UAPA and the Burden of Proof

India’s commitment to combating terrorism is unquestionable. Faced with cross border attacks, organised extremist networks, and digitally driven radicalisation, the State requires robust legal tools. The Unlawful Activities Prevention Act was enacted to meet these challenges. Yet its expanding use has raised a fundamental constitutional concern. Is an exceptional anti terror law being normalised for cases that fall short of terrorism?

Arrests Rising, Adjudication Lagging

Data placed before Parliament by the Ministry of Home Affairs underscores the scale of the imbalance in the application of UAPA. Between 2019 and 2023, a total of 10,440 persons were arrested under the law across India. In the same period, only 335 convictions were recorded, translating into a conviction rate of approximately 3.2 per cent, according to parliamentary responses based on official records.

The regional distribution of these arrests sharpens the concern further. Jammu and Kashmir alone accounted for over 35 per cent of all UAPA arrests during this five year period, with 3,662 arrests recorded in the Union Territory. Yet, only 23 convictions were secured there over the same timeframe.

The trend has continued in recent years. In 2023 alone, 2,914 individuals were arrested under UAPA, while the national conviction rate for cases registered that year stood at around 4 per cent, as reflected in official crime data.

Taken together, figures compiled by the National Crime Records Bureau and parliamentary replies from the Ministry of Home Affairs point to a widening gap between arrests and final judicial outcomes. This divergence has strengthened the perception that the law is increasingly functioning as a tool of prolonged pre-trial detention rather than as a narrowly targeted instrument against proven terrorist activity.

When UAPA Worked as Intended

The prosecution of Ajmal Kasab for the 2008 Mumbai terror attacks remains a benchmark for legitimate and necessary use of UAPA. The case involved a captured terrorist, mass civilian casualties, clear organisational links, and incontrovertible evidence. The judicial process was firm yet lawful, demonstrating that India’s legal system can respond decisively to terrorism without departing from due process.

Similarly, convictions secured against organised terror networks such as the Indian Mujahideen underline UAPA’s relevance in dismantling conspiracies involving bombings, terror financing, and recruitment. These cases confirm that where violence and terror intent are explicit, the law commands both legal and moral legitimacy.

Where the Line Has Blurred

Concerns arise when UAPA is applied in contexts where the alleged conduct lies closer to speech, protest mobilisation, or ideological advocacy than to terrorist violence.

The Bhima Koregaon case, registered in 2018, exemplifies this unease. At least eight accused persons spent four to five years in custody under UAPA before being granted bail at different stages, while trials remain incomplete. Courts have repeatedly been asked to examine whether broad conspiracy allegations and contested electronic material justify prolonged incarceration under a law designed to combat terrorism.

A similar concern marks cases arising from the aftermath of the 2020 Delhi violence. Umar Khalid has remained in custody since 2020 under UAPA on allegations of participation in a larger conspiracy, despite the absence of charges directly attributing acts of violence to him. Bail decisions have turned largely on the statute’s stringent threshold rather than on adjudicated guilt.

In the case of Sharjeel Imam, also arrested in 2020, the prosecution rests primarily on allegedly inflammatory speeches. While provocative or incendiary speech may legitimately attract criminal liability under ordinary law, its categorisation as terrorism under UAPA raises a difficult legal question. At what point does unlawful speech cross the threshold into terrorist activity? The absence of a clear doctrinal boundary has contributed to extended pre-trial detention.

The Human Cost

Perhaps no case illustrates the human consequences of UAPA’s rigidity more starkly than that of Safoora Zargar, who was arrested in April 2020. Charged under UAPA in connection with protest related allegations, she was incarcerated while pregnant, and denied bail for weeks before judicial intervention granted relief on humanitarian grounds.

Her detention highlighted a deeper institutional problem. When an anti terror law is applied mechanically, even pregnancy and vulnerability struggle to outweigh the severity of allegations. Bail in such cases arrives not because the terrorism charge is scrutinised rigorously at the outset, but because the human cost becomes impossible to ignore. By then, the damage to personal liberty and constitutional values has already occurred.

The Bail Paradox

UAPA permits denial of bail if the prosecution’s case appears prima facie true, often based largely on the police version of events. NCRB data shows that a majority of UAPA cases remain under investigation or trial for several years, reinforcing concerns that pre trial detention has become the norm rather than the exception.

The result is a troubling paradox. Individuals may remain incarcerated for long periods, only to be acquitted later or granted bail after prolonged detention. As the Supreme Court of India has repeatedly cautioned, the gravity of accusations alone cannot justify indefinite deprivation of liberty.

Drawing the Necessary Line

There is little disagreement on where UAPA must apply. Terrorist acts involving mass violence, organised extremist conspiracies and terror financing, and cross border or transnational terror operations fall squarely within its scope.

The controversy lies in extending its reach to cases where public order offences, protest related mobilisation, or inflammatory speech are elevated to terrorism. Such conflation risks diluting both the moral force of anti terror law and public confidence in its application.

UAPA remains indispensable in confronting genuine terrorist threats. But its frequent invocation in cases rooted in speech and protest risks transforming an exceptional law into a routine instrument of governance. A strong Republic must be uncompromising against terror and equally disciplined in safeguarding liberty.

The credibility of India’s counter terror framework will rest not on how often UAPA is invoked, but on how precisely, proportionately, and sparingly it is applied.