23NOV 2020


The Unlawful Activities Prevention Act [“UAPA”] is a national security legislation passed in the year 1967 to ensure safety from unlawful activities of disreputable groups and terrorist organisations. It has been well-lit and under public scrutiny since the past few months over a variety of issues ranging from the arrest of Fr. Stan Swamy in the Bhima Koregaon protests to Jamia Millia Islamia student activists Safoora Zargar and Umar Khalid in the Delhi Riots case.

Right to Bail in India is rooted in Art. 21 of the Indian Const., which gives individuals, the right to personal life and liberty, coupled with the legal belief of presumption of innocence until proven guilty. This presumption finds place in India’s international obligations like the UDHR and the ICCPR and various judicial pronouncements on the same.

For normal criminal offences, Sec. 437 of the CrPC grants the accused, a right to bail if the court is satisfied that it is ‘just and proper’ to do so, if the accused is not charged of an offence punishable with life imprisonment or death. This right however, is taken away from the accused in cases under the UAPA by the virtue of Sec. 43D(5).

A bare perusal of the text of Sec. 43D(5) makes it definite that it applies only to offences under Chapter IV and VI of the act, i.e. ‘terrorist acts’. Rejection of the right to bail under this provision therefore, demands a ‘prima facie’ indication of the same. This roadblock was removed in the year 2019 by introducing an amendment to the UAPA. Through with amendment, the definition of ‘terrorist’ under Sec. 35 and Sec. 36 was expanded to include individuals too. In light of these facts, the State has lately been using this specific provision to convict student leaders and activists.

In the recent case of arrest of the famous news anchor Arnab Goswami, Chandrachud J. of the Hon’ble Supreme Court of India, deciding whether to grant bail to the journalist had opined that “personal liberty must be upheld.” The judgement also read as:
“It also asked the high courts to not fall short of exercising constitutional duties in protecting “personal liberty”…..We must send a message across to the high court today that please, exercise your jurisdiction to uphold personal liberty.”
“If we as a constitutional court do not lay down law and protect liberty, then who will?.... If we don’t interfere in this case today, we will be travelling down a path of destruction. One may differ in ideology, I don’t even watch his channel, but constitutional courts have to protect freedom, or they will be walking on a path of destruction.”

The judgement has invited a lot of controversy, given that student leaders and activist like Swamy and Khalid have been denied bail because they’re booked under UAPA, but Arnab Goswami has been given the same, being booked under a different legislation.

Adding on, the court in Jyoti Chorge v. State of Maharashtra has also made it clear that the UAPA has to be interpreted in consonance with the Fundamental Rights of the accused; thereby also subjecting it to the Right to personal liberty, which was denied in the Swamy and Khalid cases.

Such legislations, apart from being a safehouse for the State to supress dissent, also carry with them, a large scope of subjectivity in the interpretation of their provisions. Instead of curbing ‘unlawful activities’, this legislation in practice gives enormous powers to the Police to arrest and detain. Consequently, there is a need to reduce the scope of subjectivity in the provisions of the Act, so as to ensure that ‘anti-nationals’ are not covered in the definition of ‘terrorists’ and arbitrary detentions do not take place.

It will be interesting to see the stance of the Apex Court in the Bhima Koregaon and Delhi Riots cases, and whether they follow the ratio of the Constitutional Bench in the Goswami case. The Supreme Court can also consider issuing guidelines regarding application of bail provision to UAPA, while balancing the security of state with Fundamental Rights of the accused.

We trust you will find this an interesting read. For any queries or comments on this update, please feel free to contact us at [email protected]

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