Introduction
Recently, an interim bail was granted to two accused in the 2020 Delhi riots case who were charged under the Unlawful Activities (Prevention) Act, 1967. This has once again raised a question whether prolonged incarceration and delay in trial can override the statutory laws, such as the UAPA. Bail is defined as the temporary release of a person from legal custody, accused or suspected of committing an offence. Even in the criminal justice system, individual liberty is given priority by the apex court. State of Rajasthan vs. Balchand @ Baliay (1977) is a landmark case where the Supreme Court of India established the foundational legal principle: "bail is the rule, jail is the exception." But when it comes to UAPA, procuring bail is too difficult.
Bail vs Acquittal
- Bail is different from acquittal. Bail is a temporary release from legal custody, while acquittal is proved innocence from the charges slapped on the accused.
- Bail can be given several times, but once an accused is acquitted, the same charges cannot be thrown at him in the same court.
- Bail is granted during investigation or trial, whereas acquittal comes after completion of the trial.
- During bail, the accused must appear before the court when required, while in acquittal, the accused is free from criminal charges in that case.
- Bail is based on the presumption of innocence and personal liberty, whereas acquittal is based on failure of prosecution to prove guilt beyond a reasonable doubt.
Why bail is denied
There are several factors why bail is denied to an accused. First and foremost, the reason is that the accused has committed a heinous crime such as murder, rape, etc. Bail is not given easily in such cases. The second reason is the fear that the accused will abscond, which will make the trial more delayed. Third is that the accused may threaten the witnesses by intimidating them. There is also a chance that the accused would reoffend when released from judicial custody.
Challenges in the Indian Bail System
Even though Indian courts consistently emphasise that “bail is the rule and jail is the exception,” the practical reality is often different. Many accused persons remain in prison for long periods before their guilt is even proved. A large number of prisoners in India are undertrials, meaning they have not yet been convicted. Many remain in jail only because their bail application is pending or rejected. This contributes to overcrowded prisons and creates poor living conditions, health risks, and pressure on prison administration. In some cases, arrests are made unnecessarily, even when detention is not required for investigation. Since an arrest often leads to custody, it increases the burden on courts and prisons. The Supreme Court has repeatedly warned against such arrests.
Section 43D of the UAPA
Section 43D of the UAPA makes securing bail difficult for the accused. This section permits the court to reject the bail of an accused under UAPA if it finds reasonable grounds for believing that the accusation against such a person is prima facie true. Supreme Court in National Investigation Agency vs Zahoor Ahmad Shah held that an elaborate examination of evidence was not necessary for the court to establish prima facie guilt. The court can rely on broad probabilities to decide that the allegations were true and deny bail. Usually, the law says one is innocent until proven guilty, but for an accused charged with UAPA, it is one is guilty until proven innocent.
Union of India vs K.A. Najeeb
In the Union of India vs K.A. Najeeb 2021 judgment, the Supreme Court held that an undertrial person cannot be made to indefinitely wait behind bars, however grave the offence may be. It was this judgment that empowered courts to sideline Section 43D(5) and grant bail to a UAPA accused who had already spent a substantial period of time in jail due to a delay in trial. It put forth that any statutory law is not above Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. The apex court pronounced that Section 43D(5) is misused by the state to punish people not aligning with the state's beliefs.
Conclusion
The conviction rate under UAPA is merely 2-6% across the country. It has been said by the apex court that bail cannot be denied solely on the ground that the charges are very serious. A fair trial is always the need of the hour, irrespective of the grievousness of the offence. This aligns with the principle of natural justice, and every healthy legal system in the world follows the same. The accused may be given relief to tackle emotional burnout after being behind bars for months. The social and financial impact of imprisonment adds up to this problem, which needs attention.
FAQs on “Bail Is the Rule, Jail Is the Exception”
1. What does the phrase “bail is the rule, jail is the exception” mean?
The phrase gives priority to personal liberty guaranteed under Article 21 and states that an accused must be behind bars only in cases where giving liberty harms the principle of justice.
2. What is UAPA?
Unlawful Activities (Prevention) Act, 1967 (UAPA) is an anti-terror law in India aimed at preventing unlawful and terrorist activities. It provides stricter provisions regarding arrest, investigation, and bail.
3. Is getting bail difficult under UAPA?
Yes, getting bail in UAPA is difficult when compared to other cases. Section 43D(5) prohibits or makes the bail difficult for an accused.
4. Does the principle “bail is the rule” still apply in UAPA cases?
Yes, bail is a rule in UAPA cases as well. The apex court has held that no statutory law can override Article 21 of the Indian Constitution.
5. Does granting bail mean the accused is innocent?
No, granting bail only releases a person temporarily from the trial, and the accused has to be present in the court whenever ordered.
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