Another reminder that bail is the rule

Last week’s Supreme Court judgement, which held that the normal judicial principle about bail is applicable even in the case of special statutes like the Unlawful Activities Prevention Act (UAPA), is a reassertion of the policy the court has followed in other recent cases. The judicial norm is that bail is the rule and jail is the exception. But law enforcement agencies have created the impression that the norm is not applicable to special statutes such as the UAPA and the Prevention of Money Laundering Act (PMLA).

The court has now made it clear that a stringent law is not an exception to the general rule about individual freedom. It granted bail to a man booked under UAPA on the charge that he was a member of a banned organisation. It said the courts should grant bail when the conditions laid down under the law are met, even when the allegations are serious.

The UAPA has been widely criticised for its draconian provisions, which are prone to misuse. Many people booked under the law have been languishing in jail without trial for long periods. The Union government amended the Act in 2019 to include a provision for designating an individual as a terrorist. Before that, only organisations could be given the ‘terrorist’ tag. After that, many persons were booked under it for allegedly aiding and abetting terrorism.

In 2019, the Supreme Court upheld the harsh provisions of the law, but subsequent judgements have made bail conditions more and more liberal. In a number of judgements, it said that the 2019 judgement would not apply to every case. In February, it held that the provisions of the law were “severely restrictive”. Last month, the court said: A Constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed.’’

In the latest case, granting bail to the accused, the apex court said there were no reasonable grounds to conclude that the charges were prima facie true. In another case, the court said bail could not be denied to a juvenile unless his release deferred the ends of justice. The progressive widening of the scope for bail is welcome as the process is becoming the punishment in many cases. It should also be noted that the conviction rate in UAPA cases is as low as 3 per cent. That again underlines the need to follow the usual bail norms even in the case of stringent laws.