Jail or Bail, which is the Exception? : The Repercussions of the Watali Judgement

Introduction

Prompting a relative sigh of relief after the series of notorious decisions surrounding the jurisprudence of the infamous UAPA law, in a recent decision of Sheikh Javed Iqbal v. State of Uttar Pradesh, the Supreme Court of India granted bail to an accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA), emphasising that the precedent established in the case of NIA v. Zahoor Ahmad Shah Watali should not be used as an automatic basis for denying bail in situations where the accused has faced prolonged incarceration.

Background

The UAPA stands as a reminder of how laws designed to protect national security can become instruments for suppressing dissent. The primary anti-terror law in India today, the Unlawful Activities Prevention Act (UAPA), was initially enacted in 1967 to address “unlawful activities.” Over time, however, it has morphed into a catalyst for targeting political dissenters and those challenging state policies, often with little regard for civil liberties. This transformation reflects an authoritarian impulse that jeopardises humanitarian and democratic rights, allowing the state to silence opponents and critics of the ruling establishment. The law's draconian provisions raise serious concerns about its misuse, emphasising the urgent need to balance national security with the protection of human rights.

Reversing the Burden of Proof

While Criminal Jurisprudence holds that “Bail is the rule, and Jail is the exception”, its application is sabotaged by the character of bail provisions under Anti-terror Laws. Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA) epitomises a troubling inversion of the foundational principle of presumption of innocence in criminal law and mandates that courts deny bail if there are reasonable grounds to believe the accusations against the accused are prima facie true. This shift places the onus on the accused to demonstrate that the allegations lack merit, undermining the fundamental right to a fair trial. The law effectively immunises the prosecution’s case from rigorous scrutiny, allowing potentially questionable evidence to dictate outcomes, not only violating the principle of equality of arms but also eroding civil liberties and prolonging the suffering of individuals caught in a protracted legal process. It fundamentally alters the balance of justice in favour of the state at the expense of individual rights.

The Watali Judgement

In the landmark case of NIA v. Zahoor Ahmad Shah Watali (2019), the Supreme Court overturned the High Court's bail decision, asserting that the latter had improperly conducted a mini-trial, which compromised the standards for bail under the UAPA. Watali, accused of financing terrorism, sought bail after being denied by lower courts. The Supreme Court ruled that under Section 43D(5) of the UAPA, a bail application should be denied if there are reasonable grounds to believe the accusations are prima facie true, emphasising that courts should not delve into detailed evidence at the bail stage, but rather rely on broad probabilities. While the Court’s reasoning aims to prevent premature judgments that could prejudice the trial, it ironically overlooks the need for a balanced approach that upholds the objective of an expedient trial.

The ruling creates a structural imbalance favouring the prosecution and undermines the principles of fair trial and individual liberty. This results in an erosion of the rights guaranteed under Article 21 of the Constitution, as it permits prolonged pretrial detention based on a mere prima facie assessment. The Court's insistence on viewing the prosecution's case without questioning its admissibility or relevance grants the state undue power, thereby enabling arbitrary detention. The Court’s failure to encourage a strong scrutiny of the prosecution’s claims allows law enforcement agencies to present potentially flawed or incomplete narratives without adequate challenge. The broader implications of this ruling suggest a troubling trend in judicial interpretation that prioritises state interests over individual freedoms, raising concerns about the future of due process in India. 

The Developing Bail Jurisprudence

The rulings in Gurwinder Singh v. State of Punjab, Union of India v. K.A. Najeeb, and Sheikh Javed Iqbal v. State of Uttar Pradesh, exemplifies a troubling inconsistency in judicial interpretation regarding bail under the UAPA. In Gurwinder Singh, the Supreme Court reaffirmed the restrictive bail standards set in Watali, emphasising that "jail is the rule, bail is the exception." This rigid stance starkly contrasts with the more lenient approach observed in K.A Najeeb, where the court recognised the excessive pretrial detention of an accused and granted bail, highlighting constitutional rights under Article 21. While K.A Najeeb emphasised the need to consider the accused's right to liberty and the implications of prolonged incarceration, Gurwinder Singh reaffirmed a restrictive stance that privileges the prosecution's narrative, effectively sidelining the presumption of innocence. 

Meanwhile, in the recent Sheikh Javed Iqbal, the court acknowledged prolonged incarceration yet fell back on the premise of Watali. The assertion that Watali cannot serve as a precedent for denying bail due to lengthy incarceration is misleading; rather, it highlights the rigidity of the earlier decision, which continues to influence bail determinations. The narrative of constitutionalism presented in Sheikh Javed Iqbal is thus paradoxical. While it attempts to invoke Article 21's protections after a significant period of pretrial detention, it paradoxically reinforces the very legal structures that lead to such prolonged incarceration in the first place. These fluctuations paint a picture of inconsistency in the manner and degree in how the judiciary balances individual liberties against state interests. 

Conclusion

This tension not only complicates the judicial landscape but illustrates a systemic failure to uphold the foundational tenets of justice, where the scale of justice continues to tilt overwhelmingly in favour of the state at the expense of the accused's rights. The court must move beyond this ad hoc approach to bail in UAPA cases and establish a more equitable standard that genuinely reflects the principles of justice and fair trial. A holistic reassessment of the UAPA and its implications on individual liberties is critical to creating a legal framework that does not merely react to threats but upholds the rights enshrined in our Constitution. Only by prioritising justice alongside security can we hope to uphold the foundational values of our democracy, ensuring that "bail" is not a privilege but a right guaranteed to all.