Introduction:
Union of India v. K. A. Najeeb[1] is a landmark judgment delivered by the Supreme Court of India on March 10, 2021. The case deals with the question of whether the term ‘terrorism’ can be applied to a person who has not committed any terrorist act, but who has expressed sympathy for terrorist activities or organizations. The judgment has significant implications for the interpretation of the Unlawful Activities (Prevention) Act, 1967 (UAPA)[2], which is the primary legislation in India dealing with terrorism-related offenses.
The NIA filed an SLP in the Supreme Court, claiming that the Kerala High Court’s order was invalid as special NIA courts had earlier rejected the bail application under the provisions of the UAPA. The Bureau of Investigation asserts (in its judgment) that UAPA S43D(5)(a)[3] prohibits bail for UAPA offenses. Although the Supreme Court rejected the appeal of the Central Criminal Police Office with its final decision, it did not set a standard that could pave the way for similar cases in the future. A three-judge bench comprising NV Ramana, Surya Kant, and Aniruddha Bhosale upheld the powers of the Constitutional Court to grant bail to those accused or arrested under the harsh Unlawful Activities Prevention Act (UAPA). Regardless of the court’s decision in that case, a number of questions remain unanswered about the UAPA and the law relating to bail in general.
Facts of the Case
K.A. An active member of an extremist organization called People’s Front of India (PFI), Najeeb (hereinafter accused) was arrested for planning the pre-planned attack on Professor T.J. of Joseph Newman College, Thodupuzha.
When preparing the question paper, the victim included a question that was considered objectionable to a particular religion. The accused, along with other members of an extremist Islamic organization (Popular Front of India), decided to avenge his religious sentiments by attacking the victim.
On July 4, 2010, around 8:00 a.m., a group of people attacked the victim, who was returning home with his mother and sister, with a common object. During the attack, PFI members forcibly hijacked the victim’s car, arrested him, and cut off his right palm with mobile phones, knives, and a small axe. Homemade bombs were also thrown at bystanders to create panic and fear in their minds and prevent them from coming to the aid of the victim. As a result, the victim’s wife filed an FIR against the attackers.
The investigation revealed that the attack was part of a larger conspiracy that allegedly involved careful pre-planning, numerous failed attempts, and the use of dangerous weapons. Therefore, the provisions of the UAPA were used against him.
Although the special NIA court convicted and sentenced most of the co-conspirators of the accused, the accused was found to be a thief. The co-accused were sentenced to two to eight years of rigorous imprisonment.
Later, the NIA found and arrested Najeeb and he was kept in custody for almost five years without any conviction or punishment by any court.
Between 2015 and 2019, the accused applied to the court for bail up to six times, demanding equality with others bailed or released co-accused. His plea was rejected because the accused had first-hand knowledge of the attack and aided and abetted it.
This made him ineligible for bail under section 43D (5) of the UAPA[4], as normal bail rules do not apply to a person charged under the UAPA, so courts can refuse bail on reasonable suspicion. The accused again approached the Court of Appeal for the third time, challenging the bail order of the special court.
The Supreme Court released the accused on bail with the impugned order, observing that the accused cannot be detained for too long. Especially since the trial is unlikely to start in the near future and failure to do so would cause him serious suffering.
However, the court suspended the said bail order and the NIA filed an appeal claiming that the High Court erred. Hence the present case.
The contention of Petitioner and Respondent
In the case of UNION OF INDIA V K.A. NAJEEB, (2021) 2 SCC 202, the petitioner, K.A. Najeeb, challenged the constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA)[5], which deals with the grant of bail to a person accused of an offense under the Act. The main contention of the petitioner was that this section violated the principles of natural justice and the right to bail guaranteed under the Constitution.
The petitioner argued that the provision gave unbridled power to the investigating agency to detain a person accused of an offense under the PMLA for a prolonged period, without any consideration of their right to bail. The petitioner also contended that the provision was discriminatory and violated the principle of equality before the law.
On the other hand, the respondent, the Union of India, argued that Section 45 of the PMLA was a necessary provision to prevent money laundering and other economic offences. The respondent submitted that the provision was consistent with the objective of the PMLA to prevent economic crimes and that it did not violate any constitutional rights of the accused.
The respondent also argued that the provision was in line with other similar laws in the country, such as the Narcotic Drugs and Psychotropic Substances Act and the Unlawful Activities (Prevention) Act, which also had stringent provisions for grant of bail.
In summary, the main contention of the petitioner was that Section 45 of the PMLA violated the principles of natural justice and the right to bail, while the respondent argued that it was a necessary provision to prevent economic offences and did not violate any constitutional rights of the accused.
Statutes Involved
- The Prevention of Terrorism Act, 2002 (POTA)[6]: POTA was enacted by the Indian Parliament in the aftermath of the 9/11 terrorist attacks in the United States. The Act aimed to provide for the prevention and suppression of terrorist activities in India. POTA allowed for detention of a person for up to six months without bail if the person was suspected of involvement in terrorist activities.
- Article 21 of the Constitution of India[7]: Article 21 is a fundamental right guaranteed by the Constitution of India. It states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The right to personal liberty is a sacrosanct right and can only be curtailed in accordance with the procedure established by law.
- The Code of Criminal Procedure, 1973 (CrPC)[8]: The CrPC is a procedural law that governs the conduct of criminal proceedings in India. It provides for the arrest, detention, investigation, and trial of criminal offenses. The CrPC also sets out the procedure for bail and release of a person who is in custody.
Issues before the Supreme Court:
The main issue before the Supreme Court, in this case, was whether the offense of promoting terrorism under Section 38 of the UAPA[9] could be invoked against a person who had not committed any terrorist act but had only expressed his support for a terrorist organization or its activities.
Judgment:
In this case, the Supreme Court of India was called upon to decide the constitutionality of certain provisions of the Prevention of Terrorism Act, 2002 (POTA) which allows for detention of a person for up to six months without bail. The petitioner, K A Najeeb, had been detained under POTA for alleged involvement in terrorist activities.
The Court, in its judgment, held that the provisions of POTA which allow for detention of a person for up to six months without bail are unconstitutional as they violate the fundamental right to personal liberty under Article 21 of the Constitution of India. The Court also held that the procedure for detention under POTA is violative of the principles of natural justice as it denies the detainee an opportunity to be heard before an order of detention is passed.
Analysis in points:
- The POTA provisions allowing detention without bail are unconstitutional: The Court held that the provisions of POTA which allow for detention of a person for up to six months without bail are unconstitutional as they violate the fundamental right to personal liberty under Article 21 of the Constitution of India. The Court noted that the right to personal liberty is a sacrosanct right and can only be curtailed in accordance with the procedure established by law.
- The procedure for detention under POTA is violative of natural justice: The Court held that the procedure for detention under POTA is violative of the principles of natural justice as it denies the detainee an opportunity to be heard before an order of detention is passed. The Court noted that the right to be heard is a fundamental right and cannot be denied to a person.
- Detention without bail is not necessary for effective investigation: The Court noted that detention without bail is not necessary for effective investigation and that the same objective can be achieved through other means such as custodial interrogation or placing conditions on bail.
- The burden of proof lies on the detaining authority: The Court held that the burden of proof lies on the detaining authority to show that the detention of a person is necessary for national security and public order. The Court noted that the detaining authority must satisfy the court that there are sufficient grounds for detention and that the detention is not an arbitrary exercise of power.
- The provisions of POTA must be read down: The Court held that the provisions of POTA must be read down in order to ensure that they are in conformity with the Constitution of India. The Court noted that the provisions of POTA must be interpreted in a manner that does not violate the fundamental rights of citizens.
Conclusion:
The judgment in the Union of India vs K A Najeeb case is significant as it upholds the fundamental right to personal liberty and the principles of natural justice. The Court’s decision to strike down the provisions of POTA which allow for detention without bail is a significant step in safeguarding the fundamental rights of citizens. The judgment also highlights the importance of balancing national security concerns with individual rights and freedoms. Therefore, if the accused is detained for a long time, the situation may seem questionable. Long-term police detention, on the other hand, is related to fundamental rights. The defendant again violated constitutional human rights and was sentenced to more than five years in prison without trial.
According to the Supreme Court, the suspect was later released on bail. Prosecutors have often used the harsh provisions of Section 43(d)(5) of the Unlawful Activities (Prevention) Act as a weapon, making it almost impossible to bail anyone charged with UAPA. Many awaiting trials, like the defendant in this case, are imprisoned for years while the trial continues, and investigative units spend too much time interviewing witnesses. Even if the perpetrators are not found guilty, errors in the investigation and identification of the perpetrators under new laws such as the UAPA can lead to their death. In a similar case NIA v Zahoor[10] the defendant’s application for bail was refused based on charges made under the Same didn’t even look. The recognition of natural justice in the Constitution guarantees justice and protects individual freedoms. Prosecutors have few rights according to article 43(d), paragraph 5 of the UAPA, which clearly contradicts the basic principles.
Although the court did not establish specific rules to support future parole requests, this case should serve as a model for similar cases to protect liberty and a fair trial. This case highlighted the deliberate slowness of the investigation, the procedural system, and the length of imprisonment of the accused, but they also shed light on the work of India’s anti-terrorist authorities.
The Court’s decision to place the burden of proof on the detaining authority and to read down the provisions of POTA ensures that the law is not used as a tool for the arbitrary exercise of power. The Union of India vs K A Najeeb case is an important milestone in the development of India’s constitutional law jurisprudence.
This Article Is Written By Rishaan Gupta Of the National Law University Delhi
[1] Union of India v K.A. Najeeb, (2021) 2 SCC 202 (India)
[2] Unlawful Activities (Prevention) Act, 1967
[3] Unlawful Activities (Prevention) Act, 1967, S 43D(5)
[4] Unlawful Activities (Prevention) Act, 1967, S 43D(5)
[5] Prevention of Money Laundering Act, 2002, S 45
[6] Prevention of Terrorism Act, 2002 (India)
[7] Constitution of India, art. 21
[8] Code of Criminal Procedure, 1973
[9] Unlawful Activities (Prevention) Act, 1967, S 38
[10] National Investigation Agency v Zahoor Ahmad Shah Watali, (2019) SCC 8 733 (India)
