For a long time, it has been clear that there is something fundamentally broken about the operation of the Unlawful Activities Prevention Act (UAPA). Ostensibly designed to effectively prosecute people accused of terrorist offences, the Act has, instead, become a tool for indefinite pre-trial incarceration of people against whom no charges have been proven.
Two things contribute to this.
The first is the general malaise of India’s criminal justice system, where criminal trials take years (or even decades) to complete. There are structural reasons for this, which we cannot enter into here.
The second is that the UAPA sets the threshold for the grant of bail extremely high, requiring judges to deny bail if they feel that the police has made out a prima facie case against the accused (that is, going by only the materials provided by the police). A combination of these two factors means that once accused of a UAPA offence, individuals are condemned to long years in jail without trial.
Unfortunately, the basic architecture of the UAPA — which itself is borrowed from previous anti-terror statutes such as the infamous TADA, which, in turn, borrowed it from colonial-era Emergency laws — has largely been sustained by the courts. Within this overall architecture, however, there has emerged a further tussle within the judiciary.
One set of decisions attempts to, at the very least, mitigate some of the worst effects of the UAPA, and provide the constitutional guarantees of life and personal liberty some minimal room to breathe.
Another set of decisions, however, has the effect of turning the UAPA into a rigid charter for endless jail-time.
One crucial arena of contest has been the issue of delay. As noted here, criminal trials in India — and especially, trials under the UAPA — take years or decades to complete. This flies in the face of the guarantee to a fair and speedy trial under Article 21 of the Constitution. In such an event, how long is too long, when it comes to spending time in prison without trial?
In 2021, in a judgment called KA Najeeb, the Supreme Court acknowledged that at some undefined point, pre-trial incarceration violates constitutional rights to life and personal liberty. The Supreme Court did not provide a specific time when this was so; perhaps this is for the best, as one can easily see how providing a specific time would encourage judges to simply deny bail as long as that threshold time had not yet passed. In general, however, courts have often tended to grant bail on grounds of delay in trial at around the five-year-mark. It is important to note that this is by no means a fair or a just system: Five years of one’s life is a long time to lose.
However, certain judgments after the Najeeb case have attempted to dilute even this minimum standard, by noting that even indefinite pre-trial incarceration may be overridden if the accusations are grave and serious enough (of course, before a trial, one only has the police’s word for the seriousness or gravity of accusations).
In this context, the Supreme Court’s recent holding in Andrabi is an important reaffirmation of the minimum standard. In that judgment, a two-judge bench of the Supreme Court reaffirmed that Najeeb stands for the proposition that a long delay in a trial triggers an independent, constitutional right to liberty.
While the exact length of time may vary, this right cannot be defeated simply by repeating the accusations against the individuals concerned.
In a rare move — perhaps signalling how uneasy some of the judges of the Court are with the deployment of the UAPA — the bench criticised recent decisions by other judges of the Court, such as the one denying bail to Umar Khalid and Sharjeel Imam in the “Delhi riots cases” for how, in effect, these judgments diluted the force of the constitutional guarantee.
The judgment in Andrabi is consistent with constitutional principles, and seeks to introduce an element of humanity within the framework of the UAPA. Soon after, however, another bench of the Court referred this same question, to be resolved by a larger bench. One hopes that the Andrabi court’s recognition that indefinite pre-trial custody is an affront to constitutional principles, will be upheld.
At the same time, it is important to reaffirm that this minimum standard does not transform the UAPA into an instrument of justice: The Andrabi judgment is, in the end, a band-aid on a much deeper wound.
Justice requires a thorough interrogation of the basic framework of the UAPA, and of all laws that facilitate the jailing of individuals for long periods based on mere accusations alone. Until that happens, judgments like Andrabi — although they are important in what they do, and must be defended — will remain necessary, but insufficient.
Gautam Bhatia, a Delhi-based advocate, is the author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution. The views expressed are personal
