‘Jail is rule’: Why did a recent Supreme Court order break the liberal trend in UAPA bail cases?

In February, a two-judge bench of the Supreme Court had held, while dismissing the bail application of a man booked under the stringent anti-terror law, the Unlawful Activities (Prevention) Act, that “jail is the rule and bail is the exception in UAPA cases”.

This upends the general dictum of criminal law often echoed in courts and their decisions: bail is the rule and jail is the exception for undertrials. Indeed, it is notoriously difficult to secure bail for someone charged with an offence under the UAPA.

However, in recent years, the Supreme Court had delivered a series of progressive judgments that had not only granted bail in UAPA cases but also clarified and liberalised the legal requirements for the grant of bail in such matters.

Legal experts that Scroll spoke with suggested that the court’s February judgment – titled Gurwinder Singh vs State of Punjab – was not correctly decided to the extent that it disregarded the court’s recent liberal judgments on bail under UAPA. According to them, this judgment does not redraw the legal position on bail under UAPA and must not be taken as precedent by the court.

They agreed, though, that the grant of bail in criminal law in general and under UAPA specifically is discretionary to a significant...

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