UAPA Debate Explodes: Is Jail Becoming The Punishment Before Trial?

Added: 2026-05-19

[00:00:00]Supreme Court is effectively saying that smaller benches or similar size benches have diluted the K.A. Najib judgement.

[00:00:06]Is this a rare institutional correction by the court itself? How important is this for both sides of the bar? If the trial itself takes 5 to 7 years, should the accused remain jailed throughout?

[00:00:17]What's your assessment and standing on this?

[00:00:20]See, as far as the question of the bench uh questioning its earlier order passed by a smaller bench or a larger bench, this is not the first time that Supreme Court has done this. Supreme Court has been reconsidering or the has been questioning its earlier judgement.

[00:00:38]Keshavananda Bharati was the best example where the constitutional court of the five judges and the seven judges and the nine judges and the 11 judges it was referred.

[00:00:48]So, it is always that Supreme Court can review its earlier judgements if they find if the later benches find that the earlier judgements were perhaps not correct in law, then in the interest of justice that these can be reviewed. Now, as far as the question of UAPA bail is concerned, here it is not a simple case of bail. Then, Dr. Nanda, why why talk about dilution? Why use the words like side-stepping by Justices Nagarathna and Ujjal Bhuyan? I mean, help the viewers understand. Why why use those particular adjectives this time around?

[00:01:20]So, it is not No, no, no, no, no. It is don't don't don't go by the words literally, diluting and all that. It They they were only saying that the two-judge later bench cannot cannot see the earlier three-judge bench cannot overrule it in a way that they can take a different view. So, it is not the question of diluting. Maybe looking at at it at a from a different angle.

[00:01:44]That was the point which the bench was making. It is not that saying a diluting diluting doesn't mean literally here. It it is only a question which the the present bench has raised that the earlier two judgements which they are saying has been so as said diluted has looked into the law of bail by the Supreme Court three judges bench in a different way. So they said that this cannot be done.

[00:02:13]If it is to take a different view then a larger bench has to be constituted.

[00:02:18]It was earlier the main judgement was in three by three judges then it should be referred to perhaps five judges. This is what the current bench has held. But Dr. Nanda you you see when it comes to the UAPA it's always you know embroiled and tangled with a lot of politics. We're going to keep that aside. Let's look at the legal aspect of it all. If conviction rates are so low when we talk about the UAPA are we over incarcerating? What's your assessment on that front? Is suspicion becoming sufficient for years of imprisonment? I mean these are the questions that came up today after the hearing.

[00:02:49]The the UAPA is a act which has been legislated in a way that till the time it is there on the legislative book you can't help it. There are there are three bars. It is unlike the normal case of bail where the longer incarceration can entitle accused for bail or the bail is the normal rule.

[00:03:13]The incarceration should not be there during the trial. UAPA minded there are there are bars under 43D. The prima facie bar is there. The that if the prosecution prima facie establishes before the court that the person charged is guilty that minded the word is only prima facie. You may the prosecution may not be in a position eventually to get the conviction because of lack of evidence. But if they prove prima facie that there is a case then yes the bail can be denied. Then there is a second thing which is not there in the normal cases which which called the prosecutorial veto.

[00:03:52]The The public prosecutor has to be given a fair chance to oppose the bail that this is a case where the UAPA is applicable and the person charged is guilty. And the third one is, of course, the The burden here is a in a reversed way.

[00:04:09]Normally, it is on the prosecution to establish that the person is charged The person charged is guilty. Now, here in the UAPA, the person The burden is reversed. It is for the accused to say that no, look, what I am charged with is not the The prosecution's case is not correct. I am innocent. So, the normal rules are not applicable here.