Section 43D (5) of the Unlawful Activities Prevention Act (UAPA)

Section 43D (5) of the Unlawful Activities Prevention Act (UAPA)

Subject – Government Schemes

Context – Just two days before his death, Stan Swamy had moved the Bombay High Court challenging Section 43D (5) of the Unlawful Activities Prevention Act (UAPA) — a provision Swamy termed “illusory”

Concept –

• The provision makes grant of bail virtually impossible under UAPA since it leaves little room of judicial reasoning.
• In the case of Zahoor Ahmed Shah Watali, the Supreme Court in 2019 confirmed that courts must accept the state’s case without examining its merits while granting bail.
• In string of rulings, however, courts have taken an alternative reading of this provision, emphasising the right to a speedy trial and raising the bar for the state to book an individual under UAPA.
• The UAPA, enacted in 1967, was strengthened by the Congress-led UPA government in 2008 and 2012.
• The test for denying bail under the UAPA is that the court must be satisfied that a “prima facie” case exists against the accused.
  • In 2019, the SC defined prima facie narrowly to mean that the courts must not analyse evidence or circumstances but look at the “totality of the case” presented by the state.
• Section 43D(5) reads: “Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.
  • “Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.”

Law of Bail under UAPA

• Both regular bail and bail by default like CrPC are available under UAPA with some alterations under section 43 D of UAPA.
• The Regular Bail in UAPA can be granted by a competent magistrate under section 437 CrPC and by the high court or district and sessions court under section 439 of CrPC.
• The provisions for default bail is also available under section 167(2) CrPC read with section 43D(2) of UAPA, after 30 days of police custody and 90 days of judicial custody, subjected to delay in filing of charge-sheet.
• UAPA does not provide any specific conditions to be satisfied to grant bail.

Curious case of Section 43D(5)

• It is only applicable to offences punishable under chapter IV and VI of the act i.e. offences related to terrorist acts and terrorist organizations.
• It has a proviso which basically explains condition when bail shall be denied, i.e. if reasonable grounds exist for accusations to be prima-facie true and such decision shall be based on charge sheet or case diary.
• The second part of proviso explains the burden over prosecution and the prosecution had to prove that reasonable grounds exist for accusations believed to be prima facie true.