Kirti Patil, KLE Law College, Navi Mumbai, pursing T.Y.LLB during my Internship at LeDroit India.
Abstract
The Unlawful Activities (Prevention) Act, 1967 (UAPA) has emerged as India’s primary anti-terror legislation, but its rigid bail framework and expansive scope have invited significant constitutional scrutiny. Section 43D(5) virtually eliminates judicial discretion in bail matters, resulting in prolonged incarceration without conviction. The Supreme Court’s interpretation in National Investigation Agency v. Zahoor Ahmad Shah Watali further restricted trial courts, reinforcing the idea of “punishment by process.” At the same time, the blurred line between “terrorist activity” and democratic dissent has led to prosecutions of journalists, students, and activists, raising concerns about misuse. Judicial interventions, such as Union of India v. K.A. Najeeb and the Delhi High Court’s protest-related bail orders, reflect a gradual shift towards restoring balance between security imperatives and individual rights. This paper critically examines bail challenges under the UAPA and the wider conflict between safeguarding sovereignty and protecting constitutional freedoms of expression, association, and dissent.
Introduction
The UAPA is the backbone of India’s counter-terrorism regime. Enacted in 1967 to curb separatist tendencies, successive amendments have transformed it into a far-reaching statute empowering the state to ban organisations, designate individuals as terrorists, and restrict bail. While the government justifies such measures as vital in addressing global and domestic terror threats, critics point out the democratic costs of such extraordinary powers.
Among its most debated provisions is Section 43D(5), which reverses the conventional presumption of bail under criminal law. By requiring courts to deny bail if the charges appear “prima facie true,” the law prevents detailed judicial scrutiny of evidence at the bail stage. As a result, under-trials often remain incarcerated for years while trials move slowly, raising concerns about “punishment without conviction.”
The controversy is aggravated when UAPA is invoked against students, civil rights activists, academics, or journalists whose activities, though critical of the state, fall within democratic freedoms. This conflation of dissent with terrorism undermines constitutional guarantees under Article 19. Critics argue that vague and expansive definitions of “unlawful activity” and “terrorist act” make the statute prone to political misuse, while the state maintains that preventive laws are indispensable in counter-terrorism.
Thus, the central issue is the balance between sovereignty and liberty—how to distinguish genuine acts of terror from legitimate democratic opposition. Courts have increasingly been tasked with drawing this line, and recent decisions suggest a cautious judicial recalibration in favour of individual rights without compromising national security.
Bail under UAPA
The bail regime under UAPA departs sharply from ordinary criminal procedure. Unlike the CrPC, 1973, where bail is generally the norm, UAPA makes release on bail extremely difficult.
- Section 43D(5): The Bail Barrier
- Bail is barred if the court, on a preliminary reading, finds the accusations “prima facie true.”
- Judges cannot thoroughly test the reliability of evidence; they are bound to accept the prosecution’s case at face value.
Key Challenges in Securing Bail
- Statutory restrictions under Section 43D(5).
- Judicial precedents such as Watali limiting judicial discretion.
- Prolonged pre-trial detention.
- Expansive definitions facilitating misuse.
- Burden indirectly shifting onto the accused.
- Delay in trials and procedural inefficiencies.
The ‘Terror’ vs. ‘Dissent’ Debate
The definitional breadth of terms like “unlawful activity” (Section 2(o)) and “terrorist act” (Section 15) enables the state to prosecute political opposition under anti-terror law.
- Dissent as Terror: Peaceful protests, critical journalism, and student activism have increasingly been labelled as threats to sovereignty, creating a chilling effect on free speech.
- Genuine Terror: The state, however, argues that these provisions are essential to combat organised and transnational terror networks that threaten national integrity.
The challenge lies in distinguishing between disruptive democratic dissent and coordinated violent acts intended to destabilise the state.
Constitutional Concerns
- Article 19 – Overreach under UAPA restricts free expression and democratic participation.
- Article 21 – Lengthy incarceration without adequate judicial oversight undermines due process and personal liberty.
- Doctrine of Separation of Powers – Excessive reliance on the executive’s claims of national security risks judicial abdication of constitutional responsibility.
Conclusion
The UAPA exemplifies the enduring conflict between civil liberties and national security. While extraordinary powers may be justified in tackling terrorism, their misuse against political dissent erodes constitutional values. Equating criticism with terrorism delegitimises both the law and democratic discourse. Ultimately, bail jurisprudence under UAPA tests the resilience of India’s constitutional order—whether courts will continue to act as guardians of liberty or whether the spectre of “terror” will perpetually overshadow the sanctity of dissent.
