Abstract:
This paper critically examines the structural flaws in India’s criminal justice process when dealing with national security offences, focusing on the interplay between the Unlawful Activities (Prevention) Act (UAPA) and the recently enacted Bharatiya Nagarik Suraksha Sanhita (BNSS). The analysis demonstrates that while the BNSS promises modernization and procedural streamlining, these reforms are superficial when measured against the extraordinary powers exercised under the UAPA. Section 43(D) of the UAPA is shown to entrench a regime where extended pre-trial detention, restricted access to evidence, and lowered bail thresholds undermine fundamental rights to liberty and the presumption of innocence guaranteed by Article 21 of the Constitution. The paper details how the UAPA allows police greater custody periods, denies meaningful judicial scrutiny, and shifts the burden of proof onto the accused, creating a procedural void not filled by the new BNSS framework.
Through comparative analysis of custody, bail, and the so-called “half ground” provisions concerning undertrial prisoners, the limitations and exclusions faced by those charged under special laws are brought to light. The very low conviction rate under the UAPA, juxtaposed with its harsh pre-trial detention practices, suggests systemic failures that jeopardize justice and liberty. The paper concludes by proposing legislative reforms—establishing statutory compensation for wrongful incarceration, actualizing the principle that “bail is the rule, jail is the exception,” and instituting upper limits on pre-trial detention—that are needed to restore balance in India’s criminal justice system. The study ultimately argues that meaningful reform must tackle the structural features that perpetuate long-term incarceration without trial, to protect individual liberty even amid legitimate state security concerns.
Introduction
The Indian criminal justice system has long struggled to strike a balance between national security and individual liberty. Ordinary criminal procedure is grounded in constitutional commitments to fairness, proportionality, and the presumption of innocence. National security laws, however, function separately from the ordinary laws, and in case of conflict, the special laws will prevail. The clearest example of this shift is the Unlawful Activities (Prevention) Act (UAPA). What began as a law to regulate unlawful associations has evolved into a comprehensive anti-terrorism statute. It allows the State to detain individuals for extended periods, restrict access to bail, and initiate prosecution without the evidentiary thresholds required under general criminal law. Together, these departures create a procedural framework that significantly weakens the protections guaranteed by Article 21.
IndiaBNSS was said to modernize colonial-era laws, but upon deeper analysis, it reveals contradictions. On the surface, its procedures regarding custody and bail appear to enhance judicial control and procedural clarity. However, when viewed in relation to the UAPA, it becomes clear that these reforms have not addressed the systemic imbalance introduced by special legislation. Rather, the UAPA remains an extraordinary regime that supersedes basic procedural guarantees, and the BNSS does little to alleviate its effects.
This paper argues that Section 43(D) of the UAPA, which regulates detention and bail, entrenches a model of criminal process that departs sharply from constitutional norms. Extended police custody, restricted access to evidentiary material, and an unusually low threshold for denying bail together create a system where pre-trial incarceration becomes the default. These provisions, when placed against the procedural safeguards of the BNSS, expose a widening gap between ordinary criminal procedure and the extraordinary powers exercised under the UAPA. The result is a legal environment where individuals can be deprived of their liberty for years without meaningful judicial scrutiny.
This paper aims to analyze these procedural departures. It follows the pattern through which the UAPA custody and bail systems flout the principle of innocence, increase executive authority, and undermine judicial oversight of investigative authority. It also assesses the role of BNSS in responding to these issues. The case presented here is quite simple: the UAPA creates a procedural void in criminal law, and the BNSS fails to balance this out. Any attempt to institute reform will have to address the structural aspects that enable extended detention, trial delays, and virtually unattainable bail.