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6 Jan 2026·Source: The Indian Express
8 min
Polity & GovernancePolity & GovernancePolity & GovernanceEXPLAINED

SC Bail Rulings Create Offender Hierarchy, Impacting Liberty

Supreme Court's stricter bail approach for UAPA cases raises concerns about fundamental right to liberty.

SC Bail Rulings Create Offender Hierarchy, Impacting Liberty

Photo by Josh Withers

Background Context

Bail is a crucial aspect of the criminal justice system, balancing individual liberty with the state's interest in maintaining law and order. Laws like UAPA were enacted to deal with specific threats like terrorism, incorporating stringent provisions for bail to prevent further unlawful activities.

Why It Matters Now

The ongoing debate around the balance between national security and individual rights, especially in the context of anti-terror laws, makes the Supreme Court's interpretation of bail provisions critically relevant for human rights and judicial oversight.

Key Takeaways

  • •SC judgments suggest a "hierarchy of offenders" in bail.
  • •Bail for UAPA accused faces a higher threshold.
  • •Gravity of offense and national security are key considerations.
  • •Concerns about undermining presumption of innocence.
  • •Potential for prolonged pre-trial detention.
  • •Debate on balancing individual liberty and state security.

Different Perspectives

  • •Critics argue that the SC's approach erodes fundamental rights and due process.
  • •Proponents emphasize the necessity of stringent measures for national security threats.

Related Concepts

Right to Liberty (Article 21)Presumption of InnocenceUnlawful Activities (Prevention) Act (UAPA)SeditionJudicial ReviewDue Process
What Happened This explained article analyzes recent Supreme Court judgments, particularly concerning the Delhi Riots case, which appear to establish a "hierarchy of offenders" in bail denials. The Court's observations suggest a distinction in how bail is approached for those accused of serious offenses, especially under stringent laws like the Unlawful Activities (Prevention) Act (UAPA), compared to other criminal cases, potentially impacting the fundamental right to liberty. Context & Background The right to bail is a crucial aspect of the criminal justice system, rooted in the principle of "presumption of innocence" and the fundamental right to liberty (Article 21). However, laws like UAPA, designed to combat terrorism and unlawful activities, often contain stringent bail provisions that make it difficult for accused persons to secure release. The Supreme Court's recent pronouncements have added a new layer of interpretation to these provisions, leading to concerns about their impact on individual freedoms. Key Details & Facts The article highlights that the Supreme Court, in cases related to the Delhi Riots, observed that certain offenses, particularly those involving "terrorist acts" or "unlawful activities," require a higher threshold for bail. The Court has emphasized that the gravity of the offense and its potential impact on national security or public order must be considered. This approach, critics argue, creates a de facto hierarchy where individuals accused under UAPA face a significantly tougher path to bail, even before conviction, compared to those accused of other serious crimes. The article also mentions the "black box" nature of some evidence presented in such cases, making it difficult for the defense to challenge. Implications & Impact This judicial trend has significant implications for fundamental rights, particularly the right to liberty and fair trial. It could lead to prolonged incarceration of individuals accused under UAPA, even if eventually acquitted, raising concerns about due process. It also places a heavy burden on the accused to prove their innocence at the bail stage, potentially reversing the traditional burden of proof. For the state, it might be seen as strengthening its hand in combating serious threats, but at the cost of individual liberties. Different Perspectives Critics argue that this approach undermines the spirit of bail jurisprudence and the presumption of innocence, creating a two-tiered justice system. They contend that stringent bail conditions can be misused to suppress dissent or target specific communities. Proponents, often from the state's side, might argue that such measures are necessary to tackle grave threats to national security and public order, where the potential harm outweighs individual liberty concerns at the initial stages. Exam Relevance This topic is extremely important for UPSC GS Paper 2 (Polity & Governance - Judiciary, Fundamental Rights, Government Policies and Interventions, Internal Security). It involves the interpretation of constitutional provisions (Article 21), specific laws (UAPA), and the role of the judiciary in balancing national security with individual liberties, making it a high-yield topic for both Prelims and Mains.

Key Facts

1.

SC judgments on Delhi Riots case establish a 'hierarchy of offenders' in bail denials

2.

Higher threshold for bail under UAPA for 'terrorist acts' or 'unlawful activities'

3.

Gravity of offense and national security are key considerations for bail

UPSC Exam Angles

1.

GS Paper 2: Polity & Governance - Judiciary, Fundamental Rights, Government Policies and Interventions

2.

GS Paper 3: Internal Security - Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges, basics of cyber security; money-laundering and its prevention.

3.

Constitutional Law: Article 21 (Right to Life and Personal Liberty), Judicial Review, Separation of Powers.

4.

Legal Frameworks: Unlawful Activities (Prevention) Act (UAPA), Code of Criminal Procedure (CrPC), Bail Jurisprudence.

Visual Insights

Supreme Court's Evolving Stance on Bail under UAPA

This timeline illustrates key Supreme Court judgments that have shaped the interpretation of stringent bail provisions under the Unlawful Activities (Prevention) Act (UAPA), leading to the current concerns about an 'offender hierarchy' and its impact on liberty.

The tension between national security laws and fundamental rights has been a constant theme in Indian jurisprudence. The Supreme Court plays a crucial role in balancing these competing interests, with its interpretations significantly impacting individual liberties.

  • 1967Unlawful Activities (Prevention) Act (UAPA) enacted to deal with secessionist movements.
  • 2004UAPA significantly amended post-POTA repeal, incorporating anti-terrorism provisions and strengthening its scope.
  • 2008Further amendments to UAPA post-26/11 Mumbai attacks, expanding the definition of 'terrorist act' and enhancing state powers.
  • 22019UAPA Amendment allows the central government to designate individuals as terrorists, increasing its stringency.
  • 2019*NIA v. Zahoor Ahmad Shah Watali* case: SC held that courts must accept prosecution's case as 'prima facie true' at bail stage under UAPA Section 43D(5), making bail extremely difficult.
  • 2021*Union of India v. K.A. Najeeb* case: SC granted bail, emphasizing that prolonged incarceration without trial infringes Article 21, even under UAPA, if trial is unlikely to conclude soon. Signaled a slight shift.
  • 2023*Vernon Gonsalves & Arun Ferreira v. State of Maharashtra* case: SC granted bail, reiterating the *Najeeb* principle of balancing Article 21 with UAPA's stringent provisions, especially in cases of prolonged detention.
  • 2025 (Early)Delhi Riots related cases: SC observations suggesting a 'higher threshold' for bail in serious offenses like UAPA, creating concerns about an 'offender hierarchy' in bail denials.
  • 2025-2026Ongoing debates and potential new judgments further clarifying the delicate balance between national security and individual liberty under UAPA.

Practice Questions (MCQs)

1. Consider the following statements regarding the Unlawful Activities (Prevention) Act (UAPA): 1. It was originally enacted to deal with secessionist movements and was later amended to include provisions against terrorism. 2. The Act mandates that bail cannot be granted if the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. 3. The Supreme Court, in *Union of India v. K.A. Najeeb*, held that the constitutional right to speedy trial under Article 21 can override statutory restrictions on bail under UAPA in cases of undue delay. Which of the statements given above is/are correct?

  • A.1 and 2 only
  • B.2 and 3 only
  • C.1 and 3 only
  • D.1, 2 and 3
Show Answer

Answer: D

Statement 1 is correct. UAPA was enacted in 1967 to deal with unlawful associations and was significantly amended in 2004, 2008, and 2012 to include terrorism-related provisions. Statement 2 is correct. Section 43D(5) of UAPA contains this stringent bail provision, making it difficult for accused persons to secure bail if a prima facie case is established. Statement 3 is correct. The Supreme Court in *K.A. Najeeb* case indeed held that prolonged incarceration without trial would violate Article 21 and could be a ground for bail even under UAPA's stringent provisions.

2. In the context of criminal justice in India, which of the following statements best describes the principle of "presumption of innocence"?

  • A.An accused person is considered innocent until proven guilty beyond a reasonable doubt by the prosecution.
  • B.Bail must be granted in all cases unless the accused poses an immediate threat to national security.
  • C.The burden of proof lies with the accused to demonstrate their innocence at the bail stage.
  • D.The state is always presumed to act in good faith, and its accusations are prima facie true.
Show Answer

Answer: A

Option A correctly defines the "presumption of innocence," a cornerstone of criminal jurisprudence, where the prosecution bears the burden of proving guilt. Option B is incorrect. While bail is a norm, it's not absolute and has conditions, especially for serious offenses. National security is one factor, but not the sole exception. Option C is incorrect and describes the reverse burden of proof, which is an exception found in stringent laws like UAPA, but not the general principle of presumption of innocence. Option D is incorrect. While the state acts through its agencies, its accusations must be proven, and there's no blanket presumption of prima facie truth for all accusations.

3. Consider the following statements regarding the role of the judiciary in balancing national security and individual liberty: 1. The principle of judicial review allows courts to examine the constitutionality of laws, including those related to national security. 2. The doctrine of "judicial deference" suggests that courts should generally defer to the executive's assessment in matters of national security. 3. In India, the Supreme Court has consistently held that national security concerns can never be a ground to restrict fundamental rights guaranteed under Article 21. Which of the statements given above is/are correct?

  • A.1 only
  • B.1 and 2 only
  • C.2 and 3 only
  • D.1, 2 and 3
Show Answer

Answer: B

Statement 1 is correct. Judicial review is a fundamental aspect of India's constitutional framework, allowing courts to strike down laws that violate the Constitution. Statement 2 is correct. Judicial deference is a recognized principle where courts show restraint in reviewing executive decisions, especially in sensitive areas like national security, due to the executive's specialized knowledge and responsibility. However, this deference is not absolute and is subject to constitutional limits. Statement 3 is incorrect. While Article 21 is fundamental, its scope is not absolute. The Supreme Court has, in various judgments, acknowledged that national security and public order can be reasonable grounds for restricting certain fundamental rights, provided such restrictions are proportionate and meet the 'procedure established by law'. The current news itself highlights how national security concerns are being weighed against Article 21 in bail matters.

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