From “Bail Is The Rule” To Role Based Incarceration: The Changing Boundaries Of Liberty Under UAPA

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Christo Varghese, BA LLB (Hons.), Tamil Nadu National Law University

ABSTRACT

The Unlawful Activities (Prevention) Act (UAPA), 1967, poses a major threat to the long standing “Bail is the Rule, Jail an Exception policy”. This article will look at the changing jurisprudence of bail in India with particular reference to Gulshifa Fatima v. State (2026). The Court has created a gap between the “ideological drivers” and “local level facilitators” in criminal conspiracy cases by the introduction of a theory known as hierarchy of roles. In this paper, it can be analyzed how Section 43D (5) of the UAPA interacts with Article 21 constitutional guarantees. It also examines how the precedents apply to the issues of extended incarceration. In the end, the paper concludes that although role-based differentiation is a means of judicial discretion, it needs to be balanced with the imminent risk of pre-trial punishment to protect the sanctity of individual liberty.

Keywords: UAPA, Section 43D (5), ideological drivers, local level facilitators, hierarchy of rules.

207. FROM “BAIL IS THE RULE” TO ROLE BASED INCARCERATION- THE CHANGING BOUNDARIES OF LIBER

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