Faculty Seminar | Right to Bail under UAPA: Emerging Jurisprudence from the Appellate Courts in India

This week’s Faculty Seminar will focus on the paper ‘Right to Bail under UAPA: Emerging Jurisprudence from the Appellate Courts in India.’

Speaker:

Radhika Chitkara, Visiting Assistant Professor, NLSIU

About the Paper:  

India’s primary anti-terror law, the Unlawful Activities Prevention Act (UAPA), encodes special procedures for investigation and prosecution which deviate from ordinary criminal procedure and fair trial guarantees. Human rights organizations have long alleged that these special procedures enact process as punishment by increasing discretionary police powers, prolonging detention without bail, eventually culminating in low rates of acquittal. The UAPA enables this under Section 43D by statutorily extending periods of pre-trial detention and police custody, and raising a bar against bail in case there are reasonable grounds to believe that the allegations against accused are prima facie true. For non-citizens, the UAPA absolutely bars the right to bail. Such prolonged detention before conviction on a prima facie standard of proof undermines a cardinal principle of criminal jurisprudence and fair trial, the presumption of innocence. This creates an exception to ordinary law under the Code of Criminal Procedure, where ‘bail is a norm, jail is an exception’, recognizing the right to bail as an integral part of liberty and due process under Article 21. Where constitutional courts have upheld earlier anti-terror laws for fair trial violations, burgeoning jurisprudence relating to special bail provisions under UAPA reveal a shift in the legal site of struggle from constitutional to criminal courts in the defence of liberty and due process under anti-terror laws. This article seeks to survey this emerging bail jurisprudence under UAPA to clarify the scope of exception from the right to bail under ordinary law, and outlines contemporary contestations on jurisdiction, burdens of proof and the nature of judicial scrutiny. The article further subjects this jurisprudence to a tentative theory of fair trial as separation of powers, to analyse the application of judicial, procedural and democratic checks and balances over executive discretion in the defence of the right to bail.

Here, I am mapping prior precedent under TADA-POTA, and emerging doctrine under UAPA, through a deep dive into legal databases (SCC and Manupatra), documenting legal reportage of unpublished Supreme Court and High Court orders, and monitoring trial court proceedings in select ongoing UAPA prosecutions. As such, this is ongoing research, and this draft may more appropriately be considered as a working paper which maps issues, landmark cases and some preliminary findings focusing on the right to bail. While some references to High Court judgments have been included in this working draft, these are not yet exhaustive. Lastly, I also plan to further map precedent under TADA-POTA, which are widely used to settle legal controversies under UAPA.