Legal Notes by Arvind Datar: Article 21 and the haunting words of Vivian Bose

Anwar Ali Sarkar and 49 others were part of an armed gang that raided the Jessop factory in Dum Dum, Calcutta. They were convicted and sentenced under the West Bengal Special Courts Act, 1950, which provided a special procedure to try certain classes of offences.

This special procedure enabled a faster trial, but denied the accused certain procedural safeguards that were otherwise available under the normal procedure applicable to criminal trials. The State government could pick and choose which case was to be sent to the special court and which to the regular trial court.

In the historic judgment in State of West Bengal v. Anwar Ali Sarkar (1952), the Supreme Court affirmed the quashing of the conviction of these persons by a Full Bench of the Calcutta High Court. It is important to note that the serious nature of the offence did not deter either the High Court or the Supreme Court from quashing the conviction and direct a fresh trial. Justice Vivian Bose, unlike the other judges, went ahead and struck down the entire Act in what is easily the most eloquent exposition of the scope of Article 14 and the importance of individual liberty. Indeed, his judgment, particularly the last passage, deserves to be read aloud on every Constitution Day.

Justice Bose pointed out that Article 21 and other fundamental rights were introduced in our Constitution as living flames to give life to a great nation with the potential to mould the future and guide the present. One must consider whether singling out certain cases and offences and visiting them with the most serious consequences is something that can be regarded as right and proper in a sovereign democratic/republic that is expected to protect and defend personal liberty. Justice must be satisfactorily done, not from the point of view of the governments who prosecute, but satisfactory in the view of the ordinary reasonable man, the man in the street.

Article 21 prohibits any person from being deprived of his life of personal liberty except according to procedure established by law. These rights were suspended during the Emergency. In the aftermath of the ADM Jabalpur judgment, the Constitution (Forty-fourth Amendment) Act, 1978, amended Article 359 and provided that the fundamental rights under Articles 20 and 21 could not be suspended even during an Emergency.

It is paradoxical that while the Constitution places Article 21 on a higher pedestal than the other fundamental rights, in reality, this right becomes illusionary and a mirage due to draconian laws which make it virtually impossible to obtain bail. One such Act is the Unlawful Activities (Prevention) Act, 1967 (UAPA). Its provisions were recently considered in Gulfisha Fatima v. State (Government of NCT and Delhi), wherein five accused were granted bail and two were not. This article is confined to the scope of Section 43D(5) as discussed in the judgment. The issue of delay will be considered later.

Section 43D(5) prohibits a person accused of a terrorist activity or members of a terrorist organisation from being granted bail if, inter alia, the court is satisfied that the accusations are prima facie true. The prima facie opinion of the court is to be based on a perusal of the case diary or the report made under Section 173 of the erstwhile Code of Criminal Procedure (CrPC). Now, any conclusion is only as good as the documents or materials on which it is based. Astonishingly, the court has to rely on a case diary, which is the daily record of the steps taken by the investigating officer in the course of investigation. In effect, the court has to presume that whatever written there is true. A case diary is not admissible as evidence, but Section 43D(5) permits it to be a basis for coming to a prima facie conclusion that can deprive a person of his liberty for several years.

The other important question is the extent of the enquiry that can be made by the court while considering the bail application. In this context, the observations of the Supreme Court may require reconsideration and clarification. At one stage, the Court holds that the trial court need not make a detailed examination of the evidence nor consider the probability of conviction. Equally, the trial court should not be reduced to a mechanical acceptance of the prosecution’s aspersions. The threshold inquiry should be of limited but real content. The inquiry is one of statutory plausibility, but not evidentiary sufficiency. At the same time, the Court proceeds to hold that the trial court is not to examine the probative value of the evidence or determine whether the prosecution version will ultimately withstand the trial. There should be no premature adjudication. Further, the Court goes on to hold that the stage of granting bail cannot be used to adjudicate the defences of the accused as this would unsettle the “careful balance” struck by parliament.

It is submitted that unless the defences put up by the accused are considered, it is impossible for any court to exercise its judicial function. Indeed, a batch of writ petitions challenging the validity of Section 43D(5) and other provisions of UAPA were transferred to the Delhi High Court and are still pending. The Supreme Court has proceeded on the erroneous assumption that Section 43D(5) can procedurally enable the trial court to come to a prima facie conclusion.

The other reasons why the judgment may require reconsideration is that it is in conflict with the decision in Vernon v. State of Maharashtra, (2023). A two-judge bench held that the prima facie test will not be satisfied unless there is at least a “surface-analysis” of the probative value of the evidence at the stage of examining the question of granting bail and the court must be satisfied of their quality or probative value. In that case, the Court went through the contents of letters which were referred to in the chargesheet and came to a finding that no prima facie case was made out. Due to time constraints, other decisions on Section 43D(5) are not discussed.

Thus, there are two conflicting decisions under Section 43D(5) and it is necessary that the matter is heard by a larger bench. A clear ruling on the scope of Section 43D(5) is necessary to guide the High Courts and the trial courts.

The other important point which deserves consideration is that Section 113 of the Bharatiya Nyaya Sanhita, 2023 (BNS) is identical to Section 15 of the UAPA. The stringent conditions for granting bail are absent if the accused is prosecuted under the BNS. Thus, for the same offence, one accused can be booked under the UAPA, but another can be prosecuted under the BNS. It will be almost impossible for the former category to get bail, while the latter can get bail as well as anticipatory bail. On the basis of the decision in Anwar Ali Sarkar, there is a clear violation of Article 14. Such discrimination is equally impermissible in view of the decision of a seven-judge bench in Nagpur Improvement Trust v. Vithal Rao (1973).

After seventy years, it is worth harking back to the words of Bose J.

“When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all...It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair.”

Can any law in a republican democracy permit an accused to be detained for over five years without trial, regardless of the offence, based mainly on the version of the prosecution? Under Article 13(2), any law which takes away or abridges fundamental rights is void to that extent. There is no doubt that Section 43D(5), by imposing unsustainable conditions for grant of bail, certainly abridges the right to liberty. In practice, the reluctance of courts to grant bail takes it away completely .

Arvind P Datar is a Senior Advocate.