

Conclusion

The denial of bail to Gurwinder Singh underscores the urgent need for judicial introspection and reform within the realm of UAPA jurisprudence to get a uniform manner. As disparate judicial interpretations continue to shape the contours of bail proceedings, there is a pressing need for clarity, consistency, and adherence to constitutional principles.