Why Getting Bail Under UAPA Is So Tough – Free PDF Download

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UAPA

• Unlawful Activities (Prevention) Act 1967 is a law aimed at prevention of unlawful activities associations in India.
• Its main objective was to give powers to central institutions for dealing with activities directed against the integrity and sovereignty of India.

Why was it brought?

• Central government was considering a stringent law against calls for secession in the mid-1960s. In 1967, the Naxalbari incident imparted a sense of urgency and Unlawful Activities (Prevention) Act was passed in December 1967.
• Note: Earlier in 1966, the President had promulgated the Unlawful Activities (Prevention) Ordinance.

UAPA

• The scope of UAPA 1967 has widened as Unlawful Activities (Prevention) Act has been amended multiple times – 2004, 2008, 2012 & 2019.
• Initially, the Act provided for declaring an association or a body of individuals “unlawful” if they indulged in any activity which threatned country’s sovereignty and territorial integrity.
  • In 2004 amendment, many provisions of POTA (Prevention of terrorism act) were added to UAPA after POTA was repealed in 2002.
  • In 2008, after the Mumbai attacks it was further strengthened.
  • In 2012,  UAPA was brought in line with various requirements of the Financial Action Task Force. The ban on organisations was extended to 5 years from earlier 2 year ban.
  • In 2019, UAPA was amended to empower the government to designate individuals as terrorists.

Why is UAPA very stringent?

UAPA – Problem Area

• Under Section 43D(5) of UAPA, bail cannot be granted to a suspect if the court is of the opinion that there are reasonable grounds to believe that the charges are prima facie true.
• Supreme Court in 2019 in NIA v. Zahoor Ahmad Shah Watali reiterated that in considering bail applications under the UAPA, courts must presume every allegation made in the First Information Report to be correct. Bail can be obtained only if the accused produces material to contradict the prosecution.
• Simply put, the burden rests on the accused to disprove the allegations, which is virtually impossible in most cases. Many human rights defenders feel that this provision is draconian. It virtually makes it impossible for anyone to obtain bail until the completion of the trial.

Judicial Tussle over UAPA

Delhi HC observation

• Delhi HC had highlighted that courts must be careful in employing the definitional words in Section 15 of UAPA in literal sense.
  • Section 15 of the UAPA defines “terrorist act”and is punishable with imprisonment for a term of at least five years to life, even death penalty in case of loss of life.
• Delhi HC observed that protests against Governmental and Parliamentary actions are legitimate.
• Cases under UAPA have been rising, since 2015. In 2015, totally 897 cases were filed while in 2019, 1126 have been charged under UAPA.

Judicial Tussle over UAPA

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