The Unlawful Activities (Prevention) Act or UAPA has attracted scrutiny for its stringent bail clauses. Accused under this anti-terror law can face prolonged incarceration before trial. However, recent Supreme Court judgments have tried expanding legal room to allow bail, where merits justify, even under UAPA.
UAPA Bail Facts
First enacted in 1967 to curb secessionist movements, the UAPA framework has been repeatedly amended to widen its scope for combatting terror. Key legal features include:
- Broad definitions of ‘unlawful activity’: Encompasses threats to territorial integrity, public order as well as broadly defined ‘terrorist acts’.
- Reverse burden for bail: After police file chargesheet, the accused has to prove no prima facie offense instead of police having to establish reasonable grounds for denial of bail. Difficult evidentiary barrier for detainees to clear.
- No anticipatory bail: Courts barred from granting pre-arrest bail as matter of right, only in exceptional circumstances.
- 180 day detention pre-chargesheet: Police can take half a year before filing chargesheet during which it’s near impossible to get bail. Period extendable further to 360 days per government sanction.
As a result, undertrials arrested under UAPA face long periods of incarceration before trial leave aside conviction.
Navigating Strictures to Grant Bail
UAPA’s Section 43-D (5) does prohibit release of terror accused on bail if the court is satisfied that prima-facie offenses have been made out.
However, the Supreme Court has interpreted this clause to allow bail under extraordinary circumstances or parity clauses through the following tests:
A Charge Not Substantiated
Where police chargesheet has gaping holes regarding nature or credibility of evidence presented to sustain offenses under UAPA, courts can grant bail.
But high evidentiary bar for accused to demonstrate why charges fail scrutiny.
E.g. Sudha Bharadwaj case
Doubts Over Authenticity of Evidence
Courts have opened bail when material witnesses or documents lack integrity or doubts raised over evidence veracity.
Key factor is establishing discontinuity in the terror chain of events alleged.
E.g. Gautam Navlakha case
No Reasonable Grounds for Denial Cited
Onus lies on prosecution to justify why bail should be denied given any convict is entitled to liberty under Article 21.
Courts have granted bail where no cogent rationale furnished behind denial.
E.g. Anand Teltumbde case
Lengthy Incarceration
Bail permissible where detainee already undergone substantial custody exceeding half of prescribed sentence terms.
E.g. Akhil Gogoi case
Medical Grounds
Interim bail permitted where accused have grave medical issues or no special facilities for treatment available in prison.
E.g. GN Saibaba case on multiple ailments
Despite these narrow pathways, obtaining bail under UAPA remains an uphill jurisprudential battle given the law’s statutory design.
Judicial Dilemmas in Granting Bail
UAPA cases pose tough balancing dilemmas before courts adjudicating bail – weighing civil liberties of terror accused versus imperatives of safeguarding national security.
Risks of Denying Bail
While terror incidents create surges of righteous indignation, discarding rule of law even for suspects can create the following hazards:
- Prolonged detention encourages miscarriage of justice
- Impinges on fundamental rights against arbitrary arrest
- Devoid undertrials of means to build legal defense
- Taints India’s rights record and democratic credentials
Risks of Granting Bail
However liberally allowing bail even in cases bearing hallmarks of terror plots can also jeopardize welfare of people and the state:
- Releases terror masterminds to orchestrate further attacks
- Encourages recruitment into extremist ideologies
- Emasculation of India’s anti-terror legal architecture
- Potential law and order outcomes hazardous
Given the need for restraint and the fact that personal liberty can never be absolute, judges have to astutely assess merits of each case through neutral lens best separating bias from facts. Granting bail even under legislation as stringent as UAPA is thus not legally implausible. But does require courts to judiciously navigate risks, uphold rule of law and yet deny release that enables terror threats.