Home / Opinion / Views /  Why the harsh bail provisions of UAPA have lived on

On 16 June, a court in Delhi granted police a 60-day extension under the Unlawful Activities (Prevention) Act, 1967 (UAPA) to file a chargesheet in a Delhi violence case, prolonging the period before which arrestees become entitled to statutory bail. This and the recent bail rejections under the Act have led to a renewed focus on its harsh provisions. Overly broad offences and onerous bail conditions effectively condemn many to years of incarceration without trial. But amid criticism of the continued custody of activists under the Bhima Koregaon and Delhi violence cases, it is important to remember that such criticism had led to a repeal of similar provisions in the past, only for them to come back in even more insidious and dangerous ways. Draconian measures that the state itself agreed should be temporary have over the years been made permanent. This history is crucial to put current developments in context—even when the terror of such laws is widely recognised, they have endured on the statute books and met little challenge from courts, offering a sobering lesson for the future.

Take UAPA’s harsh bail provisions, for instance. When it was originally enacted, the UAPA had no such restrictions. In fact, the law then dealt only with ‘unlawful’ associations and did not contain any anti-terror provisions. The history of these anti-terror and bail provisions can be traced back to the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). TADA extended the period of incarceration without a chargesheet to a year and prohibited bail unless the court was satisfied that the accused person was not guilty of the alleged offence. Under ordinary law, unless a chargesheet is filed within a maximum of three months, the accused gets an automatic right to bail. Moreover, incarcerating persons before trial is the exception, not the norm—justified only to ensure that the accused won’t abscond, tamper with evidence, or otherwise interfere with a fair trial. But even if none of these factors were made out, TADA made it near-impossible to secure bail years before the accused person’s guilt was decided.

TADA was enacted as a supposedly temporary measure, an ‘extraordinary’ law necessitated by the ‘extraordinary’ threat posed by terrorism at the time. While it was renewed by Parliament for a decade, it was finally allowed to lapse in 1995 amidst fierce criticism of its rampant abuse. But nearly all its provisions, including a modified version of its restrictions on bail, were brought back in the Prevention of Terrorism Act, 2002 (POTA). POTA too had a sunset clause and required renewal by Parliament, and it too faced widespread critique of its misuse. But when POTA was repealed in 2004, most of its provisions were given a permanent home in the UAPA, which does not have any sunset clause. In 2008, in the wake of the 26/11 terror attacks, the UAPA was amended and restrictions on bail were introduced into the Act for the first time. For certain UAPA offences, the period of incarceration without a chargesheet can be extended up to six months and no person can be granted bail if the state’s accusations seem prima facie true.

When introducing these changes, the erstwhile home minister admitted that TADA and POTA had been misused but offered sparse justification for why similar provisions were being made permanent in the UAPA. Another ruling party member urged, “If we actually catch a terrorist, he must not get bail easily". But what if the person caught isn’t one?

Once invoked, extraordinary laws erode the ability of the accused to effectively argue her innocence. Under ordinary law, police officers must immediately inform persons of the grounds of their arrest. Under the UAPA, this can happen “as soon as may be," cornering arrestees into having to argue against their custody without knowing the grounds for it. Even under ordinary law, the accused persons have a right to see all the material against them only once a chargesheet is filed. But once the police has thought it fit to bring charges against someone, it becomes near-impossible to meet the UAPA’s condition and convince a court that there isn’t even a prima facie case against the accused.

In the context of TADA, the Supreme Court in 1994 recognised that TADA was often invoked unscrupulously, even when it wasn’t made out on facts, only to deny bail. But the Court still upheld its constitutionality, exhorting prosecutors and courts not to act as a “post office" for the police and to independently ascertain whether TADA was being misused. When laws eliminate safeguards against misuse, however, mere exhortations cannot suffice. Under the UAPA, an ‘independent’ authority is supposed to review the evidence before prosecutions can proceed, but this authority is appointed by the executive itself.

Offences under other laws, such as drug trafficking and money laundering, attract certain restrictions on bail as well, and also raise concerns about lengthy incarceration before trial. But bail conditions in the UAPA are accompanied by a host of other provisions, also inherited from its predecessors, that make the law particularly draconian. For instance, the Act allows the government to ban organizations as terrorist on vague and tenuous grounds of believing that the organization is “involved" in terrorism, without any judicial oversight. That such provisions criminalize legitimate dissent was recognised well enough for TADA and POTA to be repealed. But their terror lives on, along with provisions that make jail the rule, and bail the exception, well before guilt is even adjudicated.

The author is a lawyer based in Delhi.

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