Facts:
K.A. Najeeb was an active participant of the Popular Front of India, or PFI, which was an extremist Islamic organization, who had been arrested of being a conspirator in the attack committed upon on Prof. T. J. Joseph, a professor in Newman College, Thodupuzha. While making a question paper, the victim had put a question that was viewed as offensive as against a particular religion. With the aid of the Popular Front of India, or PFI, they decided to take revenge.
At around 8 a.m., on July 4, 2010, a group of individuals from the PFI attacked the victim while he was on his way home along with his sister and his mother. The victim’s vehicle was stopped, he was restrained and his right palm was chopped using a small axe, choppers and knives. There were country-made bombs, which were thrown on some onlookers so that they will not attempt to rescue the victim. The wife of the victim filed an FIR against the attackers.
On investigating, it was unearthed that the attack had been a part of a bigger conspiracy which necessitated a lot planning, usage of weapons and several failed trials. Ergo, UAPA was invoked against Najeeb. Even though many of the co-conspirators had been found to be liable by a special court of the NIA, the accused had adjudged to be an escapee. The other conspirators had been sentenced to punishment for ranging between 2 and 8 years of rigorous imprisonment. Najeeb was later found and had been arrested by NIA and sentenced to judicial custody for about 5 years, without being given the chance to be tried or any such legal assistance.
The defendant had to approach the competent court 6 times between 2015 and 2019 for being able to get bail, and had asked to be treated like the other co-conspirators who had been acquitted, or had been provided bail. The pleas of the accused had been discarded on the grounds that Najeeb was well aware of the attack and had helped in its successful conduction. This made Najeeb not being applicable to get bail as per Section 43D (5) of UAPA, since the normal bail procedures are inapplicable under UAPA, it permits the courts to reject the bail application on the grounds of reasonable doubt. Najeeb approached the High Court for the 3rd time, challenging the denial of bail by the Special Court.
With the help of an impugned order, the High Court had granted bail, considering that Najeeb was being kept in custody for a long duration, more specifically when there were less chances of him being tried in the coming future and going otherwise would harm Najeeb. The execution of the bail was, however, put on hold by the court and the NIA had appealed that the High Court had made an error and thus the case.
- Issues Raised:
- Whether or not Article 21 of the Indian Constitution when violated, can depose the statutory constraints as provided in Section 43D(5) of the UAPA?
- Whether or not the court is bound to reject the bail in cases where the suspect is prima facie believed to be liable?
- Whether the decision of the court to provide bail can be opposed without any special or specific basis?
- Contentions:
The person bringing the case argued that the mentioned rule gave unchecked power to the investigating agency to detain someone suspected of a PMLA offense for a long time without considering their right to parole. They claimed this rule was biased and went against the fundamental legal principle of fair treatment. The government, on the other side, argued that Section 45 of the PMLA was crucial to tackle the growing risks of money laundering and similar illegal activities involving money. They contended that the rights of the defendants were not getting violated at all due to their alignment with the goal of the PMLA to reduce the financial scams in the country.
The defendant had contended that this was more in alignment with the various other laws of the nations which have a rigid criterion of granting parole, such as the Unlawful Activities (Prevention) Act, as well as the Narcotic Drugs and Psychotropic Substances Act. Moreover, they held on to the argument that the present rule was in consonance with the national laws which have a comparatively high standard for approving the paroles. Furthermore, the central argument from the petitioner centred around Section 45, PMLA, which discredited the basic fairness, along with the right to ask for bail. The opponents had argued that this rule was cardinal to prevent the financial crimes and was not in violation of any of the constitutional rights of the person who was accused.
In this particular instance, the individual known as K.A. Najeeb has presented an objection to the constitutional legitimacy of Section 45 within the Prevention of Money Laundering Act, 2002 (PMLA). This specific portion concerns the granting of bail to individuals who have been accused of committing a violation under the previously mentioned Act. The petitioner’s main argument revolved around the claim that this specific section violated the core principles of fairness and encroached upon the constitutional entitlement to bail.
- Rationale:
The Apex Court had accepted the judgement of the High Court, while trying to balance the establishment of the allegations beyond reasonable doubt and the right of the appellant to lead the proof of his choosing, while at the same time, the rights of Najeeb as have been listed under Constitution’s Part III. Ergo, the Special Leave Petition that had been filed had been found to be unjustifiable. The Court had adjudicated that the since there were restrictions which had been imposed by the statute such as Section 43D (5) of the UAPA, do not take away the authority of the Constitutional Courts to provide bail on the basis that there was a violation of Part III of the Indian Constitution. Furthermore, the powers which rests with the Apex Court and the constraints imposed by the legislation under the jurisdiction of the Constitution can be harmonised easily.
While discussing about the nature of the crimes, the judges had taken into account the duration period for which the defendant had been kept under judicial custody, in spite of the fact that the accused was prima facie suspected of being liable. The judgement of the High Court of providing bail was valid, considering that there was an “unlikelihood of the trial being completed anytime soon”. It was stated in passing that Section 43D (5) of UAPA is less rigid when compared to Section 37 of NDPS Act. While under the NDPS Act, a court has to be satisfied with the fact that prima facie the defendant is not liable and there is a high chance that s/he will not commit any crimes when they are on bail, there are no such guidelines as per UAPA. Instead of that, Section 43D(5) of UAPA can be considered as a possible basis for the courts to reject the grant of bail.
There were certain conditions which had been imposed on Najeeb, keeping in mind the best for the entire society and to make sure that he did not take part in any other such activities. Najeeb had to report to the police station at 10 a.m. on Monday every week and had to provide written information that he is not party to the commission of any new offences. Moreover, Najeeb cannot take part in activities which may hurt the sentiments of any religion and lead to violence. Tampering with the evidence, becoming a hurdle in the trial, or violating the guidelines of the bail will result in the bail being categorically cancelled.
- Defects of law:
The current case underscores the operational dynamics of anti-terrorism organisations, the deliberate prolongation of investigations, and the judicial procedures that result in extended terms of incarceration for the accused. In the present case, Najeeb made six bail applications spanning a period of four years with the aim of seeking legal redress. The constitutional guarantee of the Right to Speedy Trial encompasses the investigative phase, necessitating future courts to consider the prevailing circumstances and expand the scope of judgement, as demonstrated in the current case.
The investigation authorities employ various strategies that result in a delay, and the current case serves as evidence of this phenomenon. The constitutional significance of the right to a speedy trial has become even more prominent when juxtaposed to the limitations imposed by statutes. Therefore, it is imperative for the judiciary to evaluate the measures that might effectively prevent the abuse of power under laws such as the Unlawful Activities (Prevention) Act (UAPA).
- Inference:
In the recent past, legislations like the POTA, TADA etc. have been censured and had been struck down for being “anti-people” and harsh. However, this has proven to be fruitless, since the anti-terror legislations, which are a successor of the old statutes contain the same verbatim provisos, but with a larger extent to which they can be exploited.
It can be seen in the present situation as to how the “threshold” that had been put forth as per this proviso is a lot lesser when compared to the archaic anti-terror legislations. The UAPA, which had been introduced in 1967 initially, had been incorporated to ease the pressures on the justice system of the nation, but was censured for its arbitrariness post the ameliorations which had been made to the Act. It is noteworthy that Section 43(D)(5) of UAPA is being scrutinized, since the NIA special courts can reject bail applications as per this section, if they think it is “necessary” to do so. The term “necessary”, however, has not been provided a definition by the judgement, or by the Act. Thus, this section can be abused. The rejection of the bail many times by the NIA special court, before the decision of the High Court came is also in plain sight.
As per data collected by the National Crime Records Bureau (NCRB), it is only 2.2% of the people who are arrested as per UAPA who are actually convicted. Thus, a question may arise on the long durations for which the accused may be held in custody. However, there is a clear network which can be established between the constitutional rights and the long custody. There is a clear violation of the constitutional rights of the accused in the present matter, since he had been kept in judicial custody for a period exceeding 5 years and had not been tried. This was seen by the Apex Court and thus the accused was given bail.
RIAN GUPTA
BENNETT UNIVERSITY