New Delhi: The Supreme Court on Monday, May 18, granted bail to Syed Iftikhar Andrabi, who had been incarcerated for more than five years and eleven months on charges under the Unlawful Activities (Prevention) Act (UAPA) and the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

While doing so, as has been reported widely, the court also expressed "serious reservations" regarding several aspects of the apex court judgement through which it denied bail to activists Umar Khalid and Sharjeel Imam, who have been incarcerated since 2020.

But notably, a bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan also observed in the same judgment that conviction rates in UAPA cases across India remained abysmally low, ranging between 1.5% and 4% from 2019-2023. Even worse still, conviction rates in Jammu and Kashmir have stayed below 1%.

The court noted that the statistics suggest a high probability of acquittal in such cases, reported Live Law.

“For all India figures, we have 2% to 6% conviction, meaning thereby that there is 94% to 98% possibility of acquittal in such cases in the country. In so far as the Union Territory of Jammu and Kashmir is concerned, the annual rate of conviction is always less than 1%. It means that at the end of the trial there is 99% possibility of acquittal in such cases," the bench observed.

The case and bail conditions

Syed Iftikhar Andrabi, a village-level worker for the Rural Development department in Kupwara district of Jammu and Kashmir, was taken into preventive detention in August 2019, following the reading down of Article 370, but was released after the high court declared the detention legally untenable. He was subsequently arrested in June 2020 in connection with a National Investigation Agency (NIA) case alleging narco-terrorism activities.

His appeals for bail were denied by both the Special NIA Court as well as the Jammu and Kashmir high court. The prosecution alleged that on information provided by the appellant, drugs and cash were recovered from a co-accused's premises, further claiming that his phone records linked him to operatives in Pakistan.

According to the Supreme Court judgment, no evidence was directly recovered from Andrabi's person or premises, directing to release the appellant on bail, subject to conditions imposed by the special NIA court. The conditions stipulate that the appellant must deposit his passport and appear before the Handwara police station once every fortnight. He is also prohibited from threatening or influencing witnesses.

The UAPA has long since been criticised as an instrument of crushing dissent in India, with numerous activists and journalists slapped with cases under the draconian rule. In Kashmir, the act has seen some of its most controversial use.

The Wire has reported how Parvaiz Rashid and Jamshed Zahoor Paul, who were 24 and 19 years old when they were arrested in 2018 and incarcerated since were acquitted of all terror charges earlier this year. In a 79-page order, the court of additional sessions judge Amit Bansal ruled that the prosecution had failed to prove the case beyond reasonable doubt and rapped the Delhi Police for its shoddy probe.

Paul's lawyer Ahmad Ibrahim had also told The Wire upon their release that little attention was paid by the media on how the UAPA had been invoked and why simply because Rashid and Paul were Kashmiris and the public perception was that they deserved the accusation.

Low rate of conviction

Referring to the data presented before the parliament by the Union Ministry of Home Affairs, drawn from National Crime Records Bureau (NCRB) figures covering 2019-2023, the bench stated that the all-India conviction rate in UAPA cases falls between 1.5-4%.

This means that a person charged under the act faces a 96% to 98.5% probability of acquittal. The court added, "In so far as the Union Territory of Jammu and Kashmir is concerned, the annual rate of conviction is always less than 1%. It means that at the end of the trial there is 99% possibility of acquittal in such cases.”

Referring to the high rate of exoneration for the accused in such cases, the court emphasised that "bail is the rule and jail the exception." Invoking an earlier ruling, Union of India versus K.A. Najeeb, the judgement reiterated that Section 43D(5) of UAPA cannot be used in isolation to deny bail and does not serve as a blanket instrument for prolonged pre-trial detention.

The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.