19-February-2024-Editorial

SC SAYS JAIL, NOT BAIL, IS THE RULE UNDER THE UAPA

The denial of bail to an accused involved in an alleged Khalistan module by the Supreme Court, citing the stringent provisions of the Unlawful Activities Prevention Act (UAPA), highlights the evolving landscape of bail provisions within this legal framework.

Evolution of Bail Provisions under UAPA

• 2008 Amendment: The UAPA Amendment Act, 2008 introduced Section 43D (5), which mandated the denial of bail if there were reasonable grounds to believe the case against the accused was prima facie true.
• 2016 Judgment: In Angela Harish Sontakke v State of Maharashtra, bail was granted despite Section 43D (5), emphasizing the need for balance between alleged offences and time in jail.
• 2019 Interpretation: National Investigation Agency v Zahoor Amhad Shah Watali judgment narrowed the scope of bail, insisting the court accept NIA’s version of events without delving into case merits.
• 2021 Highlight: Union of India v K.A. Najeeb case recognized the possibility of bail based on Article 21 rights violation due to prolonged incarceration.
• 2023 Ruling: Vernon Gonsalves v State of Maharashtra diverged from the Watali ruling, emphasizing evidence analysis for bail.
• Recent Denial: Despite the Gonsalves ruling, bail was denied following the Watali precedent, raising concerns about inconsistent interpretations.

Understanding UAPA

• Background: Enacted in 1967, UAPA aims to prevent unlawful activities and deal with terrorism, often dubbed the “Anti-Terror law”.

• Provisions: It defines unlawful activities as actions supporting secession or questioning India’s sovereignty, empowering the National Investigation Agency (NIA) for nationwide investigations.
• Amendments: Multiple amendments have expanded provisions, addressing terrorist financing, cyber-terrorism, and individual designation.

Related Concerns

• Low Conviction Rate: Despite numerous arrests, the conviction rate under UAPA remains low, raising questions about its efficacy.
• Subjective Interpretation: The broad definition allows subjective interpretations, making it prone to misuse against specific groups or individuals.
• Limited Judicial Review: The 2019 amendment allows the government to designate individuals as terrorists without judicial review, raising concerns about due process.

Way Forward

• Enhanced Oversight: Implement robust oversight mechanisms to prevent misuse, including regular reviews and judicial scrutiny.
• Clearer Definitions: Refine and narrow down definitions to minimize subjectivity and misuse potential.
• Time-bound Investigations: Establish clear timelines for investigations and trials to ensure efficient judicial processes and prevent prolonged detentions.