white black legal international law journal ISSN: 2581-8503

Peer-Reviewed Journal | Indexed at Manupatra, HeinOnline, Google Scholar & ROAD




Authored By - Maya K



According to Blackstone's maxim, it is preferable for ten criminal people to get away with it than for one innocent person to suffer. It is necessary to conduct fair and just trials in order to safeguard the innocent from injustice. Trial is the procedure by which the jury can hear from both parties and make the best, impartial judgement possible in a case. He is not yet found guilty; he is merely a defendant pending the outcome of the trial. We should provide everyone the chance to improve their lives while still giving the victim enough relief, as our system of criminal justice is built on ideas of reformation. Because "justice delayed is justice denied," it must be completed within a reasonable amount of time.


After serving a maximum of 90 days in detention, an accused person has the right to bail. The UAPA Act 1967, NDPS Act 1985 and other laws are part of our criminal justice system and are designed to control irregular activities that take place within the state. These contain clauses that address the release on bail of someone accused of violating the aforementioned Acts. According to Section 43D of the UAPA of 1967, the bail can be held for up to 180 days, and if the investigating officer produces an affidavit regarding the accused's custody, the accused may be returned from judicial custody to police custody. If the accused is determined to be guilty on the surface, the court may also refuse to grant bail. The issue that the researcher seeks to address through this paper is whether the statutory provisions in these acts impede the natural law principles and fundamental rights of accused persons, as well as whether they prevent the judiciary from conducting trials in a reasonable amount of time.


Key words: Criminal Justice, Preventive Laws, UAPA, Natural Justice, Fundamental Right



The guiding principle of societal behaviour is law. According to Justinian; “law is the king of all mortal and immortal affairs, which ought to be the chief, the ruler and leader of noble and the base and thus the standard of what is just and unjust, the command of animals naturally social of what they should do, the forbidder of what they should not do[1]”. The legislation that is applied to punish offenders is known as criminal law. A type of criminal legislation called preventive detention laws is designed to forbid potential criminal action. The term preventive detention means Holding an accused in custody to prevent further harm or risk that is imposed by the accused[2]. It is a tactic used by the law to rob someone in order to prevent a future social issue. For this, no actual crime must have been committed; only a reasonable suspicion is required. Patanjali Sastry, C.J point out that “preventive detention is largely precautionary and based on suspicion[3]”. This goes against democratic principles because it makes a person's rights and liberties inactive for a while. Preventive detention laws are frequently employed in British India to put an end to riots. The British Raj enacted the first statute governing preventative detention in 1818. There were other laws allowing for preventative detention, including the Rowlett Act, which Gandhi criticised. It is the act that was once used to hold persons in custody for up to two years on the basis of suspicion. Following our independence, the writers of our constitution recognised the necessity of preventive legislation and implemented it. It should be emphasised that many of them were governed by these rules during the war for independence.


“The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof[4]”.


There are currently numerous laws governing preventive detention, including the Maintenance of Internal Security Act (MISA), 1971; the Foreign Exchange Conservation and Prevention of Smuggling Activities Act (COFEPOSA), 1974; the Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985; the Prevention of Terrorist Activities Act (POTA), 2002; and the Unlawful Activities (Prevention) Act, 1967, on which we will focus in this article.


Even in Indian colonial history, the UAPA has its origins. The definition of unlawful assembly in the Criminal Law Amendment Act of 1908 is applied to the organisations that fought for freedom in opposition to them. It is possible that this is where the concept of UAPA originated. A National Integration Council meeting was presided over by Sri Jawaharlal Nehru, the country's then-prime minister, in 1962, following the country's independence. In that case, it was determined that restricting fundamental rights was necessary for the good of the country. Subsequently, the 16th Amendment was passed, establishing the mechanism for doing so. In 1962, the Sino-Indian conflict arose, and at the same time, internal riots for the self-determination of Tamil Nadu from the Union of India were started under the leadership of C. N. Annadurai, leader of Dravida Munnetta Kazhagam (DMK). The former leads to the declaration of emergency under Article 352 of the Constitution on the basis of external aggression, and both of these situations created an urgency for creating UAPA 1967 before the lapse of the emergency period.


The opposition has consistently opposed UAPA, which has been tabled multiple times in parliament. After a thorough discussion, it received approval to protecting the nation's integrity. It can be argued to be a revision of both the Prevention of Terrorism Act (POTA), which was repealed in 2004, and TADA, the Terrorist and Disruptive Activities (Prevention) Act, which was allowed to expire in 1995. It was initially adopted in 1967 by the Srimati Indira Gandhi-led administration. 2008 saw the first changes to the law, while 2019 saw the most recent ones. The recent reported cases under this statute and the proposed changes have made it a contentious issue in society.



It is an act which is against the unlawful activities done by associations or individual against the state which includes seven chapters. The said act gives enormous power to central government regarding these matters. The said act is applicable to not only citizens of the state but also to foreigners, public servants whatever they may be, persons in ships and aircrafts, registered in India, whatever they may be[5].  Central government if have the opinion that an organisation is unlawful, then they can declare it as unlawful through a notification in official gazette by providing the reason for it. If the government feels that providing reasons will affect the security of nation, then it can be avoided[6]. For the validity of such notification declaration from a tribunal constituted under the act which will preside a person of qualification as district judge, appointed by central government, is necessary by providing that if central government is in the opinion of immediate action, then the notification will be in force from the time of publication in official gazette[7]. This act not only consider the unlawful activities that have been committed but also consider that may arise. The words such as “likely to threaten”[8] and “likely strike terror in people”[9] shows the intention of legislature to detain people on the ground of suspicion.


“The concept of the offence of 'terrorist act' under section 15 of the UAPA essentially ig postulates a threat or likely threat to unity, integrity, security and sovereignty of India or striking terror amongst people in India or in foreign country or to compel the Government of India or the Government of a foreign country or any other person to do or abstain from doing any act[10]”.


The bail may period can be extended up to 180 days and also the court can reject the bail if prima facie the accused is found as guilty[11]. Right to bail is a fundamental right for accused under article 21 of the constitution. It was emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a chargesheet[12]. Supreme court in its verdict stated that:


“The right to bail under Section 167(2) proviso (a) of CrPC thereto is absolute. It is a legislative command and not court's discretion. If the investigating agency fails to file charge- sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds[13].”

According to section 45 of the act, to take cognizance of a case, the court needs permission from the central government[14]. In General Officer Commanding vs Cbi & Anr[15] say that broad and literal sense `cognizance’ means taking notice of an offence as required under Section 190 Cr.P.C. `Cognizance’ indicates the point when the court first takes judicial notice of an offence. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge[16]. According to the said act court needs permission from central government to take cognizance. Through this section the trail itself is barred. Right to trail, which is also a part of article 21 of the constitution is also infringed.



The Delhi Police has informed the Delhi High Court that out of the 98 total cases registered under the Unlawful Activities Prevention Act (UAPA) from 2005 to August 7, 2022, they have investigated 83 and filed chargesheet in 40 within 90 days[17].Mere possession of “jihadi literature” does not amount to an offence unless there also exists material about the “execution” of such an ideology, a Delhi court told the National Investigation Agency (NIA) while hearing an Unlawful Activities Prevention Act (UAPA) case[18]. On September 28, 2022, the Madras High Court rejected bail to two Srilankan nationals who were charged with attempting to siphon off money from a Mumbai bank account of a deceased widow in order to support the LTTE, who were charged under UAPA[19]. The court in Union of India Vs. K. A. Najeeb[20], High Court granted bail to the accused who was charged under UAPA. High Court stated that a under trail person cannot be kept in custody for too long where the trail is not in near future. But supreme court by emphasising on National Investigation Agency Vs. Johor Ahmad Shah Watali[21], stated that;


Bail proceedings under the special enactment were distinct and the courts are duty bound to refuse bail where the suspect is prima facie believed to be guilty. It was further contended that in numerous prior rounds before the Special Court and the High Court, there emerged enough reasons to believe that the respondent was, prima facie, guilty of the accusations made against him”. Stanislaus Lourdu swamy, popularly known as Stan Swamy, who was charged under UAPA died in custody etc are some of the recent facts which invokes the discussion regarding the said act.



 “.…. But why do you want to put it in the Constitution? Why not leave it to Parliament. The person detained may be quite innocent. After all, the machinery of the State is composed of officials and we know the mind of the officials. Officials, after all, are officials. They have a particular line to follow and from that point of view it is very likely that even under a democratic government, most of the laws would be 'abused. Therefore, under the existing circumstances, a detenu, if he is detained on mere suspicion, should be properly protected. That is my point[22]


The framers of the constitution, who were adding provisions of preventive detention has a fear that the said act may be misused by the authority. The UAPA, which is for punishing the unlawful activities against the state, is felt as using inappropriate manner.


“… In the 2008 amendment, some of the draconian provisions of the POTA were again brought back. As a result, who are made the victims? The Muslim youth were the most vulnerable victims of the draconian provisions.  The draconian provisions of the UAPA are used to deny the normal process of justice, while there is no time-bound procedure for the judicial process. In some cases, these young men have been incarcerated for ten to fourteen years as under-trials and then finally acquitted by the courts as being innocent[23].


The provisions relating need of permission from central government to take cognizance and rigid provisions against bail etc will affect the concept of speedy trail and natural justice. Until the judicial verdict announce, a person charged under offence is only an accused and not convict. So, the provision which creates long detention period, even in the absence of proper judicial process is violation against criminal justice.





[1] V. D. MAHAJAN, JURISPRUDENCE AND LEGAL THEORY 48 ( Eastern Book Company, Lucknow 1987).

[2] THE LAW DICTIONARY, PREVENTIVE DETENTION Definition & Meaning - Black's Law Dictionary (thelawdictionary.org)  (last visited on Nov. 10, 2022).

[3] State Of Madras vs V.G. Row.Union Of India 1952 AIR 196, 1952 SCR 597.

[4] Khudiram Das vs The State Of West Bengal & Ors 1975 AIR 550, 1975 SCR (2) 832.

[5] Unlawful Activities Prevention Act 1967, § 1, NO. 37, Acts of Parliament, 1967.

[6] Id. at § 3.

[7] Id. at § 3 and § 4.

[8] Id. at § 15.

[9] Id. at § 15.

[10] Lt. Col. Prasad Shrikant Purohit vs The State Of Maharashtra CRIMINAL APPEAL NO. 1448 OF 2017

(Arising out of Special Leave Petition (Crl.) No. 3716 OF 2017)

[11] Id at § 43D

[12] M Ravindran vs The Intelligence Officer REFERENCE: S.L.P. (Criminal) No. 2333 of 2020.

[13] Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New Delhi [(1989) 3 SCC 532 : 1989 SCC (Cri) 612 : AIR 1990 SC 71.

[14] Unlawful supra note 6 at § 45

[15] CRIMINAL APPEAL NO. 257 of 2011.

[16] State Of W.B vs Mohammed Khalid 1995 AIR 785, 1995 SCC (1) 684.

[17] DAILY PIONEER Filed chargesheets in 40 of 98 UAPA cases: Police to HC (dailypioneer.com) (Last visited on Nov. 11, 2022).

[18] THE INDIAN EXPRESS UAPA case: Possessing jihadi literature not offence, there must be material about executing terror acts, Delhi court tells NIA | Cities News,The Indian Express (Last visited on Nov. 11, 2022).

[19] SABRANG INDIA Section 43D UAPA: Accused not heard, report of the prosecution doesn’t ‘need to be shared’ under the law | SabrangIndia (Last visited on Nov. 11, 2022).

[20] (2021) 3 SCC 713.

[21] (2019)5 SCC 1

[22]  SHRI R. K. SIDHWA, CONSTITUTIONAL ASSEMBLY DEBATES ON SEP. 15, 1949, PART Ii, VOLUME IX, INDIAN KANOON ( Last access Nov 10, 2022 9:30 p. m) Constituent Assembly Debates On 15 September, 1949 Part Ii (indiankanoon.org)

[23] SK. SAIDUL HAQUE (BARDHMAN-DURGAPUR), Loksabha Debates Further discussion on the motion for consideration of the Unlawful Activities (Prevention) Amendment Bill, 2011 moved by Shri Sushil Kumar Shinde on 29.11.2012 (Bill Passed) ( last access Nov 11, 2022, 08:44 am) Further Discussion On The Motion For Consideration Of The Unlawful ... on 30 November, 2012 (indiankanoon.org)



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