Bail: Right v/s Privilege!

Bail: Right v/s Privilege!

(The Hindu)

(GS Paper II, III – Governance, Security)


  • The Bombay High Court granted bail to poet Varavara Rao in the Bhima Koregaon case on medical grounds, recently.
  • The Court has asserted the doctrine that even the ironclad provisions of an anti-terrorism law are not impassable before a prisoner’s constitutional rights. 


  • The National Investigation Agency had argued that in view of the statutory bar on granting bail under Section 43D(5) of the UAPA if the charges against a person are prima facie true, any bail given on health grounds would set a precedence for numbers of cases. 
  • The court’s perspective on this was whether the Right to Life under Article 21 is being violated or not. It stated that a Constitutional Court cannot be a silent observer to the undertrial being starved of his fundamental rights for the red-tapism of the State.
  • The Court in 2019 had scrutinized specific provisions of the above legislation on various occasions. The Court in Sri Indra Das v. the State of Assam, read down Section 10 of UAPA, which made mere membership of banned institution, criminal. The Court held that a literal interpretation of these provisions would be violative of Articles 19 and 21 of the Constitution. 
  • This was in line with the previous decision in Arup Bhuyan’s case where the Court had held that ‘mere membership of a banned group will not make a person a criminal unless he harbors to violence or incites people to violence or creates a public nuisance by violence or incitement to the same effect.


  • TADA and POTA were similarly draconian and they were always in conflict with the Fundamental Rights enshrined by the Constitution. After deliberations, both of the laws were repealed for being violative of the individual’s right. 
  • By contrast, the UAPA has never been challenged on the ground of legislative capacity.

Way Forward:

  • The laws for national security are the need of the hour, however, to ensure that the laws do not encroach upon dignified life unfairly must be ensured as well.
  • The major constrain for these provisions is the time taken to frame the charges and till the final outcome is reached, the life of the individual could be in despair.

Download Link :The Hindu Zone Current Affairs 25 February

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