The issue of denial of bail has been a serious issue in India. The onus of proving one’s innocence is placed on the detainee, who has no access to information or any legal aid to do so. Under the provisions of what is universally acknowledged to a draconiian law, namely the feared UAPA, many detainees associated with the struggle against the CAA and NRC have been placed under detention for over 5 years, with constant refusal of bail by, e.g., the Delhi High Court. While a former CJI has said that one of the reasons for the delay is the seeking of adjournments by the Hon. Counsel for the detainees, he did not mention that the reason for seeking this has been that the bail application has been repeatedly posted to the Court of the same judges who have dismissed the pleas. In this article by Dr. SQR Ilyas, a detailed description of this harrowing episode has been given. LRS has consistently stood for upholding the right to assembly, the right to free speech, and the protection of natural rights and for upholding human rights. We are therefore happy to reproduce this article from the Indian Express.
https://indianexpress.com/article/opinion/columns/india-needs-a-peoples-movement-against-uapa-10260238/
India needs a people’s movement against UAPA
Only then can we restore faith in the promise that justice delayed must not become justice denied
In any democracy, there should be no place for laws that trample on fundamental rights and human dignity. These laws invert justice, criminalise dissent, and erode the very principles upon which the Constitution rests.
The Delhi High Court has once again rejected the bail plea of Umar Khalid and his companions, holding that delay in trial cannot be a valid ground for bail. This decision further undermines the Supreme Court’s celebrated principle that “bail is the rule and jail is the exception”. In practice, particularly when the accused are Muslims, the principle seems to operate in reverse: Jail becomes the rule, and bail the exception.
For Umar Khalid, this marks the fifth failure in his pursuit of bail. The trial court dismissed his plea, followed by the High Court. When the matter reached the Supreme Court, the case lingered for nine months across 14 hearings, with adjournment after adjournment. Senior advocate Kapil Sibal even pleaded that he needed just 20 minutes to argue, yet the court did not accommodate him.
In normal practice, if a hearing is postponed in the Supreme Court, the case is reassigned to a new bench. Yet, in Khalid’s case, the matter repeatedly appeared before the same judge for six consecutive hearings. Faced with this, his lawyers eventually withdrew the plea, resolving to try their luck again in the lower courts. Since bench allocation is determined by the Chief Justice, it is evident that this repeated assignment was not a coincidence. Now, following the High Court’s latest rejection, the only option once again is to approach the Supreme Court.
Cases like these reveal a disturbing pattern. When the authorities know that charges are weak and unlikely to survive in ordinary trial proceedings, they invoke draconian laws such as the Unlawful Activities (Prevention) Act (UAPA). This allows them to keep accused individuals behind bars, since the severity of the charges exerts pressure on the courts to deny bail. In earlier decades, TADA and POTA served this purpose. Today, UAPA and MCOCA have stepped into their place.
Although UAPA was originally intended for terrorism-related cases, its ambit has been stretched to cover even minor offenses. More critically, it turns the principle of justice upside down. Ordinarily, every accused is presumed innocent until proven guilty. Bail is therefore a natural right. Under UAPA, however, the burden of proof shifts: At the bail stage itself, the accused must prove that they are not guilty. In effect, a mini trial takes place before any actual trial begins.
To make matters worse, the prosecution files voluminous charge sheets — often running into thousands of pages — and then adds multiple supplementary charge sheets. This delays proceedings to such an extent that even if the accused is eventually acquitted, they spend the most valuable years of their life in prison. Thus, without a conviction, the state succeeds in inflicting a punishment harsher than any sentence: The slow theft of time and liberty.
Such laws strike at the heart of the Indian Constitution. Article 21 guarantees every citizen the fundamental right to life and personal liberty. Yet under UAPA, this right is rendered meaningless.
Even when, after 15 or 20 years, an accused person is acquitted, there is no accountability for the police officers or officials who fabricated evidence and destroyed lives. By then, the victim is often too broken — physically, mentally, and financially — to pursue another long legal battle. Courts also leave no room for redress, usually ending judgments with formulations like: “The crime may have occurred, but the evidence is insufficient to prove guilt.” Rarely do courts admit that the evidence was concocted or that the accused was deliberately framed. Compensation for lost years is almost never granted.
The deeper truth is that these draconian laws are political weapons. Governments, irrespective of party, have used them to silence opponents, suppress activists, and target minorities. Congress introduced UAPA in 1967, and in 2008, Home Minister P Chidambaram expanded its scope by incorporating the harsh provisions of POTA in the aftermath of the 26/11 Mumbai attacks. Today, the BJP uses UAPA extensively, especially against Muslims and dissenting voices.
India’s regular criminal laws — the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS) — already provide ample scope to deal with crime, including terrorism. Extraordinary laws like UAPA only hand disproportionate powers to police and government, powers that are almost inevitably abused. Worse, there is no accountability mechanism in place to check such misuse.
The history of TADA (1985–1995) offers a chilling reminder: Out of 67,000 people arrested, under one per cent were convicted. POTA too met the same fate after mass resistance, but not before ruining countless lives. UAPA and MCOCA now continue this legacy under new names.
In any democracy, there should be no place for laws that trample on fundamental rights and human dignity. These laws invert justice, criminalise dissent, and erode the very principles upon which the Constitution rests.
The urgent need of the hour is a renewed people’s movement — just as India once rose against TADA and POTA — until UAPA and other draconian laws are consigned to history. Only then can we restore faith in the promise that justice delayed must not become justice denied.
The writer is a spokesperson of All India Muslim Personal Law Board, National General Secretary( Org), Welfare Party of India and father of Umar Khalid
