New Delhi: In a significant verdict on the draconian Unlawful Activities (Prevention) Act (UAPA), the Supreme Court on Monday, May 18, granted bail to Syed Iftikhar Andrabi, who had been incarcerated for more than five years and eleven months on charges under this law and the Narcotic Drugs and Psychotropic Substances (NDPS) Act.
In doing so, as the media have widely reported, the court expressed “serious reservations” regarding several aspects of the apex court judgement through which it denied bail to activists Umar Khalid and Sharjeel Imam, who have been incarcerated, in jail, since 2020.
Besides this observation that has given rise to much public commentary given the clearly split verdict of India’s highest court on the granting of bail under UAPA, the bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan most notably observed in the same judgment that conviction rates in UAPA cases across India remained abysmally low, ranging between 1.5% and 4% from 2019-2023. Even worse still, conviction rates in Jammu and Kashmir have stayed below 1%.
The court therefore noted that these statistics suggest a high probability of acquittal in such cases, reported Live Law.
“For all India figures, we have 2% to 6% conviction, meaning thereby that there is 94% to 98% possibility of acquittal in such cases in the country. In so far as the Union Territory of Jammu and Kashmir is concerned, the annual rate of conviction is always less than 1%. It means that at the end of the trial there is 99% possibility of acquittal in such cases,” the bench observed.
The present case and bail conditions
Who is Syed Iftikhar Andrabi? A village-level worker for the Rural Development department in Kupwara district of Jammu and Kashmir, who was taken into preventive detention in August 2019, following the reading down of Article 370, but was released after the high court declared the detention legally untenable. Thereafter, he was subsequently arrested in June 2020 in connection with a National Investigation Agency (NIA) case alleging narco-terrorism activities.
Interestingly, his appeals for bail were denied by both the Special NIA Court as well as the Jammu and Kashmir high court. The prosecution alleged that on information provided by the appellant, drugs and cash were recovered from a co-accused’s premises, further claiming that his phone records linked him to operatives in Pakistan.
According to the May 18, Supreme Court judgment, no evidence was directly recovered from Andrabi’s person or premises, directing to release the appellant on bail, subject to conditions imposed by the special NIA court. The conditions stipulate that the appellant must deposit his passport and appear before the Handwara police station once every fortnight. He is also prohibited from threatening or influencing witnesses.
The UAPA has long since been criticised as an instrument of crushing dissent in India, with numerous activists and journalists slapped with cases under the draconian rule. In Kashmir, the act has seen some of its most controversial use.
Previous analyses of this counter-terror law may be read here, here and here.
Low rates of conviction
Making a reference to official data presented before the parliament by the Union Ministry of Home Affairs, drawn from National Crime Records Bureau (NCRB) figures covering 2019-2023, the bench stated that the all-India conviction rate in UAPA cases falls between 1.5-4%.
What this means that a person charged under the act faces a 96% to 98.5% probability of acquittal. The court added, “In so far as the Union Territory of Jammu and Kashmir is concerned, the annual rate of conviction is always less than 1%. It means that at the end of the trial there is 99% possibility of acquittal in such cases.”
Hence, referring to the high rate of exoneration for the accused in such cases, the court emphasised that “bail is the rule and jail the exception.” Invoking an earlier ruling, Union of India versus K.A. Najeeb, the judgement reiterated that Section 43D(5) of UAPA cannot be used in isolation to deny bail and does not serve as a blanket instrument for prolonged pre-trial detention.
The Order passed by the Supreme Court of India may be read here.
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