Continuing from my previous post, it is high time that the case of Kartar Singh v. State of Punjab, (1994) 3 SCC 569, be revisited by the Supreme Court. This I say, in light of the recent amendments to the Unlawful Activities and Prevention Act (UAPA). The Constitutionality of the most anti- terrorist laws is settled by the ratio in Kartar Singh’s case and when a change is made to these laws that wasn’t brought up in that case, the new principle of law cannot bask under its legality. In this post, I propose to examine the Constitutionality of the provisions of bail with regard to what was contented in Kartar Singh v. Union of India regarding bail.

In Kartar Singh’s case, the challenge to the provisions of bail was brought about by two main provisions; first the denial of anticipatory bail under S 438 of the CrPC by the addition of s. 20(7) of the TADA, 1985. The second was the induction of s. 20(8) that severely restricted the conditions of bail and stated;

“(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.”

This is totally different from completely denying bail to a foreigner till the time of his trial under the new amendment to the UAPA. The Amendment states that no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.

While numerous judgments were cited to explain the provision of anticipatory bail and the right to bail in India. As regards the non-applicability of s 438 CrPC, the Court declared it constitutional with its reasoning based on the lines below;

“para 328 – where a person accused of a non-bailable offence is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail?”

Coming to the more important aspect of severely restricting the conditions of bail, it was contented by the petitioners that that this subsection infringed the underlying principle of Articles 21 and 14 of the Constitution as the is made it impossible for even an innocent person to get bail when he is falsely charged with an offence under the TADA Act. Stating that it is a a salutary principle of criminal justice is that every person is presumed to be innocent till he is proved to be guilty, this provision under challenge goes diametrically contrary to that principle. Reliance was placed by the petitioners (para 339) on Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, wherein Krishna Iyer, J. has commenced his judgment with a prefatory note reading,

“‘Bail or jail?’ at the pretrial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion” and observed,

“The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19”

The Crux of the argument by Ram Jethmalani and VM Tarkunde in this case was the there is a constitutionally guaranteed right to bail that has been held to be entrenched in Article 21 and restricting it to conditions other than that mentioned in s. 437 of the CrPC are violative of the right. The State placed reliance on the fact that there was sufficient ratio to state that the right to bail has at its core the idea of protection of the public and justice concerns. Added to this he brought in the idea of community justice which the Court relying on held’

“para 351 – No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not loose faith in the system of judicial administration and indulge in private retribution.”

The Court in this case finally held that the right to bail was not totally denied to the accused but that only its conditions were limited by a special law. Based on the fact that it wasn’t totally denied, the above provisions were held constitutional in the case. The same reasoning was used by the Court while deciding the Constitutionality of the POTA in PUCL v. Union of India. The Court also held that irrespective of such limitations, the accused may approach the High Court under Article 226 to consider his application of bail. (Usmanbhai Dawoodbhai Memon v. State of Gujarat, (1988) 2 SCC 271)

If this were the ultimate reasoning of the Court, then today when the Amendment completely denies bail to any foreigner, surely this provision must be in violation of the Constitution. Even if it is not in violation of the Constitution, inter alia, its constitutionality cannot rest on the ratio in Karat Singh’s case because that decision did not contemplate this factual situation. Worse, that if this not be addressed now, then the silence would be taken to mean that it is constitutional which may not be the case. It is sad that the constitutionality of a statute is decided in the garb of terrorism and not the rights enshrined in the Constitution. Time and again in Kartar Singh’s case reference is made as to the supremacy of community interest over the rights of a ‘terrorist’ and that the criterion of legality rests on it. This should not be the way the law works.