Terrorism and Challenges Related To It

How Courts have been Granting Bail in UAPA cases?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : UAPA Bail Provisions

Mains level : Bail as a diffuser in UAPA Provisions

Introduction  

  • The Supreme Court’s recent decision to deny bail to an accused in an alleged “Khalistan module,” highlights the stringent bail provisions under the Unlawful Activities Prevention Act (UAPA).
  • Unlike ordinary criminal law, the UAPA imposes higher hurdles for granting bail, reflecting the gravity of offenses related to terrorism and unlawful activities.

About Unlawful Activities Prevention Act (UAPA)

Description
Purpose To provide for the prevention of certain unlawful activities of individuals and associations, dealing with terrorist activities, and activities directed against the integrity and sovereignty of India.
Applicability
  • Indian and foreign nationals and applies throughout India.
  • Citizens of India outside India, persons in the service of the Government, and persons on ships and aircraft registered in India.
Origin
  • Enacted in 1967 based on the recommendation of the Committee on National Integration and Regionalism.
  • Followed the Constitution (Sixteenth Amendment) Act, 1963, which empowered Parliament to impose reasonable restrictions on freedom of speech and expression, right to assemble peaceably, and right to form associations or unions.
Key Provisions
  • Declaration as unlawful (Section 3): Central government has absolute power to declare any association unlawful.
  • Chargesheet (Section 45): Investigating agency must file a chargesheet within 180 days after arrests, extendable further after court intimation.
  • Punishment (Section 16, 18): Includes death penalty and life imprisonment.
2004 Amendment
  • Added “Terrorist Act”: To the list of offenses enabling the ban of organizations involved in terrorist activities.
  • Expanded the definition of “unlawful” activities: To include terrorist acts, in addition to actions related to secession and cession of territory.
2019 Amendment
  • Central Government to designate individuals as terrorists based on specific grounds.
  • National Investigation Agency (NIA) DG, authority to approve seizure or attachment of property during NIA investigations.
  • NIA officers of the rank of Inspector or above to investigate terrorism cases, expanding the scope from officers of the rank of Deputy Superintendent or Assistant Commissioner of Police.

Bail Provisions in UAPA: Section 43D (5)  

  • Key Provision: Section 43D (5) of the UAPA stipulates that accused individuals charged under specific chapters of the Act shall not be granted bail unless certain conditions are met.
  • Bail Criteria: The law places the burden on the accused to demonstrate to the court that the accusations against them are not prima facie true, shifting the onus from the prosecution to the defense.

Impact of Judicial Precedents

  • Watali Judgment (2019): The Supreme Court’s ruling in Zahoor Ahmed Shah Watali v NIA established a precedent wherein bail decisions under the UAPA are based solely on accepting the prosecution’s case at face value.
  • Limitations on Defense: Legal scholars argue that the Watali judgment restricts the defense’s ability to challenge the prosecution’s case effectively, undermining the principle of a fair trial.

Post-Watali Developments

  • Court Discretion: Despite the stringent bail provisions, courts have granted bail in certain cases, emphasizing the need for specific, individual charges supported by credible evidence.
  • Differing Judicial Interpretations: Subsequent judgments, such as in Union of India vs KA Najeeb (February 2021) and Vernon Gonsalves v State of Maharashtra (July 2023), have provided nuances to the bail criteria, recognizing the importance of balancing liberty with the right to a speedy trial.

Challenges and Future Implications

  • Legal Ambiguity: Divergent interpretations by different benches highlight the need for clarity in UAPA bail provisions, with the potential for larger benches to resolve conflicting precedents.
  • Case Analysis: The recent denial of bail to a Khalistani protagonist underscores the predominance of the Watali ruling in UAPA bail decisions, despite potential inconsistencies with other judgments.

Conclusion

  • Balancing Rights: The debate over UAPA bail provisions reflects the delicate balance between safeguarding national security and protecting individual liberties.
  • Legal Evolution: The evolution of judicial interpretations will shape the future landscape of UAPA bail jurisprudence, influencing the rights of accused individuals in cases involving national security concerns.

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