Because their subsequent stay in the country becomes unlawful, the Supreme Court on Tuesday ruled that the Unlawful Activities (Prevention) Act (UAPA) does not impose a blanket prohibition on granting bail to foreign nationals accused under the anti-terror law, clarifying that the statutory bar applies only when a foreigner has entered India unauthorisedly or illegally, and not merely.
A bench of Justices Aravind Kumar and Vipul M Pancholi held that the prosecution must prima facie establish that an accused is not an Indian citizen and that their initial entry into India was unauthorised or illegal to trigger the stringent restriction under Section 43D(7) of the UAPA. Because the visa subsequently expires or the person’s stay becomes illegal, held the court, a foreign national who entered India legally on a valid visa cannot be brought within the provision merely.
The court underscored that Section 43D(7) imposes a high threshold for bail where its conditions are met, given considerations of national security, public interest and India’s sovereignty. The NIA subsequently took over the investigation and filed a chargesheet in January 2021. A separate FIR was registered in November 2019 alleging that Rifas was a Sri Lankan national who had overstayed his visa and fraudulently obtained Indian identity documents, including a voter ID card and Aadhaar. In April 2022, the Union government sought cancellation of his bail, arguing that he had concealed his foreign nationality when seeking release and that Section 43D(7) barred bail to foreign nationals accused under the UAPA. The special court cancelled his bail in July 2022, but the Madras high court reversed that decision in December 2023. It emphasised that Rifas had been granted statutory default bail under Section 167(2) of the Code of Criminal Procedure, a right that also applies to UAPA cases through Section 43D(2) of the Act. the application seeking cancellation was moved only in April 2022, and the government had not satisfactorily explained the delay While the chargesheet was submitted in January 2021.
The ruling came as the court dismissed an appeal by the Union government challenging a Madras high court order that restored bail to Mohamed Rifas, a Sri Lankan national accused in a case being investigated by the National Investigation Agency (NIA) over an alleged conspiracy to disturb communal harmony, wage an armed struggle against the government and to liberate their associates lodged in prisons. The Supreme Court rejected the Centre’s contention that the alleged suppression of nationality justified cancellation of bail. The court also found that the Centre had failed to establish a compelling basis for cancelling the bail after the chargesheet was filed.
The provision allows bail in such cases only in “very exceptional circumstances”, with reasons recorded in writing.
