The Unlawful Activities (Prevention) Act, 1967 (UAPA) has stringent provisions for granting bail under Section 43D(5). This section requires the court to deny bail if there are reasonable grounds to believe that the case against the accused is prima facie true[1]. The provision makes bail difficult to secure as the court can only assess the chargesheet prepared by the National Investigation Agency (NIA) and cannot consider any exculpatory evidence provided by the accused.
In 2019, the Supreme Court in National Investigation Agency v Zahoor Amhad Shah Watali interpreted Section 43D(5) narrowly, holding that the degree of satisfaction required to determine if a prima facie case exists for bail is 'lighter' under the UAPA than in other criminal legislations[4]. This effectively means that the court must accept the NIA's version of events, making bail hard to secure after charges are framed.
However, in 2021, the Supreme Court in *Union of India v K.A. Najeeb* carved out some relief from the stringent reading of the bail provision in *Watali*, holding that Section 43D(5) does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution (fundamental rights).
The Court has thus recognized the duality between the stringent bail provisions of the UAPA and the constitutional right to liberty.
So, while the UAPA imposes strict conditions for bail, the Supreme Court has attempted to balance the competing interests of national security and individual liberty by carving out exceptions to grant bail in cases of prolonged incarceration or violation of fundamental rights. The jurisprudence on UAPA bail remains a delicate balance between constitutional and social morality.
Impact of UAPA on the balance between constitutional rights and social morality
The Unlawful Activities (Prevention) Act (UAPA) significantly impacts the balance between constitutional rights and social morality in India. While intended to combat terrorism, the UAPA has been criticized for undermining fundamental rights, particularly the right to a fair trial and freedom of expression.
Constitutional Rights vs. Social Morality
1. Curtailment of Rights: The UAPA allows for the detention of individuals based on vague definitions of “terrorist acts,” which critics argue can criminalize dissent and peaceful protests. This broad application can lead to the suppression of legitimate expressions of opinion, thereby infringing on Article 19(1)(a) of the Constitution, which guarantees freedom of speech.
2. Bail Provisions: Section 43D(5) of the UAPA imposes stringent conditions for bail, requiring courts to deny bail if there are reasonable grounds to believe the accusations are prima facie true. This has led to prolonged incarceration without trial, raising concerns about the violation of Article 21, which guarantees the right to life and personal liberty.
3. Judicial Oversight: Recent Supreme Court rulings have emphasized the need for judicial discretion in bail matters, allowing courts to consider fundamental rights violations even within the framework of the UAPA. This reflects a recognition of the need to balance state security interests with individual liberties.
Conclusion
The UAPA exemplifies the tension between the state’s obligation to ensure security and the need to protect individual rights. While it serves a critical role in counterterrorism, its application must be carefully monitored to prevent the erosion of constitutional freedoms and to uphold social morality.
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