SC Judgment Review 2021: Terror

In 2021, the Supreme Court issued 865 judgments. In a series of posts, we conduct a thematic review of the most important judgments of the year. Here, we discuss two judgments where the Court engaged with bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

Section 43D(5) of the UAPA prohibits the Court from granting bail if, after consideration of the case diary and the investigation report, there are ‘reasonable grounds’ for believing that the accusation is prima facie true. The provision makes it nearly impossible for an arrestee to receive bail, often leaving them in custody for years while awaiting the possibility of acquittal at a trial.  

1. K.A. Najeeb v Union of India

The petitioner Najeeb had been in custody since 2015. He had approached the Special Court under the National Investigation Agency Act, 2008 (NIA) and the High Court of Kerala six times between 2015 and 2019. However, charges were only framed in 2020, and 276 witnesses had not yet been examined. A three-judge Bench of the Supreme Court held that bail could be granted on the grounds of a violation of the Right to Life. In this instance, there was excessive delay in granting bail. Najeeb had already served over five years, while 13 of his co-accused had received a sentence extending to over  eight years. 

2. Thwaha Fasal v Union of India 

In 2019, Thwaha Fasal was arrested for being a member of (s 20, 38 UAPA) and supporting (s 39 UAPA) a terrorist organisation. He was caught with books, pamphlets and images supporting the CPI (Maoist) — a terrorist organisation listed in the UAPA. The Court drew a distinction between associating or supporting a terrorist organisation, and associating or supporting in furtherance of the activities of a terrorist organisation. The Court granted bail to Thwaha Fasal on the grounds that his involvement did not actively further CPI (Maoist) activities. 

On December 7th, the Supreme Court upheld the Bombay High Court’s decision to grant bail to Sudha Bharadwaj, one of the 16 activists arrested in the Bhima Koregaon violence. The Bombay High Court had held that the Additional Sessions Judge who extended her custody beyond 90 days under the UAPA did not have the power to grant such an extension. She should have been brought before a special judge under the NIA.  A constitutional challenge to Section 43D(5) is pending in the Supreme Court