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22 Jun 2021
They could strengthen the struggle against the draconian law, but access to judiciary remains restricted for thousands incarcerated under it.


In the past week, three seminal judgments involving the Unlawful Activities (Prevention) Act, 1967 (UAPA) have been delivered. The first pertains to the grant of regular bail to three student activists in the Delhi riots case of 2020 — Asif Iqbal Tanha, Devangana Kalita, and Natasha Narwal — where the Delhi High Court held that the police had tried to build a case on inferences and conjectures and that it failed to show its accusations were prima facie true. The second deals with the acquittal of Mohammad Irfan Gaus and Ilyas Mohammad Akbar in a nine-year-old UAPA case in Nanded, Maharashtra, by a special NIA court, for lack of evidence. Both men had been implicated in a larger LeT-led terror conspiracy against politicians and journalists. The third involves the grant of default bail by the Karnataka High Court to Muzamil Pasha and others, involving 115 Muslim men among 350 who were arrested in the aftermath of rioting and police firing in 2020. The court objected to the fact that the police had been granted an extension on the 90-day period for filing of a chargesheet without the accused being given notice or an opportunity to be heard. While these judgments are welcome developments, they also remind us that thousands continue to languish under the UAPA’s arbitrary regime.

Originally enacted in 1967, the UAPA was amended to be modelled as an anti-terror law in 2004 and 2008. It deviates from ordinary legal procedures, creating its own “exceptional” regime where constitutional safeguards of the accused are curtailed to become either non-existent or inaccessible. The period of detention is increased, enlarging the period of custody prior to which default bail cannot be granted; and regular bail is subject to the satisfaction of the judge that no prima facie case exists. This makes bail a near impossibility. Bail apart, the dilatory trial procedures ensure lengthy periods of pre-trial incarceration for the accused who are presumed guilty of heinous terror crimes. In other words, regardless of the decision in the case, once accused under UAPA, a person is condemned to imprisonment.

The brazenness of the UAPA’s regime is exemplified in the state’s own official figures. Between 2016 and 2019, the period for which UAPA figures have been published by the National Crime Records Bureau (NCRB), a total of 4,231 FIRs were filed under various sections of the UAPA, of which 112 cases have resulted in convictions. While the number of acquittals is low, at 187, the real picture emerges in the pendency rates. The pendency rate at the level of police investigation is very high, at an average of 83 per cent, a fact that denotes that chargesheets are filed by the police on an average in about 17 per cent of the total cases taken up for investigation. The rate of pendency at the level of trial is at an average of 95.5 per cent, which means that trials are completed every year in less than 5 per cent cases, signifying the reasons for long years of undertrial imprisonment.

Earlier this year, in February, the Supreme Court offered a remedy. In Union of India v K A Najeeb, the Court held that despite restrictions on bail under the UAPA, constitutional courts can still grant bail on the grounds that the fundamental rights of the accused have been violated. In Najeeb, the accused had spent over five years in custody. The Court held that the rigours of UAPA bail restrictions “will melt down where 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 Asif Iqbal Tanha v State of NCT of Delhi, the Delhi High Court took this reasoning a step further, holding that it would not be desirable for courts to wait till the accused’s rights to a speedy trial are entirely vitiated before they are set at liberty. Courts should exercise foresight, and in cases with hundreds of prosecution witnesses where a trial will not see a conclusion for years to come, courts should apply the principles laid down in Najeeb.

But the different outcomes in cases like those of Asif Tanha and Mohammad Gaus underscore the differential access to legal remedies such as those offered by Najeeb. Mohammad Gaus stated that after he was released on regular bail in July 2019, he was unaware of the fact that the NIA had appealed and secured a stay against his bail order in the Supreme Court. Even when accused persons have access to legal representation, UAPA jurisprudence more often than not leads to bizarrely unjust outcomes, such as in the recent house arrest judgment delivered by the Supreme Court in Gautam Navlakha v NIA. The Supreme Court held that house arrest fell within the ambit of judicial custody but refused to count the days spent by Navlakha in house arrest as custody for the purpose of granting him default bail. In a different vein, the vacation bench of the SC recently directed that the Delhi riots bail judgments shall not be treated as a precedent till it decides the state’s appeal against the judgments.

Nonetheless, even within the draconian constraints of the UAPA, much can be achieved if a responsive and independent judiciary follows the basic principles of natural justice and due process. But access to the judiciary remains woefully limited for most of the thousands incarcerated under this widely-used law — as per the government’s figures, 5,922 were arrested under the UAPA between 2016 to 2019 alone. Thus, it is hoped that the struggle against the UAPA will gain strength from the judiciary and that a larger public intervention will enable the repeal of the law.

Published on 22 June 2021 in the print and online edition of The Indian Express: