Recently, in a matter relating to the Unlawful Activities (Prevention) Act, 1967 ('UAPA'), a Full-Judge Bench of the apex court comprising MR Shah, CT Ravikumar, and Sanjay Karol, JJ. overruled its 2011 order in Arup Bhuyan v. State of Assam, which is highlighted upon the judgments of Indra Das v. State of Assam and State of Kerala v. Raneef. The 2023 judgment has further upheld Section 10(a)(i) of UAPA. The terrorism-related statute has always been subjected to criticism and strict scrutiny for its precarious application in balancing the pursuit of national security and civil liberties. The entire table in the debate is turned towards the loopholes existing in this law failing to notice the plethora of attacks that it had prevented in the country. This article majorly delves into 'why UAPA is indispensable as law when the security of the country is the question.'

Alleged issues with UAPA

There are multiple provisions due to which UAPA often makes the news; these provisions are considered as Draconian. However, the need for such laws is often ignored by the advocates and activists who raise their voices against the statute. These issues and the need for the provisions in question are further explained. These issues generally revolve around Bail Provision under UAPA and its assumed intricacies.

Bail Provision under UAPA

Section 43D(5) of the UAPA allows for the detention of individuals accused of offenses under the act for extended periods of time without bail which can be violative of the right to liberty and due process of law. This can lead to a situation where individuals are punished without being found guilty, contrary to the principles of natural justice, fairness, and basic structure doctrine.

Understanding that the UAPA cases involve huge stakes, such as the security of the state and public order, investigations in these cases are complex and time-consuming. Therefore, a balance is sought to be achieved in the matter of bail provision of these matters between individual freedom and the security of the State. However, the court has already held in Kiran Bedi, Director General, Bureau of Police Research and Development v State of Uttar Pradesh that the bail provision in UAPA strikes a balance between the rights of the accused and the need to investigate and prevent serious offenses such as terrorism effectively.

The court has also emphasized that the provision is subject to various safeguards, including the requirement that the investigating agency provides regular updates to the court and the accused person regarding the progress of the investigation. This portrays an example of how the government and courts have taken measures to keep individual rights in check while imposing laws such as UAPA.

While section 43D(5) of the UAPA may appear to be a departure from the standard criminal procedure, it has been upheld as being consistent with the laws guiding the constitution of India by the Supreme Court in the 2023 judgment Arup Bhuyan v. State of Assam. It was further held that law is not dealt with under the doctrine of criminal procedure per se but under the doctrine of due process of law. Thus, the principle followed by UAPA does not lie under the criminal statutes of India but as a special provision.

With the gravity of the situation, it is necessary to follow the due process of law, i.e., to keep the accused, against whom a prima facie case is made out, under custody till the agencies complete their investigation, to keep the accused in check and preventing any harm that may be caused by the person accused herein.

The accused charged under UAPA is not an ordinary person charged under a criminal provision of a country; the accused is considered a potential harm to public order and the security of the state at large and such a person once arrested and a prima facie case is made out against him then the person cannot be allowed to roam freely in the country, as it may possess a grave danger to the society.

The Supreme Court, in the case of The Superintendent v. Ram Manohar Lohiya, stated that if there is an apprehension of public disorder, then a restriction can be imposed in order to remove the apprehension. Even Incitement to commit violent crimes like murder would endanger the security of the State. Thus, in State of Bihar v. Shaila Bala Devi, the law ordered that even signs, words, or visual representations that cause or can cause incitement of violence fall squarely within reasonable restrictions. Therefore, not granting bail till the period of investigation as long as it may be is justifiable for the greater good.

UAPA and due process of Law

Debating upon UAPA's constitutionality, certain objections are bound to arise. The main reason for such an act to come into existence was to keep in mind the benefit of the community at large. A slight slip in the process and multiple lives are at stake, this crucial factor is always taken into consideration while dealing with this law. Such one procedure is due process of law.

Due process of law: Concerning the strict provisions of UAPA, the question that often arises in the minds of people is how the due process of law is followed in this particular act per se.

Due process of law also incorporates judicial review, the right to legal representation, the right to bail, the right to appeal, and the independent judiciary, and this all is available to a person who is tried under this act. Since UAPA is a law that deals with the security of the state and public order, therefore it presides over individual liberty. Even law is not above the security of the state; therefore, it is bound to come with certain reasonable restrictions.

Even if it takes a considerably long time to ascertain the accused's guilt, it is necessary to handle such a situation with due care, as stated above, UAPA deals with the sovereignty of the country, which stands at the top of our Constitution. Now, even though the due process of law is used in UAPA, what needs to be understood is that UAPA deals with activities related to terrorism, which is an exceptional situation, thus putting it into the ambit of special legislation and, thereby, special legislation takes over the general legislation thus shifting the burden of proof on the accused. This stance was solidified in P. N.Krishnalal v. Government of Kerala, where the court observed that the presumption of innocence is not a constitutional guarantee and can be dispensed with by legislative imperatives and action.

The reverse onus of proof under UAPA requires the prima facie evidences to deny the grant of bail. Recently, in the case of Gurwinder Singh v. State of Punjab & Another, the Supreme Court held that Mere Delay In Trial is No Ground To Grant Bail When Grave Offences Are Involved.

Conclusion:
The stringent provisions of the Unlawful Activities (Prevention) Act, 1967 (UAPA) are essential for safeguarding national security and preventing acts of terrorism. While critics often highlight concerns regarding the bail provision under UAPA, it is crucial to recognize the complex nature of terrorism-related cases and the need to balance individual rights with the security of the state.

The bail provision under Section 43D(5) of the UAPA allows for extended detention without bail, which has been upheld by the Supreme Court as consistent with the principles of due process of law. This provision ensures that individuals accused of serious offenses, such as terrorism, are not released prematurely, potentially posing a threat to public safety.

Additionally, the reverse onus of proof under sections 43E and 43D(5) of UAPA places the burden of proof on the accused, considering the exceptional nature of terrorism-related activities. This approach, endorsed by the Supreme Court, ensures that individuals charged under UAPA are held accountable for their actions, even if it means facing prolonged detention pending investigation and trial.

In light of recent judicial pronouncements, such as the case of Gurwinder Singh v. State of Punjab & Another, where the Supreme Court emphasized the gravity of offenses involved in UAPA cases, it is evident that mere delay in trial cannot be grounds for granting bail. Similarly, in P. N. Krishnalal v. Government of Kerala, the court acknowledged that legislative imperatives may override the presumption of innocence in cases involving national security.

In essence, while ensuring the protection of individual rights, the stringent provisions of UAPA are indispensable for maintaining national security and preventing acts of terrorism. The balance struck by the judiciary in upholding these provisions underscores the imperative of stringent measures in combating threats to the sovereignty and safety of the nation.

Written By: Abdul Haseeb, National Law University Lucknow