Source: The Indian Express Relevance: GS II (Government Policies and Intervention), GS III (Security forces and their mandate)

Context: Underlining that the often quoted phrase, ‘bail is rule, jail is the exception’, does not find any place in the stringent anti-terror Unlawful Activities Prevention Act (UAPA), the Supreme Court on February 7 denied bail to Gurwinder Singh, an accused in an alleged “Khalistan module”.

What is meant by ‘Bail, not jail’: 

The principle was first laid down by the apex court during the landmark judgment in the State of Rajasthan V. Balchand alias Baliya case in 1978 ,when Justice V.R. Krishna Iyer had said, “The basic rule may perhaps be tersely put as ‘bail, not jail’.”

Unlawful Activities Prevention Act (UAPA):

  • Originated in 1967 to combat anti-national and separatist activities.

  •  Updated several times, with the latest in 2019, introducing measures against cyberterrorism, individual terrorists, funding terrorism, and seizing properties.

  •  Empowers the National Investigation Agency (NIA) to investigate and prosecute under UAPA across India.

  •  Includes severe punishments like the death penalty and life imprisonment for terrorism-related offenses.

  •  Allows holding suspects for up to 180 days without filing charges or starting a trial, and makes bail difficult unless innocence is proven.

  •  Defines acts undermining India's sovereignty, promoting secession, or challenging territorial integrity as illegal.

  •  Describes terrorism as actions jeopardizing India's or any other country's unity, security, or economic stability, including those causing or intending harm to lives or property.

Arguments in Favor:

  • Enhanced Security: Strengthens national security by rigorously addressing terrorism and its financing, helping to prevent terror-related activities.

  • Legal Framework for Cyberterrorism: Provides a structured legal approach to combat the evolving threat of cyberterrorism.

  • Empowers Law Enforcement: Gives law enforcement agencies like the NIA the necessary powers to effectively investigate terrorism cases nationwide, ensuring a coordinated response.

  • Deterrent Effect: The act's stringent penalties, including the death sentence and life imprisonment, serve as a strong deterrent against engaging in terrorist activities.

  • Preventive Measures: Allows for preventive detention of suspects, which can thwart potential terrorist attacks before they occur.

  • National Unity: Targets activities that threaten India's sovereignty and integrity, promoting national unity and stability.

  • Comprehensive Coverage: Addresses a broad spectrum of terror-related offenses, including financing, planning, and executing terrorist acts, ensuring no aspect of terrorism is left unchecked.

  • International Compliance: Helps India align with international counter-terrorism protocols and obligations, enhancing global security cooperation.

  • Protection of Economic Interests: Safeguards the country's economic stability by criminalizing acts that threaten economic security.

  • Specialized Investigation: The NIA's authority to handle UAPA cases ensures specialized, informed investigations, leading to more effective legal proceedings against terrorism.

Arguments against:

  • Civil Liberties: Critics argue it infringes on civil liberties and human rights due to broad definitions of terrorism and unlawful activities.

  • Extended Detention: Allows for up to 180 days of detention without charge, raising concerns about potential misuse against political dissidents and activists.

  • Bail Restrictions: Stringent bail conditions make it exceedingly difficult for accused individuals to obtain bail, leading to prolonged pre-trial detentions.

  • Overbroad Powers: Grants law enforcement agencies wide-ranging powers, which could be prone to misuse against individuals or groups in dissent.

  • Legal Process Delays: The act's provisions can lead to significant delays in the legal process, affecting the accused's right to a speedy trial.

  • Freedom of Expression: Seen as a tool that could suppress freedom of speech and peaceful assembly under the guise of maintaining national security.

  • Potential for Abuse: The act's vague terms give the government potential to label various forms of political dissent as terrorism, leading to abuse of power.

  • International Criticism: Has drawn criticism from international human rights organizations for potentially violating international human rights standards.

  • Impact on Minorities: There are concerns that the act could be disproportionately used against minority communities.

  • Undermines Democracy: By potentially targeting political opposition and activists, the act is seen as undermining democratic principles and the rule of law.

Judiciary’s View:

  • The Supreme Court in Arup Bhuyan v. State of Assam (2011) stated that merely being a member of a banned group does not constitute guilt unless there is involvement in violence or acts causing disorder.

  •  In The People's Union for Civil Liberties v. Union of India (2004), the court emphasized that undermining human rights to combat terrorism is counterproductive.

  • During Union of India v. K A Najeeb (2021), the Supreme Court declared that despite UAPA's bail restrictions, constitutional courts may grant bail if an accused's basic rights are infringed.

  • The Mazdoor Kisan Shakti Sangathan v. Union of India (2018) verdict affirmed the right to protest against government actions, stressing that such protests should remain peaceful and nonviolent.

Although the UAPA is an effective weapon in India’s war on terrorism, questions remain on how it may affect personal freedoms. Proponents emphasize counterterrorism and national security; opponents draw attention to possible rights breaches and a low conviction rate. For a more successful counterterrorism strategy in India, careful revisions, a dedication to due process, and the prudent application of the UAPA are necessary to strike a balance between security and civil liberties.

Advait IAS