Section 43D(5), sets the bar for bail so high under UAPA

Context

Section 43D(5) of the Unlawful Activities Prevention Act (UAPA) was challenged in the Bombay High Court.

Why is the provision challenged?

• Section 43D(5) of the Act makes a grant of bail virtually impossible under UAPA since it leaves little room for judicial reasoning.

About the Section 43 D(5) under UAPA

• The section says that an accused person shall not be released on bail or his bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code thinks that there are reasonable grounds for believing that the accusation against such person is prima facie true.

What is the test for denying bail?

• 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 analyze evidence or circumstances but look at the “totality of the case” presented by the state.

When grant of bail can be given?

• The grant of bail under UAPA is given when the accused had undergone incarceration for a significant period even as it recognized that bail under UAPA was an exception.
• 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 wholesale breach of the constitutional right to a speedy trial.