The Chancellor’s Foot and the fractured Bail Jurisprudence under the UAPA 1967

Seldon’s proverbial metaphor about Chancellor’s foot became symbolic to describe the variability of judicial discretion and the unpredictability of the Rule of Law.

The law of precedents springs from the doctrine of stare decisis. It requires that the Rule of Law once established by the court of last resort, should be followed and not be lightly disregarded.¹ This doctrine is necessary to maintain judicial consistency, stability, fairness, and predictability due to which the Indian jurisprudence has developed and progressed over the years.

The Chancellor’s foot

The “Chancellor’s foot” is a historic metaphor developed in the 17th century by an English jurist John Seldon. He observed how the exercise of jurisdiction in equity differed from each Chancery leading to different outcomes like the length of their foot. He famously quoted “Equity is a roguish thing, for law we have a measure, know what to trust to, equity is according to the conscience of him that Chancellor, and as that is larger or narrower, so is equity. It is all one as if they should make the standard for the measure, we call a foot, a Chancellor’s foot, what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot, it is the same thing in the Chancellor’s conscience.²”

Seldon’s proverbial metaphor became symbolic to describe the variability of judicial discretion and the unpredictability of the Rule of Law.

Article 21 and the right to bail

Article 21 is one of the most important fundamental rights envisaged in our Constitution. It provides that no person shall be deprived of life or personal liberty except according to a procedure established by law. However, this procedure of law should be reasonable, fair, and just.³ Justice Khanna in his famous dissent in the habeas corpus case has also recorded that “liberty is not a gift of the Constitution but is a natural right, and an illegal detention cannot be immune from judicial review”.

When the procedure established by law fails, the magnanimity of Article 21 has prevailed and upheld through many precedents over various judicial periods.

The phrase bail is the rule and jail is the exception propounded by Justice Iyer⁴ has been foundationed on the principles of Article 21. This phrase has received expansive judicial interpretation by the Supreme Court over the years and was further personified when the Supreme Court opined that the right to speedy trial is a fundamental right under Article 21.⁵

Liberty-based bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA)

Bail under the UAPA is strictly regulated under Section 43-D(5), where it requires the court to prima facie presume the offence to be true on the basis of the charge-sheet without appreciating the evidence. This narrow statutory threshold had limited the chances for the grant of bail. Due to this draconian provision, there have been plenty of instances where the accused in the UAPA cases are incarcerated in jail without any trial being commenced.

Over the years the Supreme Court has delivered contradictory and conflicting authorities with respect to liberty-based bail under the UAPA. On one hand, the Supreme Court has upheld that long incarceration in jail without trial violates Article 21. On the other hand, most Benches have routinely ignored the applicability of the same.

In Union of India v. K.A. Najeeb⁶, a three-Judge Bench of the Supreme Court set a precedent holding that even rigorous statutory conditions of bail under the UAPA can be overlooked if there is no likelihood of the trial being completed within a reasonable time and the accused is incarcerated in jail already having undergone significant custody. This ruling held water by aligning and overriding the stringent bail condition under the UAPA by the constitutional right under Article 21.

However, the Supreme Court in its recent judgment Gulfisha Fatima v. State (NCT of Delhi)⁷ while granting bail to five accused on similar allegations, denied bail to Sharjeel Imam and Umar Khalid for playing a primary role of a conspirator which strongly attracted the statutory threshold of the UAPA. Despite the two accused being incarcerated in jail for over five years without trial, the court reasoned that delay-based pleas must necessarily be adjudicated on an “accused-specific footing”. It held that prolonged custody alone cannot trigger Article 21 without examining the specific nature of the delay and the prima facie narrative of the case from the record.

By doing so, the top court clearly overlooked the settled law that statutory bail implications even in stringent laws cannot override the fundamental right to life and liberty guaranteed under Article 21, especially when the trial is inexplicably delayed and the accused is incarcerated in jail for years. This judgment per incuriam clearly steered away from the doctrine of stare decisis by applying its own weight of conscience and equity on the prima facie merit of the case.

Re-establishing judicial discipline

Recently, another Bench of the Supreme Court in Syed Iftikhar Andrabi v. NIA⁸, while upholding the law laid down in the case of K.A. Najeeb⁹ strongly expressed the inconsistent judicial discipline followed by the aforesaid judgment (Gulfisha Fatima¹⁰).The court while granting bail also observed that the conviction rate under the UAPA was extremely low, leaving an overwhelming majority of cases to end in acquittals after years of pre-trial detention.

In the 76 years of the Constitution, Article 21 has gone through a series of dark judicial and political times which have formulated and crystallised the freedom of liberty in India. Despite going through a paradigm of constitutional shifts and rifts, an authority or a precedent well settled by the Supreme Court in matters related to liberty-based bail is still altered as per the individual court’s conscience. Indeed, the Supreme court is not one but 17 working courts and each courtroom has its own conscience, equity, and approach towards its respective cases. However, a fair adjudication not only requires a sound individual conscience but also strong reasonableness and acceptance to find the balance between a Judge’s conscience and the Rule of Law. A settled law, especially while upholding Part III of the Constitution, cannot be inconsistent and subjective against the already settled judicial precedents which have been interpreted, settled, and followed over time by virtue of Article 141.

Sheer ignorance of this would amount to a situation like the Chancellor’s foot, if each courtroom of the Supreme Court delivered verdicts on its own individual consciousness, ignoring the judicial discipline established by the Rule of Law. The law set over time cannot change with the change of the Bench,¹¹ and the right to bail due to long incarceration in jail without trial cannot be dependent on the basis of the length of each courtroom’s foot.

Recognising this critical rift, a larger reference has been sought in the case of Syed Iftikhar¹² to conclusively settle this legal principle. This reference is crucial to set a definitive precedent as the foot of the individual court can never be allowed to stamp out the foundational right to personal liberty guaranteed under the Constitution.