Granting bail in UAPA cases

What’s in today’s article?

• Why in news?
• What is the Unlawful Activities Prevention Act (UAPA), 1967?
• 2019 Amendment of UAPA
• What is Section 43D (5) of UAPA

Why in news?

• Recently, the Supreme Court denied bail to Gurwinder Singh, an accused in an alleged Khalistan module.
  • He has been accused of a being part of a larger conspiracy with Sikhs for Justice, a pro-Khalistan group banned by the Indian government.
• Courts have sometimes granted bail under the UAPA, despite its stricter bail conditions. They have interpreted Section 43D (5) to allow bail in exceptional cases.
• However, in most instances, courts still deny bail, even though some rulings have made it harder for the state to oppose bail.

The Unlawful Activities Prevention Act (UAPA), 1967

• About
  • Enacted in 1967, UAPA is the primary counter-terror law in India.
  • It was enacted to outlaw and penalise unlawful and terrorist activities, which pose a threat to the integrity and sovereignty of India.
  • These activities include:
    • Aiding and abetting terrorists
    • Funding terrorists
    • Inciting anti-national feeling in the masses
    • Other unlawful activities against the state
• Key provisions of UAPA
  • Wide ranging powers to Central Govt
    • It provides wide-ranging powers to the Central Government to designate organisations as terrorist organisations 
    • It also prescribes the penalties for taking part in the activities of such organisations.
  • Applicability
    • It is also applicable if the offences are committed outside India. Both Indian and foreign nationals can be charged.
  • Timeline
    • A charge sheet can be filed in maximum 180 days after the arrests.
    • The investigation has to be completed within 90 days.
    • If investigation is not completed with the stipulated time, the accused is eligible for default bail.
  • Special court
    • The act establishes a special court designated to conduct trials.
• Sanction to prosecute under UAPA
  • Section 45(1) of the UAPA says no court shall take cognizance of any offence under the Act without the previous sanction of the central or state government or any officer authorised by them.
  • Under Section 45(2), the sanction for prosecution has to be given within a prescribed time only after considering the report by the competent authority.

2019 Amendment of UAPA

• The original act was amended in the years 2004, 2008, 2013, and 2019 to increase its scope and ambit. 2019 amendment changed the following:
• Who may commit terrorism:
  • The amendment additionally empowers the government to designate individuals as terrorists on the same grounds.
• Approval for seizure of property by NIA:
  • The Amendment adds that if the investigation is conducted by an officer of the NIA, the approval of the Director General of NIA would be required for seizure of such property.
• Insertion to schedule of treaties
  • The Act defines terrorist acts to include acts committed within the scope of any of the treaties listed in a schedule to the Act.
  • The Schedule lists nine treaties, including the Convention for the Suppression of Terrorist Bombings (1997), and the Convention against Taking of Hostages (1979).
  • The Amendment adds another treaty to the list. This is the International Convention for Suppression of Acts of Nuclear Terrorism (2005).

Section 43D(5) of UAPA

• About
  • This provision deals with the granting of bail to the terror accused. The provision makes grant of bail virtually impossible under UAPA.
  • The test for denying bail under the UAPA is that the court must be satisfied that a “prima facie” case exists against the accused.
    • It says that someone accused of a crime under this Act can't get bail unless the Public Prosecutor has a chance to speak about it.
    • If the court looks at the case diary and believes there are good reasons to think the accusation is likely true, then the accused person cannot get bail.
    • The law states that if the court relies solely on the police's version, the accused must convince the court that it's not reasonable to believe the accusations are true at first sight.
    • By putting this burden on the accused, the fundamental idea in criminal law that a person is innocent until proven guilty is changed in the UAPA framework.
• Supreme Court on Section 43D (5) of UAPA
  • In the case of Zahoor Ahmed Shah Watali, the Supreme Court in 2019 confirmed that courts must accept the state’s case without examining its merits while granting bail.
    • In other words, it directed courts not to analyse evidence or circumstances but look at the totality of the case presented by the state while deciding on bail petition.
  • In Union of India v K A Najeeb, January 2021, SC upheld the grant of bail under UAPA when the accused had undergone incarceration for a significant period.
    • However, it recognised that bail under UAPA was an exception.
  • SC was of the view that the legislative policy against grant of bail would not hold ground if:
    • there is no likelihood of trial being completed within a reasonable time and
    • the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
  • In this case, SC tried to ensure that provisions like Section 43D(5) of UAPA is not used as the sole metric for the denial of bail.
  • It incorporated the constitutional right to speedy trial as a ground for granting bail.
  • In July 2023, the Supreme Court, in the case of Vernon Gonsalves v State of Maharashtra, disagreed with the Watali ruling regarding how the "prima facie true" test should be applied.
    • The bench stated that the test wouldn't be satisfied unless there's some basic analysis of the evidence's value during the bail examination, and the quality of evidence convinces the court of its worth.
  • Since both the Watali and Gonsalves rulings came from benches with the same number of judges, it remains to be seen how future benches will use the test.
  • If there's significant disagreement between different two-judge benches, a larger bench will need to settle the law.

Q1) What is bail in law?

In law, bail is the temporary release of a person accused of a crime. It's a legal mechanism that balances the accused's right to freedom with the public interest.

 Q2) What is Nuclear Terrorism?

Nuclear terrorism refers to any person or persons detonating a nuclear weapon as an act of terrorism. Some definitions of nuclear terrorism include the sabotage of a nuclear facility and/or the detonation of a radiological device, colloquially termed a dirty bomb, but consensus is lacking.

Source: SC says jail, not bail, is the rule under the UAPA: How courts have been granting bail in UAPA cases | MHA | PRS India | Live Mint | Indian Express