UAPA tests the balance between security and individual liberty.

As India celebrates another Independence Day, the idea of freedom is usually understood as the freedom of a nation from colonial rule. But 79 years after Independence, there is another constitutional question worth revisiting: what does freedom mean for the individual when the State invokes its power to protect the nation?

The answer lies in the balance between national security and personal liberty, a balance that India's courts continue to negotiate through the Constitution.

The Unlawful Activities (Prevention) Act, 1967 (UAPA) offers a useful lens through which to see that evolution. The law began primarily as a framework to deal with unlawful activities and associations. Over time, India's security landscape changed and Parliament expanded the statutory framework.

In 2004, after the repeal of the Prevention of Terrorism Act (POTA), Parliament amended UAPA to add provisions dealing with terrorist activities. Subsequent amendments further expanded the law, including provisions concerning terrorist organisations and, since 2019, the designation of individuals as terrorists.

The expansion reflects a legitimate responsibility of an independent State: to protect its sovereignty, security and citizens from terrorism.

UAPA today contains provisions dealing with terrorist acts, terrorist organisations, individuals designated as terrorists and activities such as support and funding of terrorism.

But stronger security powers also create a constitutional responsibility. One of the most significant features of UAPA is its stringent bail regime.

Section 43D(5) provides that an accused facing specified UAPA offences should not be released on bail where, on examining the case diary or charge sheet, court finds reasonable grounds for believing that the accusation is prima facie true. The law therefore creates a substantially more difficult bail threshold than ordinary criminal law.

That is where Article 21 becomes important.

The Supreme Court's decision in Union of India v K.A. Najeeb (2021) demonstrated that stringent statutory restrictions cannot completely eclipse the constitutional guarantee of life and personal liberty. Court recognised that where a timely trial is not realistically possible and an accused has already spent a significant period in custody, constitutional courts can intervene to protect the right to speedy trial under Article 21.

Importantly, this does not mean that every prolonged UAPA detention automatically results in bail.

The Supreme Court's more recent jurisprudence has emphasised that continued detention must be assessed in context, taking into account factors such as the gravity of the offence, the role attributed to the accused, the prima facie strength of the case, the causes and trajectory of the delay and risks associated with release.

The constitutional principle, however, remains significant: a criminal trial is meant to determine guilt, not allow incarceration itself to become the punishment.

That principle has assumed fresh importance in the Supreme Court's recent handling of UAPA trial delays. Earlier this month, while hearing a UAPA matter involving one Shahid Khan, Court questioned the prosecution's prolonged timeline, including a proposal involving hundreds of witnesses, and sought a more realistic roadmap for completing the trial. Court also questioned why UAPA special courts should face such prolonged delays when their caseload was relatively limited.

The significance of such judicial scrutiny lies not in weakening the State's ability to prosecute terrorism. It lies in insisting that the extraordinary power to detain must remain connected to a functioning system of justice.

This is perhaps where the constitutional meaning of freedom becomes most relevant to Independence Day.

India's freedom in 1947 was freedom from colonial rule. The Constitution that followed gave that political freedom a deeper institutional meaning. It placed limits on the exercise of that power and made individual liberty, fair procedure and judicial review central to the constitutional order.

National security is an essential responsibility of the State. But the Constitution also demands that the exercise of that responsibility remain subject to law, judicial scrutiny and the rights guaranteed to the individual.

That may be one of the enduring meanings of India's freedom: not simply that the State is free to protect the nation, but that even when it exercises its strongest powers, the individual does not cease to be protected by the Constitution.

Perhaps that is the freedom worth remembering this Independence Day.

Happy Independence Day.

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