What The FAQ: Why is it so difficult to get bail under Section 43D(5) of the UAPA?

Father Stan Swamy was fighting for his bail for a long time. Two days before he died, Swamy had challenged Section 43D(5) of the Unlawful Activities Prevention Act (UAPA) calling it nothing but an illusion. Why does it take so long to get bail for those charged with UAPA? The answer won't matter to Stan Swamy but you might as well know it.

What is Section 43D(5) of UAPA? and what does it mean?
The Section says that, notwithstanding anything contained in the Code, no one who is accused of an offense "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". And this too will happen 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".

So what does that legal lingo mean? This section leaves very little room for judicial reasoning and makes it almost impossible to get bail if charged with UAPA.

Have the courts granted bail under this section?

The Supreme Court bench headed by CJI NV Ramana made an exception in the Union of India v K A Najeeb case in January 2021. But they also said that it is an exception. “Courts are expected to appreciate the legislative policy against the grant of bail but the rigours of such provisions will meltdown where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D(5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of the constitutional right to a speedy trial,” the Bench said. Najeeb had been in jail for four years and his trial had not begun.

In February, Telugu poet Varavara Rao was granted bail by the same Bombay HC where Swamy was pleading to. The reason — on grounds of sickness and age. While Rao is 80 and was COVID-19 positive, Swamy, 84, had Parkinson’s, heart issues, hearing issues, and had also suffered from COVID-19.

Not very long ago, on June 17, the Karnataka HC granted bail to more than 115 accused charged under UAPA for the 2020 East Bengaluru riots because that the NIA court had extended the investigation time without even hearing the accused.