Balancing Act: Human Rights Concerns Under India’s Security Legislation

India’s legal system is built on a foundational guarantee: every person accused of a crime is presumed innocent until proven guilty. Courts must treat them fairly, evidence must be tested, and confessions extracted under duress carry no weight. Yet when a case involves terrorism, insurgency, or threats to national security, many of these guarantees bend – sometimes to the point of breaking. India’s special security legislations, particularly the Unlawful Activities (Prevention) Act, 1967 (UAPA) and the Armed Forces (Special Powers) Act, 1958 (AFSPA), create a parallel legal universe – one where the rules of the ordinary criminal justice system give way to special procedures justified in the name of public safety. Understanding what these laws do – and what they take away – is essential for any student of Indian law.

The logic behind special security laws 🔗

The argument for having a separate legal regime for security-related offences is straightforward: ordinary criminal law was not designed to handle terrorism or armed insurgency. Investigations in such cases are complex, witnesses are intimidated, evidence is difficult to gather, and delay can be dangerous. The state argues it needs additional tools – longer detention periods, tighter bail conditions, special courts – to effectively prosecute such cases. The problem, however, is that every special power granted to the state comes at the cost of rights held by the individual facing those powers. This is the central tension that defines India’s security legislation.

The UAPA: India’s primary counter-terror law 🔗

Originally enacted in 1967 to deal with secessionist movements, the UAPA has been amended repeatedly – most significantly in 2004, 2008, and 2019 – each time expanding its scope and sharpening its teeth. The 2008 amendment, prompted by the Mumbai terror attacks, introduced Section 43D(5), making it harder for accused persons to secure bail, while the 2019 amendment allowed the government to designate individuals – not just organisations – as terrorists without a prior trial. The National Investigation Agency (NIA), created under the NIA Act of 2008, was given sweeping powers to investigate and prosecute UAPA cases across the country.

Reversal of the burden of proof 🔗

One of the most significant departures from standard criminal law under the UAPA is the effective reversal of the burden of proof. In ordinary criminal cases, the prosecution must prove guilt beyond reasonable doubt. Under the UAPA, once a person is accused, the burden of proof of innocence shifts to the accused, making it difficult to obtain bail or a fair trial. This inversion strikes at the heart of the presumption of innocence – a right protected under Article 21 of the Constitution.

Bail under the UAPA is not governed by the ordinary provisions of the Code of Criminal Procedure (CrPC). Instead, Section 43D(5) requires a court to deny bail if there are reasonable grounds to believe the case against the accused is prima facie true. What makes this especially problematic is how the Supreme Court interpreted this provision. In the 2019 NIA v. Watali judgment, the Court held that the degree of satisfaction needed to deny bail is lighter under the UAPA than under other laws, and that courts must effectively accept the NIA’s version of events – the accused cannot present exculpatory evidence at the bail stage at all. The practical effect is that bail becomes nearly impossible to secure after charges are framed, and the trial itself is rendered almost irrelevant for many accused who spend years in custody waiting for it.

Extended detention and delayed charge sheets 🔗

Under ordinary criminal law, an accused must either be charged or released within 60 to 90 days. Under the UAPA, the government can detain suspects without charge or trial for up to 180 days, and provisions for prolonged detention without trial effectively function as punishment before any conviction. The data reflects this reality starkly. According to NCRB’s ‘Crime in India’ report for 2022, charge sheets in nearly 50% of UAPA cases were filed more than a year after the FIR was registered, and in 15% of cases they took more than two years. Since jail is the rule and bail the exception under the UAPA, accused persons are essentially imprisoned for the duration of this delay – without being convicted of anything.

Admissibility of confessions and special evidentiary rules 🔗

Under the Indian Evidence Act and the general principles of criminal law, confessions made to police officers are inadmissible as evidence. This rule exists to prevent coercive interrogation. Some state-level security laws have departed from this standard. Gujarat’s GUJCOCA law, for instance, contains a controversial provision making confessions made to police officers admissible – a direct reversal of the ordinary evidentiary rule. Under the UAPA’s bail framework, courts are not required to examine the admissibility or reliability of evidence presented by the prosecution at the bail stage – they need only assess whether the accusations appear prima facie true. This means the prosecution can place inadmissible or irrelevant materials before the court to trigger the bar on bail, even though those materials may be excluded at trial under the Evidence Act.

Special courts and the question of fair trial 🔗

UAPA cases are tried by Special Courts constituted under the NIA Act, 2008. The Supreme Court has held that all UAPA offences, whether investigated by the NIA or state police, are to be tried exclusively by these Special Courts, which have exclusive jurisdiction to extend the detention period from 90 to 180 days under Section 43D(2)(b). These courts operate under modified procedures that deviate significantly from the ordinary trial process.

The UAPA vests extraordinary powers of investigation and prosecution in the executive, with abrogated fair trial guarantees and limited checks and balances, doing so by enacting wide derogations from the CrPC, the Indian Evidence Act, common law, and constitutionally protected fair trial rights. Human rights organisations and legal scholars have described this as creating a “dual and parallel system of justice” – where the same act might attract standard criminal law procedures for one accused but the much harsher UAPA regime for another, based entirely on executive discretion in framing charges.

AFSPA: A separate regime for “disturbed areas” 🔗

While the UAPA governs criminal prosecution, the Armed Forces (Special Powers) Act, 1958 operates differently – it regulates what the military can do in areas declared “disturbed” by the government. Originally enacted to deal with the Naga insurgency, AFSPA has since been applied across North-Eastern states, Punjab, and Jammu and Kashmir. Under its provisions, armed forces personnel can use lethal force, arrest without a warrant, and enter and search premises – all without the safeguards that apply to civilian police action.

The most contentious provision is Section 6, which requires prior sanction from the central government before any security personnel can be prosecuted for actions taken under AFSPA. Critics argue this creates “regimes of impunity” where the ordinary civil judicial system cannot reach, and where individuals in disturbed areas are presumed to have hostile intentions rather than being treated as innocent citizens. The Justice Jeevan Reddy Committee, appointed in 2004 after the rape and murder of Manorama Devi in Manipur, declared AFSPA to be “a symbol of oppression, an object of hate and an instrument of discrimination and highhandedness,” and called for it to be replaced entirely.

Judicial scrutiny of AFSPA 🔗

Courts have repeatedly examined AFSPA’s constitutionality while stopping short of striking it down. In Naga People’s Movement of Human Rights v. Union of India (1998), the Supreme Court upheld AFSPA’s constitutionality but laid down “Do’s and Don’ts” for the armed forces, emphasising that the balance between citizens’ rights and public order must be maintained. A more significant step came in Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India (2016), where the Supreme Court held that AFSPA does not provide absolute immunity to armed forces personnel and ordered investigation into alleged fake encounters in Manipur. Despite these rulings, accountability on the ground has remained limited.

The UN Human Rights Commission has recommended repealing AFSPA, noting that it conflicts with India’s obligations under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), to both of which India is a signatory.

The constitutional framework: security versus liberty 🔗

India’s Constitution is not silent on this tension. Article 21 guarantees the right to life and personal liberty. Articles 14 and 22 guarantee equality and protection against arbitrary detention. At the same time, the Constitution permits reasonable restrictions on fundamental rights in the interest of sovereignty, public order, and national security. The question is always whether the restrictions imposed by a given law are proportionate to the threat it addresses.

Amnesty International and other human rights bodies have documented how UAPA has been used to arrest and detain human rights defenders, journalists, students, and activists – groups whose work is protected under Articles 19 and 21 of the Constitution. The Supreme Court has tried to maintain some check on this. In Union of India v. K.A. Najeeb (2021), the Court held that constitutional courts can still grant bail under the UAPA if fundamental rights under Article 21 have been violated, notwithstanding the law’s restrictions – a recognition that no statute can override constitutional guarantees entirely.

Reform: finding the right balance 🔗

The debate over security legislation is not about whether the state has a right to protect itself – it plainly does. The debate is about whether the tools it uses are proportionate, accountable, and subject to meaningful oversight. Reformers have called for narrowing the definition of “terrorist act” to exclude constitutionally protected activities, restoring the presumption of innocence in bail proceedings, and introducing stronger oversight mechanisms and periodic legislative reviews. For AFSPA, committees have consistently recommended that the “disturbed area” designation not be allowed to continue indefinitely without legislative review, and that the prosecution sanction requirement be reformed to enable genuine accountability.

The core issue is structural. These laws place the onus of proving innocence on the accused – a breach of natural justice – and in principle operate as preventive detention laws, criminalising intentions, beliefs, and thoughts, rather than acts. A legal system that values both security and liberty must design its exceptions carefully, with sunset clauses, parliamentary oversight, independent review, and judicial checks that are more than nominal.

What do you think? If extended pre-trial detention under security laws functions as de facto punishment before conviction, does the ordinary presumption of innocence still hold any meaning in such cases? And where should the line be drawn between the state’s legitimate security needs and an individual’s right to a fair trial – who should have the final say?

References

1. https://en.wikipedia.org/wiki/Unlawful_Activities_(Prevention)_Act
2. https://www.jurist.org/commentary/2022/02/doshi-saikia-armed-forces-act-nagaland-india/
3. https://www.drishtiias.com/daily-updates/daily-news-editorials/assessing-the-unlawful-activities-prevention-act
4. https://www.scobserver.in/journal/bail-under-uapa-court-in-review/
5. https://www.amnesty.org/en/latest/news/2023/11/india-stop-abusing-counterterrorism-regulations/
6. https://pucl.org/wp-content/uploads/2023/05/PUCL-28.09.2022.pdf
7. https://indconlawphil.wordpress.com/2023/02/16/guest-post-association-based-offences-and-the-right-to-fair-trial-under-the-uapa-ii/
8. https://www.livelaw.in/top-stories/all-uapa-offences-are-exclusively-triable-by-special-courts-set-up-under-nia-act-164344
9. https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1838&context=nlsir
10. https://m.thewire.in/article/law/in-illustrations-a-brief-history-of-indias-national-security-laws
11. https://psj.lse.ac.uk/articles/120/files/submission/proof/120-1-274-1-10-20220428.pdf