The grant of bail is subject to rigorous conditions as stated in Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967.

Following the devastating Bombay terror attacks, the Union government passed the Unlawful Activities Prevention Amendment Act in 2008. This Amendment included Section 43D (5).

The provisions of Section 43D (5) of UAPA, 1967 state that regardless of anything mentioned in the Code, any individual accused of an offence punishable under this Act shall not be granted bail or allowed to be released on their own bond if they are in custody, unless the Public Prosecutor has been given a chance to be heard regarding the request for release on bail.

However, if the Court, upon examining the case diary or the report submitted under section 173 of the CrPC, finds reasonable grounds to believe that the accusation against the person is likely to be true, then such accused person shall not be granted bail or released on their own bond.

Section 43D (5) of the Unlawful Activities Prevention Act (UAPA), 1967 deals with the issue of granting bail to individuals accused of offences under the Act. This provision imposes strict conditions for bail, particularly for those charged with terrorism-related offences.

Essentially, this provision places the burden of proof on the accused to prove their innocence and show that they will not engage in any unlawful activities if granted bail. This shifts the traditional burden of proof from the prosecution, making it more difficult for those accused under the UAPA to obtain bail.

The inclusion of this provision reflects the legislative intent to prioritize public safety and national security over an individual's right to liberty in cases involving terrorism-related offences. By mandating that certain conditions must be met before granting bail, Section 43D (5) aims to prevent potential threats to society and ensure that those accused of serious offences remain in detention until proven innocent. This is in contravention to the general legal principle that an accused will be presumed innocent until he is proven guilty.

The UAPA enforces the Law of Bail, which allows for both regular and default bail, with some modifications outlined in section 43 D (5). In cases governed by the UAPA, regular bail can be obtained from a competent magistrate under section 437 of CrPC or from the high court or district and sessions court under section 439 of CrPC.

Additionally, the option for default bail is also available under section 167(2) of CrPC, in conjunction with section 43D (2) of UAPA, after 30 days of police custody and 90 days of judicial custody, provided there is a delay in filing the charge-sheet. Unlike other laws, UAPA does not specify any other conditions that must be met in order to be granted bail save and except the conditions mentioned in section 43D (5) 0f the UAPA.

The utilization of phrasing in Section 43D (5) proviso - 'shall not be released' as opposed to the phrasing in Section 437(1) of CrPC - 'may be released' - indicates the Legislature's intention to prioritize imprisonment over bail. This observation was made by the Supreme Court while dismissing a petition filed by an alleged member of the banned organization 'Sikhs for Justice' led by US-based Khalistan supporter Gurpatwant Singh Pannun. Justices M M Sundresh and Aravind Kumar stated that the traditional concept in bail jurisprudence, where courts must lean towards the oft-quoted principle - 'bail is the rule, jail is the exception' - unless circumstances warrant otherwise, does not hold weight under the UAPA.

Overall, Section 43D (5) of the UAPA plays a crucial role in shaping the bail process for individuals charged under the Act, setting a high standard for the grant of bail and reflecting the stringent nature of anti-terrorism laws in India.

Flaws in Section 43D (5) of UAPA:
The Unlawful Activities (Prevention) Act, 1967 (UAPA) includes provisions in Section 43D (5) that limit the availability of bail for individuals accused of offences under the Act. However, as with any legal provision, there may be potential flaws or areas of ambiguity that could be exploited or contested. Here are some possible loopholes or concerns with this provision:

• Subjectivity in "Reasonable Grounds to Believe": The language used in the provision, stating that bail shall not be granted if there are reasonable grounds to believe the accusation is likely true, allows for subjective interpretation. This could result in varying opinions among judges.
   
• Abuse of Discretion: The requirement for the Public Prosecutor to be consulted before bail is granted adds an extra level of discretion to the process. There may be concerns about potential misuse of this discretion by prosecutors, particularly if they are biased or acting in bad faith.
   
• Shift in Buden of Proof: The absence of safeguards and due process, coupled with the burden of proof being shifted to the accused, undermines the presumption of innocence and enables abuse of authority.
   
• Due Process Concerns: Denying bail without proper consideration of the individual circumstances of the case could raise concerns about due process. Each individual who is accused holds the entitlement to a just trial and the assumption of innocence unless proven guilty. Denying bail could potentially violate these rights if not justified adequately.
   
• Potential for Misuse: The strict restrictions on bail could potentially be misused by authorities to unfairly target individuals or groups for political or other reasons. There may be concerns about the Act being used to suppress dissent or opposition under the guise of national security.
   
• Challenges to Constitutionality: There may be challenges to the constitutionality of such provisions, particularly in relation to their compatibility with fundamental rights guaranteed under the Constitution, such as the right to personal liberty and the right to a fair trial.
   
• Disproportionate impact: The provision may disproportionately affect certain groups, such as minorities or marginalized communities, who already face institutional biases within the criminal justice system. This could lead to unfair treatment and further marginalization of these groups.
   
• Lack of Bail Conditions: The provision does not include any specific bail conditions that could be used to mitigate potential risks posed by releasing the accused on bail. This limited flexibility could create issues in cases where there is evidence to suggest that the accused may flee or interfere with the investigation.

Overall, while Section 43D (5) of the UAPA aims to prevent individuals accused of serious offences from being released on bail without proper consideration, there are potential loopholes and concerns that may be addressed to ensure fair and just application of the provision in line with principles of justice and the rule of law.

Court Judgments:

• In the case of Angela Harish Sontakke v. State of Maharashtra, Sontakke was detained for almost five years on charges of promoting separatist Maoist ideology through the Golden Corridor Committee, a banned group associated with the CPI-Maoist. A Bench comprising Justices Gogoi and Pant granted Sontakke bail in 2016, considering the length of time she had already spent in custody and the likelihood of a speedy trial.
  
  This decision was made despite the stringent conditions for bail under Section 43D (5), based on the Court's ruling in the 1996 Shaheen Welfare Association case. This ruling stated that such strict bail conditions in special criminal laws can only be justified if a speedy trial is ensured. If there is an unreasonable delay, it would violate the accused's rights under Article 21 and bail must be granted. This same precedent was also followed in the case of Sagar Tatyaram Gorkhe, one of the accused in the Bhima Koregaon case, who was granted bail in 2017.
   
• In the legal proceedings of NIA v. Zahoor Amhad Shah Watali in 2019, Justice Khanwilkar, writing on behalf of himself and Justice Rastogi, delivered the first interpretation of Section 43D (5). The 2019 Watali judgment established a narrow scope for the Court's discretion in granting bail, stating that the level of satisfaction required by the Court to determine a prima facie case for bail is lower under the UAPA compared to other criminal laws.
  
  Furthermore, the Court cannot delve into the merits and drawbacks of the case when evaluating bail. This essentially means that the Court must accept the version of events presented by the NIA, making it difficult to obtain bail after the NIA has pressed charges as considering any evidence that may prove the accused's innocence would be seen as an assessment of the case's merits.
   
• In June 2021, the Delhi High Court granted bail to three student activists, in the case of State of NCT of Delhi v. Devangana Kalita, who were arrested for allegedly inciting the North-East Delhi violence under the UAPA. The High Court stated that while it cannot discuss the merits of the case during bail proceedings, as per the Watali case, it is unable to take into account the inferences deduced by the NIA from the evidence presented in the charge sheet. Therefore, the Bench must differentiate between the actual evidence and the inferences made by the NIA.
  
  This case was a rare occurrence where bail was granted because the NIA failed to establish a prima facie case against the accused. The usual trend, as mentioned above, is to grant bail due to delays in the trial, which results in the accused spending years in custody before being granted bail. The Supreme Court did not interfere with the bail order, but it did stay the application of the judgment in regards to the interpretation of Section 43D (5). The High Court's ruling cannot be used as a precedent until the Supreme Court decides on its validity.
   
• In November 2021, a group consisting of two lawyers and a journalist has filed a petition with the Supreme Court in which they challenge the constitutional validity of Section 43D (5). This section, which grants extensive powers to the National Investigation Agency (NIA), was used to book the petitioners in relation to their online comments about the violence against religious minorities in Tripura.
  
  The petitioners argue that the provision is too broad and ambiguous, and that it has a 'chilling effect' on the fundamental right to free speech. Following the petition, a three-judge Bench led by Chief Justice of India Ramana has directed the Tripura police to refrain from taking any coercive measures against the accused. Additionally, the Bench has also issued a notice to the Union government to respond to the challenge on the constitutionality of Section 43D (5).
   
• The Supreme Court has clarified in the 2011 Arup Bhuyan v. State of Assam case that membership in a banned organization alone does not automatically result in guilt under the UAPA. It is necessary for the individual to be involved in violent actions or inciting chaos in order to face charges.
   
• In the 2021 Union of India v. K A Najeeb case, the Supreme Court emphasized the responsibility of the judiciary in protecting fundamental rights and stated that bail can be granted even under strict UAPA conditions if those rights are violated.
   
• In the 2020 NIA v. Zahoor Ahmad Shah Watali case, the Supreme Court restricted courts from extensively examining prosecution arguments during UAPA bail hearings, stressing the need for a balanced approach between national security and individual rights.
   
• In the case of Thwaha Fasal and Allan Shuaib v. Union of India, who were accused of having ties to the Communist Party of India (Maoist), the Supreme Court granted bail due to lack of permission to prosecute under Section 20 and insufficient evidence.
   
• In the case of Vernon Gonsalves v. State of Maharashtra in 2023, the Supreme Court departed from the previous Watali ruling regarding the 'prima facie true' standard for granting bail and instead stressed the importance of thoroughly examining evidence.
   

Conclusion:
Despite its effectiveness in combating terrorism, the UAPA raises concerns about its impact on personal freedoms and fair procedures. While some supporters emphasize national security needs and the success in countering terrorism, others criticize the potential for rights abuses and the low conviction rate.

To achieve a balance between security and civil liberties, some careful amendments, following due process, and a wise implementation of the UAPA are necessary. Reforms that align the law with constitutional principles and global human rights norms can enhance India's counterterrorism efforts while safeguarding fundamental freedoms. However, the alleged misuse of the UAPA poses a serious threat to democracy and civil liberties in India.

Originally intended to combat terrorism, its vague provisions have allegedly been exploited to target dissent and suppress political and ideological opposition. Urgent reforms may be needed to prevent ideological repression and protect constitutional rights. While the judiciary has displayed a commitment to safeguarding individual liberties, meaningful reform may be necessary to address loopholes in the law.

This may be achieved by amending the law, shifting the burden of proof, establishing robust review mechanisms, and using the law judiciously without any discrimination based on ideology, political leanings, caste, colour and community.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565