The Trials of Bail: Pre-Trial Presumption of Innocence Under the Unlawful Activities (Prevention) Act, 1967 and General Criminal Laws

Authors

Radhika Chitkara

Abstract

The crisis of undertrial prisoners in India, constituting three-fourths of the total prison population, has occasioned a normative recognition of the relationship between bail and the presumption of innocence (‘PoI’). The same recognition, however, does not extend to special criminal laws such as the UAPA, where almost every single prisoner is an undertrial on account of provisions prohibiting grant of bail. With a focus either on outcomes (prison population) or exceptions (national security considerations), the jurisprudential relationship between bail and PoI per se remains underexplored under both the general and special criminal legal regimes. At issue is the ‘thin’ conception of PoI, limited to the distribution of burdens and standards of proof during trial, versus the ‘thick’ conception operating as a principle of fair trial throughout the criminal process protecting individuals against unjust deprivations of liberty. This paper undertakes a jurisprudential excavation of the applicability of PoI in the pre-trial stages of the criminal process, particularly on the issue of bail. Such a jurisprudential analysis enables a fuller appreciation of both general and special criminal laws, particularly in relationship with each other. For general laws, it reveals avenues for a systematic application of PoI to the entirety of the criminal justice process encompassing the pre-trial stages, beyond patchwork resolutions banking on judicial discretion at the stage of bail. For special laws like UAPA, it enables an assessment of the manner in which the statute constructs a violation of PoI through its bail provisions.

Here, I argue that UAPA subverts PoI not simply by prohibiting bail, but by shifting the stage of guilt-determination from the trial to the pre-trial stage, thus rendering the trial effectively irrelevant to punitive detention by subterfuge. For the relationship between general and special criminal laws, the jurisprudential excavation questions the traditional wisdom that special laws are extraordinary as they derogate from rule of law guarantees otherwise available under so-called ordinary laws. Here, I demonstrate that the distinction between the ordinary and extraordinary may be superficial, as the UAPA shares significant continuities with the CrPC (and now, ‘BNSS’) in its violation of PoI at the pre-trial stage, and criminal process overall.

Recommended Citation

Chitkara, Radhika (2024) "The Trials of Bail: Pre-Trial Presumption of Innocence Under the Unlawful Activities (Prevention) Act, 1967 and General Criminal Laws," National Law School of India Review: Vol. 35: Iss. 1, Article 8.
DOI: 10.55496/RUWG4640
Available at: https://repository.nls.ac.in/nlsir/vol35/iss1/8

Digital Object Identifier (DOI)

10.55496/RUWG4640