A legal band-aid on a much deeper wound

The Andrabi order's criticism of indefinite pre-trial incarceration is welcome. Justice requires a thorough interrogation of the UAPA, and of all laws that facilitate jailing for long periods based on mere accusations

- Gautam Bhatia

The interim judgment is concerned with detention only and beyond it lies the larger question of whether the UAPA itself is constitutional.

(SUPREME COURT OF INDIA)

For a long time, it has been clear that there is something fundamentally broken about the operation of the Unlawful Activities Prevention Act (UAPA).

Ostensibly designed to effectively prosecute people accused of terrorist offences, the Act has, instead, become a tool for indefinite pre-trial incarceration of people against whom no charges have been proven.

Two things contribute to this.

The first is the general malaise of India’s criminal justice system, where criminal trials take years (or even decades) to complete. There are structural reasons for this, which we cannot enter into here.

The second is that the UAPA sets the threshold for the grant of bail extremely high, requiring judges to deny bail if they feel that the police has made out a prima facie case against the accused (that is, going by only the materials provided by the police). A combination of these two factors means that once accused of a UAPA offence, individuals are condemned to long years in jail without trial.