The recent judgment of the Hon’ble Supreme Court, refusing to grant bail to Sharjeel Imam and Umar Khalid who are accused in Delhi riots, charge-sheeted under various provisions of Unlawful Activities (Prevention) Act, 1967 holding them to be masterminds behind the crime, while granting bail to other accused, has evoked mixed reactions in the legal circle. But, the judgment has its own ups and downs since it emphasises the need to adjudge the role of the accused, seeking bail, neither in a perfunctory nor adjudicatory manner. The judgment has scored its maximum while it has permitted the courts at the trial level to analyse in order to evaluate the role of an accused qua the essential ingredients of the offence alleged against him, which will go down in the history as a landmark verdict enabling the demolition of the paradox which existed hitherto that once charged under the draconian provisions of legislation Unlawful Activities (Prevention) Act, 1967, would be a permanent shackle to the freedom of an individual, denying him the right to liberty guaranteed under the Constitution, which is otherwise available to him.
Though the need to harp on the essential finding that the charge-sheet allegations are “not prima facie true” to admit a person accused of “terrorist activities” and the like, to bail, has not been undermined, the Hon’ble Supreme Court has now drawn, in this judgment, a demonstrable line which defines the “all important” terminology of “not prima facie true”, appearing in Section 43 (D) 5 of the Unlawful Activities Prevention Act, and this would enable the courts to draw a distinction between the real perpetrators of the crime and the sideline offenders – much to the benefit of not so prominent or prime suspects tagged along with the main accused. The Court ruled to analyse the allegations qua individual accused to arrive at the conclusion as to the application of the terminology “prima facie true” against them, albeit not by conducting a mini trial.
The broad application of the embargo placed under the Act against the grant of bail and the analysis pertaining to the impact of the ingredients of the offence, could be now on the basis of the following guidelines as held by the Apex Court in this judgment:
I.“Whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged; and
II. Whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activities or terrorist activities proscribed under the Act, as distinguished from mere association or peripheral presence; and
III. Whether the statutory threshold is crossed qua, the individual accused, without embarking upon an assessment reserved after full-fledged trial.”
Once these yardsticks are applied to individual offenders, the departure envisaged under the Unlawful Activities (Prevention) Act, with respect to the bail jurisdiction of the Court, would subsist or else the Courts would be empowered to enlarge the accused on bail “notwithstanding the embargo’” placed under the deviatory wisdom of the legislative. Such a freedom granted to the Court dealing with the bail applications of many accused who are languishing in jails or having taken to custody by the investigation agency as “sheep to slaughter” would be a silver lining in the otherwise murkier atmosphere now prevailing on account of the embargo placed under Section 43(D)5 of the Act.
The judgment has its own pitfalls while it foregoes certain realistic and constitutional setbacks. The main drawback, among the prominent, is the political persecution faced by a section of accused on account of the dissent expressed by them, which has escaped the notice of the Apex Court from being dealt with. The judgment, would therefore, be a shot in the arm of those who act arbitrarily to drag their political rivals into prison on false implication of ‘terrorist activities” or labelled with “main conspirators” thereof which would be sufficient enough for them to be locked perpetually in prison. The Constitutional guarantee envisaged under Article 19 of the Constitution of India for the fearless freedom of speech and expression would remain as a matter of concern, as always, threatened by the draconian legislations and its abuse at the hands of the tyrannical administration.
The Hon’bleSupreme Court ought to have broken this jinx to enable the citizens of this country to enjoy the fragrance of this freedom of speech and expression without any fear from the dictators of the administration or to sub-serve, the corrupt or partisan executives who are always hellbent to destroy the ethos of our Constitution.
Notwithstanding all its drawbacks, this judgment would open the floodgates of freedom for many under-trial prisoners to approach the courts of law and seek bail on a demonstration of the distinction from the main perpetrators of the crime to get the benefit of being enlarged on bail when charged under UA(P) Act.
[The write is a Senior Advocate, High Court of Karnataka]