Bail in UAPA: All about it.

~Preet.

A Delhi court has granted bail to a former Congress (Political Party) councillor in a charge brought under the Unlawful Activities (Prevention) Act 1967 (UAPA) in connection with the 2020 anti-Citizenship (Amendment) Act, 2019, (CAA) rallies. 

The CAA grants citizenship to six undocumented non-Muslim communities (Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians) who entered India on or before December 31, 2014, from Pakistan, Afghanistan, and Bangladesh. It exempts members of the six communities from prosecution under the Foreigners Act of 1946 and the Passport Act of 1920. The two Acts outline the penalties for illegally entering the country and staying on expired visas and permits.

The court granted release to the accused notwithstanding the prosecution's argument that there were limits inherent in Section 43D(5) of the UAPA, a clause that makes bail almost hard to award since it allows little opportunity for judicial reasoning. The defence contended that Section 43D UAPA simply imposes conditions and is not an absolute bar to the granting of bail. The main issue with the UAPA is Section 43(D)(5), which prohibits the release of any accused person on bail if police have filed the chargesheet and there are reasonable grounds to believe that the accusation against such person is prima facie accurate. Section 43(D)(5) has the effect of making it exceedingly difficult for the police to prosecute an individual under the UAPA once they decide to do so. The result of Section 43(D)(5) is that once the police chose to charge an individual under the UAPA, granting bail becomes exceedingly difficult. Bail is a safety and guarantee of the right to liberty guaranteed by the constitution. This clause provides very little opportunity for judicial reasoning and renders the granting of bail under UAPA very difficult. The Supreme Court confirmed in 2019 in the case of Zahoor Ahmed Shah Watali that courts must accept the state's argument without assessing its merits. However, courts have interpreted this Article differently in recent years, emphasising the right to a speedy trial and raising the bar for the state to charge an individual under UAPA. 

The UAPA was enacted in 1967 and later strengthened by the government in 2008 and 2012 to be modelled as an anti-terror law. In August 2019, Parliament approved the Unlawful Activities (Prevention) Amendment Bill, 2019 to designate individuals as terrorists under the Act on certain grounds. To deal with terrorism-related offences, it departs from standard legal procedures and establishes an extraordinary regime in which the accused's constitutional rights are limited. Between 2016 and 2019, the time for which the National Crime Records Bureau (NCRB) reported UAPA numbers, a total of 4,231 First Information Report (FIR) were made under various provisions of the UAPA, with 112 instances resulting in convictions. This frequent application of UAPA suggests that it is frequently misapplied and abused, as have previous anti-terror legislation in India in the past, such as POTA (Prevention of Terrorism Act) 2002 and TADA (Terrorist and Disruptive Activities (Prevention) Act) 1987. 

The definition of a "terrorist act" under the UAPA differs significantly from the concept recommended by the United Nations (UN) Special Rapporteur on the Protection of Human Rights and Fundamental Freedoms in Countering Terrorism. According to the Special Rapporteur, three elements must be present in order for an offence to be classified as a "terrorist act"; the means employed must be lethal ,the purpose of the conduct must be to instil terror in the populace or to persuade a government or international organisation to do or refrain from doing anything and the purpose must be to advance an ideological goal. 

UAPA, on the other hand, provides an overbroad and imprecise definition of a "terrorist act" that encompasses the death or injury of any person, damage to any property, and so on. Trails are pending: Given the status of India's justice delivery system, the percentage of pendency at the level of trial is 95.5 percent on average. This indicates that trials are finished in fewer than 5% of cases per year, indicating the causes for extended years of undertrial detention. 

It also includes any act that is "likely to threaten" or "likely to strike terror in people," giving the government unrestricted authority to label any ordinary citizen or activist a terrorist without the commission of these acts. As a result, the state grants itself more powers in comparison to the individual liberty granted by Article 21 of the constitution. Undermining Federalism: Some experts believe it is anti-federal because it disregards the authority of state police in terrorism cases, despite the fact that 'Police' is a state subject under the 7th schedule of the Indian Constitution.

The judiciary has a greater role to play here in thoroughly investigating cases of alleged misuse. Judicial review should be used to check for arbitrariness and subjectivity under the law. Under the right to appeal for the individual against him being classified as a terrorist, the judiciary must adhere to the fundamental concept of fair procedure and be on the lookout for any attempt by the government to frame the individual by fabricating false evidence. Officers who are found guilty of misusing or abusing their legal authority shall face severe penalties.  Drawing a boundary between individual liberty and the state's commitment to provide security is a classic conundrum. It is up to the state, the courts, and civil society to establish a balance between constitutional freedom and the need for anti-terrorist activity.