The Supreme Court’s reconsideration of its own interpretation of the Unlawful Activities (Prevention) Act marks a significant, though belated, correction in the balance between state power and individual liberty. Better late than never, one might say.
The judiciary appeared trapped within the rigid framework it had itself erected through its January judgment that effectively subordinated the principle of liberty to the state’s invocation of national security.
Court revisits interpretation of UAPA
While hearing the bail petitions of former JNU student leaders Umar Khalid and Sharjeel Imam in the 2020 Delhi riots “larger conspiracy case”, the court had expressed its helplessness before Section 43-D(5) of the UAPA.
The provision virtually prohibits bail if the court believes the accused to be “prima facie” guilty. In doing so, the judiciary seemed compelled to abandon Justice V.R. Krishna Iyer’s enduring dictum that “bail is the rule and jail is the exception”.
The tragedy is not merely legal but human. Khalid and Imam have completed five years as undertrial prisoners without their trial even commencing.
Six months earlier, the court had accepted them “as alleged masterminds”, thereby foreclosing the possibility of bail. The process itself had become the punishment.
Article 21 and personal liberty
The recent shift came when Justices B.V. Nagarathna and Ujjal Bhuyan heard the bail plea of a Kashmiri accused of narco-terrorism under the UAPA.
Had the bench adhered mechanically to the “prima facie” test, the accused, too, might have languished indefinitely in prison.
Instead, the court revisited its own reasoning and acknowledged a constitutional truth that should never have been obscured: no statutory provision can override Article 21 of the Constitution, which guarantees the right to life and personal liberty.
This correction is crucial because the rule of law rests equally on another foundational principle — that every accused person is presumed innocent until proven guilty.
Concerns over prolonged incarceration
Laws such as the UAPA confer extraordinary powers on the state, allowing it to incarcerate individuals for years while investigations drag on and trials remain distant possibilities.
There is no certainty that the cases against the Delhi riots accused will conclude in one year, or even ten.
Worse, if the accused are eventually acquitted after years of imprisonment, there exists no meaningful mechanism to compensate them for lost liberty, careers, reputations and mental suffering.
The answer lies not in diluting national security concerns but in tightening the standards for invoking the UAPA itself.
Need for stricter scrutiny before invoking UAPA
The “prima facie” threshold must become a genuinely rigorous test. Governments should be required to present concrete, credible and foolproof evidence before invoking provisions that virtually extinguish the possibility of bail.
The Constitution does not permit personal liberty and speedy trial to become casualties of executive convenience. The Supreme Court’s course correction is welcome. But its moral force will remain incomplete unless its benefits reach those who have already spent years in prison without trial.
