Due to compelling circumstances, UAPA has become what it was never meant to be: J&K HC

UAPA was legislation for preventing unlawful activities but due to "compelling circumstances", it has become what it was never meant to be, the High Court of Jammu & Kashmir and Ladakh said on Wednesday.

A division bench comprising justices Sanjeev Kumar and V C Koul made this observation while granting bail to PDP youth leader Waheed Para in a terror-related case.

"UAPA Act, as is apparent from its name, was initially envisaged to be preventive legislation. It made provisions more or less for preventing unlawful activities. It was, however, due to the compelling circumstances, UAPA Act became what it was never meant to be," the bench said.

The bench said the Unlawful Activities Prevention Act (UAPA) has now taken within its sweep the robust legal framework for dealing with terrorist activities and the matters connected therewith.

"Without going much into the history of legislation, suffice it to say that the UAPA Act, which was initially enacted to provide for a more effective legal mechanism to prevent certain unlawful activities of individuals and associations, later on, took within its sweep the robust legal framework for dealing with terrorist activities and the matters connected therewith," the bench observed.

While commenting on the merits of Para's application for the interim relief, the court said a grant of bail is undoubtedly a discretion, but this discretion is to be used judiciously.

"Grant or denial of bail for the commission of offences under UAPA Act is a power of the designated court which is required to be exercised on the well-settled legal parameters laid down in the CrPC for grant of bail hedged by Section 43-D(5) of UAPA Act," it said.

The court said that Section 43-D of the UAPA Act embodies a provision which can be viewed by some as an onslaught on personal liberties, but there could be no denying the fact that personal liberties have to be balanced against the considerations of public interest.

"While considering the bail applications under UAPA Act, particularly in relation to a person accused of an offence punishable under chapters IV and VI of UAPA Act, the courts, while keeping in mind the rigours of sub-Section (5) of Section 43-D of the UAPA Act, should not forget that there is a presumption of innocence in favour of the accused till he is proved guilty," the bench said.

"This presumption is available to a person accused of any offence under UAPA Act except the offence under Section 15 of said Act. Section 43-E of UAPA Act provides for reverse burden in relation to the offence under Section 15 of the said Act," it added.