The basic rule of bail and Zargar’s case: Stretching law & facts thin

The author here examines the fundamental principles of the law of bail. In doing so, he analyses the Sessions Court order that denied Safoora Zargar bail as per legal principles and text of UAPA. He notes the court’s abdication of established principles of law and argues for the adoption of humanitarian principles in granting bail. 

Zargar addressing students at the protest site outside Jamia Milia Islamia

The word “bail” is derived from the old French verb baillier, which means to give or deliver. The word is also related to the Latin word bajulare meaning to bear a burden. The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England. In medieval England, the custom grew out of the need to free untied prisoners from disease-ridden jails while they were waiting for their delayed trials to be conducted.

Bail under the English common law concerned itself with values of personal freedom and security of the politico-legal system. The Magna Carta of 1215 said that no man could be taken or imprisoned without being judged by his peers or the law of the land. Then in 1275, the Statute of Westminster was enacted which divided offences as bailable and non-bailable. In 1677, the Habeas Corpus Act was added to the right of the petition of 1628, which gave the right to the defendant to be told of the charges against him, the right to know if the charges against him were bailable or not.

Indian Courts and Bail Jurisprudence

The Supreme Court in the case of Kamlapati v. State of West Bengal, defines bail as “a technique which is evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a person’s release is conditioned on the surety to produce the accused person in the Court to stand the trial.” In State of Rajasthan v. Balchand, the Supreme Court laid down that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or repeating offences or intimidating witnesses and the like.

In Rajender Singh Sethia v. State, it was held that personal liberty as guaranteed under the Constitution must be harmonized with considerations under ordinary law. In matters eating into the very vitals of the society, the issue is always resolved by reference to what is in the interest of society and what is against it. The ultimate decision in matters of bail is always taken on the circumstances and facts of each case. It is for this reason that the discretion is vested in courts in matters of bail and has always been considered a great trust. This discretion has to be exercised judicially with all the concern to the facts of a particular case and the circumstances.

Though it is correct that detailed examination of the merits of the case is not required while considering a bail application, at the same time the exercise of discretion has to be based on well-settled principles and in a judicious manner. In Prahlad Singh Bhati v. NCT, Delhi, the Apex Court laid down well-settled principles having regard to the circumstances of each case. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the character and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the accused’s presence at the trial, and similar other considerations.

“Discretion” of a court of justice means “sound discretion guided by law”. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful. The Judge’s discretion must be exercised in accordance with established principles of law. The court in State v. Veerapandy stated that if a prima facie case has been made out by the prosecution and if there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail pending disposal of the case; unless extraordinary circumstances intervene favouring the accused.

Construing Inflammatory Speech in Denying Safoora Bail

Delhi’s Patiala house court on 4th June, 2020 denied bail to 27-year-old Safoora Zargar. The research scholar from Jamia Millia Islamia is currently in judicial custody in connection with her alleged role in the Delhi riots conspiracy case. Safoora has been booked under Sections of IPC and UAPA. Advocate Gautam Bhatia points out that the lynchpin of the Order is a prima facie finding of a “conspiracy” to “block a road.” This conspiracy rose to an “unprecedented level” although we are not told how. But the fact that the accused is also  prima facie one of the conspirators, meant that ipso facto the “acts and inflammatory speeches” (we are not told which) were attributable to her. It should be immediately clear that such an approach casts the net of criminality so wide, that just about anyone can be brought within its ambit.

The Supreme Court held in S. Rangarajan, the proximity between speech and consequence needs to be like that of a “spark in a powder keg” for criminality to be imposed. Now, the image of a “spark in a powder keg” suggests a relationship of immediacy and inevitability. The metaphor chosen by the Sessions Court in denying Safoora bail – that of playing with embers that the wind then carries– is the exact opposite of a “spark in a powder keg”. The wind can carry embers as far, and in any direction, that the State or the judge might please. What this effectively does is do away with any causal requirement between speech-act and consequence whereby anything can be criminalised, taking us directly into the territory of thought-crimes.

A reading of the Order, therefore, makes it clear that insofar as both the law and the facts stood in favour of bail, the Court got around the first barrier by replacing legal doctrine with a metaphor of its own invention. It then vaulted the second barrier by replacing facts with a set of adjectives- such as “unprecedented scale” and “inflammatory speeches”- that spared it the necessity of an explanation. In this way, the law was stretched from one side, and the facts from the other, and they met in the middle to make out a prima facie UAPA case. This prima facie case was then used to justify keeping a pregnant woman in an overcrowded prison in the middle of a nationwide pandemic.

 Bail Under UAPA

The Sessions Court order argues that due to the embargo created under Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 the Court cannot grant bail. It is a clear matter of legal precinct that while Section 43-D (5), UAPA does create a restriction in attainment of bail, but it does not put an absolute bar. Firstly, UAPA concerns itself with unlawful activity and “Unlawful activity” in itself is very vague. Secondly, Section 43-D (5), UAPA states- “Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release…….”

The bare texts of the provision under Section 43-D (5), UAPA concerns Chapters 4 and 6 and is not applied in every case brought under UAPA charges. Chapters 4 and 6 deal specifically deal with “terrorist acts” and “membership with the terrorist organization” respectively. Thus there must be prima facie evidence of the accused(s) either to have committed terrorist attack or to have been part of some terrorist organization. In the order, the judge has dealt with Safoora’s actions as that of commission of an unlawful activity. Even if we go by the judge’s understanding and deem her acts as unlawful activity, then also Unlawful activity falls under Chapter 3 of UAPA. It is protected from the embargo of Section 43-d (5), UAPA, which is applicable to Chapters 4 and 6 only. Thus, the order of bail denial is not at all justified.

Bail on Humanitarian Grounds

The aim of arresting a person accused of having committed a crime is to ensure that he/she does not escape the rigours of law, when proved guilty or that the accused person does not tamper with the prosecution evidence. Safoora Zargar’s lawyers appealed for bail on humanitarian grounds, given that she is 21 weeks pregnant and reportedly suffering from PolyCystic Ovarian Disorder. They told the court that her condition had become all the more vulnerable because of the COVID-19 crisis and pointed out that inmates in all three of Delhi’s jails had contracted the coronavirus infection.

While dealing with the issue of grant of bail in non-bailable offences, it has been held that a person is entitled to his liberty even in case he/ she is accused of a Non-Bailable offence and the right of an accused person should not be dealt with by a court in a superficial manner. There have been cases where the person accused of having committed a grave offence under Section 307 of IPC is enlarged on Bail owing to ill-health. In Ratan Singh Nihal Singh & Ors v. The Stateit has also been the opinion of courts that since right to liberty is an imperative right of a person, an application seeking Bail should not be decided in a mechanical and perfunctory manner.

While dismissing her bail plea, the judge asked the concerned jail superintendent to provide adequate medical aid and assistance to the accused. But the reality of the jail conditions is miserable and is not hidden from anyone. It has been held by various courts that releasing a woman accused of having committed a Non-Bailable offence on special grounds is not discriminatory. In the matter of Mst. Chokhi v. State, a woman accused of committing murder of her one child was released on bail as there was no one to look after her other child at home. Further, it has been the opinion of courts at large that where the prosecution is unable to persuade the court that there is any reasonable ground for believing that the accused person is guilty of commission of a Non-Bailable offence, in such case the accused person should be released on Bail.

Article 21 of the Constitution has been liberally interpreted to mean something more than merely human existence and includes the right to live with dignity and decency. In India, the judiciary has played a major role in recognizing the right to health as a part of Article 21 of Chapter III which deals with the fundamental rights guaranteed under the Constitution of India. State has been directed to provide the highest attainable health standards to its citizens towards the fulfilment of international standards. Thus, the denial of bail to Safoora Zargar was not just legally and factually miscalculated, but also abnegates the humanitarian spirit that every person is presupposed to carry in terms of his/her dignified and healthy right to life.

First published in The Leaflet.
Kumail Haider is a final year law student at Aligarh Muslim University.
Disclaimer: The views expressed in this article are the writer's own, and do not necessarily represent the views of the Indian Writers' Forum.