India’s justice system is founded on liberty, due process, and the assumption of innocence. But in recent times, acts such as the Unlawful Activities (Prevention) Act (UAPA) have faced serious criticism for doing the very opposite, detaining people for years at a stretch without trial, refusing them bail, and converting the administration of justice into a form of punishment itself.
At AR Shaikh Advocates, we are in the trenches of criminal and constitutional defense—and we know from experience how UAPA bail processes can wreck lives. Here’s a closer examination of what’s going wrong, and what needs to change urgently.
So, What Makes UAPA Different?
The UAPA was first enacted in 1967, intended to address terrorism and threats to national security. Its scope progressively enlarged over time, particularly after the 2008 Mumbai attacks.
But here’s the catch: UAPA empowers the government and police with sweeping powers, with not much scope for judicial intervention.
One of the most contentious aspects? Section 43D(5)—which makes giving bail almost an impossibility.
❌ Section 43D(5) and the Bail Crisis
According to this section:
Courts can’t grant bail if they feel there’s a “prima facie” case—even if the evidence is weak or tentative.
Consequences:
- Presumption of guilt, not innocence
- Years spent in jail without trial
- Judges can’t exercise discretion
- Lawyers struggle an uphill battle to establish innocence even before trial
This is not justice—it’s default incarceration.
Who’s Impacted the Most?
UAPA charges are not necessarily employed for hardened criminals or terrorists, contrary to popular understanding.
They’ve been employed against:
- Student protestors
- Journalists covering sensitive stories
- Academics, activists, and political critics
These are people who are usually jailed without conviction, waste years of their life, and then walk free without pay.
Example: In most high-profile UAPA cases, individuals were acquitted after spending years in prison, with courts observing a paucity of tangible evidence.
⚖️ Reforms Are Not Only Needed—They’re Paramount
This is how India can make its criminal justice system fairer, without sacrificing national security:
✅ 1. Uphold the Presumption of Innocence
The justice system needs to safeguard the fundamental tenet that the accused are innocent until conviction—under anti-terror laws as well.
✅ 2. Grant Bail Where There’s No Violence or Threat
All UAPA accused are not violent offenders. Judges must be permitted to grant conditional or default bail where necessary.
✅ 3. Hasten Trials
In case of denial of bail, trials have to be conducted quickly. Detention of an individual for 5–7 years without trial is a rights violation.
✅ 4. Simplify Legal Definitions
Unclear terms such as “unlawful activity” are subject to abuse. Definitions have to be specific, narrow, and justiciable.
✅ 5. Establish Review Mechanisms
There should be an independent review agency to sift UAPA charges prior to trials even being initiated. This can forestall abuse and wrongful arrest.
⚖️ What If You Are Charged Under UAPA?
Do not give up hope. At AR Shaikh Advocates, based in Ahmedabad, we deal with:
- Bail applications under UAPA
- Filing writ petitions atthe High Courts and the Supreme Court
- Quashing FIRs or resisting unjust charges
- Awarding compensation for wrongful detention
Whether you are a person or a relative of someone wrongfully detained, we will assist you through every step.
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