JAIL AND BAIL UNDER UAPA Syllabus GS Paper 2 – Governance)

Context: Underlining that the oft 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.”

Law under Unlawful Activities Prevention Act (UAPA)

• Restrictions on Bail: Section 43D (5) of the Act imposes limitations on the release of a person accused of certain offenses.
• Public Prosecutor's Role: The provision stipulates that no bail or self-bond release is permitted unless the Public Prosecutor is given an opportunity to be heard on the release application.
• Exception in Release Conditions: Even if the accused is in custody, release on bail or self-bond is not allowed if the court believes there are reasonable grounds for considering the accusations as prima facie true.
• Prima Facie Assessment: The law places the responsibility on the accused to convince the court, based on the police version, that it is unreasonable to believe the accusations are prima facie true.
• Shifting Onus and the UAPA Framework: This provision shifts the burden onto the accused, challenging the traditional presumption of innocence until proven guilty, particularly within the framework of the Unlawful Activities (Prevention) Act (UAPA).

Narrowing the Room for Bail

• Supreme Court's 2019 Ruling: In 2019, the Supreme Court, led by Justice A M Khanwilkar in a two-judge bench, made a significant ruling in the case of Zahoor Ahmed Shah Watali v NIA.
• Limited Examination in UAPA Bail Granting: The ruling emphasized that when granting bail under the Unlawful Activities (Prevention) Act (UAPA), courts should refrain from examining the evidence and instead accept it at face value.
• Broad Probabilities Standard: The apex court clarified that the court's role is to record a finding based on broad probabilities regarding the accused's involvement in the stated offense or otherwise.
• Appeal Against Delhi High Court Ruling: The Supreme Court's decision came in response to an appeal against a Delhi High Court ruling by a bench headed by Justice S Muralidhar, which had granted bail to a Kashmiri businessman.
• Arduous Task Post Charges Framing: After charges are framed, the court highlighted that the accused might face a challenging task in convincing the court that, despite the framing of charges, the presented materials do not establish reasonable grounds for believing the accusation is prima facie true in order to secure bail.