Bail As The Exception, Prison As The Rule: The UAPA’s Subversion Of Constitutional Liberty And The Supreme Court's Ambivalent Response
- IJLLR Journal
- May 26
- 2 min read
Kshitij Thakre, Institute of Law, Nirma University
ABSTRACT
This article critically examines Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 through a constitutional lens as the said section imposes stringent condition on the grant of bail upon the persons accused under the country’s primary counter-terrorism statute. It argues that the provision of the code under question departs from the core idea of right to personal liberty guaranteed under Article 21 of the Constitution of India, Right to Speedy Trial as recognised in the case of Hussainara Khatoon v Home Secretary, State of Bihar as well as a settled principles of criminal justice system of ‘Innocent Until Proven Guilty’ by producing a structurally unconstitutional regime of prolonged pretrial incarceration as has been interpreted by the Hon’ble Supreme Court in National Investigation Agency v Zahoor Ahmed Shah Watali. The article further examines the doctrinal corrective principles as introduced by the Hon’ble Supreme Court in Union of India v KA Najeeb and Prabir Purkayastha v State (NCT of Delhi), wherein, while the court identified the contributions of the procedural aspect of legislation in question as necessary however, constitutionally incomplete.
Relying upon the data pertaining to national incarceration as published by the National Crime Records Bureau & the principles of international human rights law, the article demonstrates how the operational consequences of the UAPA’s bail framework stand in inherent contravention of Preamble’s foundational commitment to justice & liberty. In conclusion, the article proposes various legislative & judicial reforms which could help in restoring the constitutional proportionality to the legislation without compromising upon its object of ensuring national security.
Keywords: UAPA, bail jurisprudence, Article 21, pretrial detention, constitutional liberty, counter-terrorism statute, judicial reforms
