UAPA bail for foreign nationals is not automatically barred, the Supreme Court of India has held, clarifying that the prosecution must prove that an accused entered the country illegally before the statute’s stringent restriction can apply. In a judgment delivered on Tuesday, October 27, the court dismissed an appeal by the Union of India and upheld a Madras High Court order granting bail to a man alleged to be a Sri Lankan national.
The Case Before the Court
The bench of Justice Aravind Kumar and Justice Vipul M. Pancholi heard the matter titled Union of India v. Mohamed Rifas. According to LiveLaw’s report of the judgment, the prosecution alleged that the respondent was a Sri Lankan citizen who entered India in 2009 and overstayed his visa. It further alleged that he had obtained Indian identity documents, including a voter ID card, an Aadhaar card and a ration card.
A sessions court had granted him default bail in July 2018 after the investigating agency failed to file a chargesheet within the prescribed period. The Union government later sought cancellation of that bail, contending that he had suppressed his Sri Lankan nationality. The Special Court cancelled the bail in July 2022 under the relevant provision of the Unlawful Activities (Prevention) Act, but the Madras High Court set that order aside in December 2023, prompting the Union’s appeal.
How Section 43D(7) Operates
At the centre of the dispute was Section 43D(7) of the Unlawful Activities (Prevention) Act, which restricts bail for certain foreign nationals. The Supreme Court explained that the prosecution must establish three elements before the bar is triggered. The person must be accused of an offence under the Act, must not be an Indian citizen, and must have entered India in an unauthorised or illegal manner.
The court stressed that the second and third conditions are joined by the word “and” and must therefore be read together. Proving that an accused is a foreign national is not enough. The prosecution must also show that the initial unauthorised entry into India took place. The bench observed that the statutory language refers to the time of entry, which means that a person who arrived under a valid authorisation, such as a visa, does not become subject to the bar merely because the visa later expired or the stay became unlawful.
Why Unauthorised Entry Into India Was Not Established
Applying that reasoning, the court found that the Union had not placed any material on record to establish prima facie that the respondent’s entry had been illegal. It noted that even the allegations in a subsequent first information report recorded that he had entered on a valid visa and that his stay became unlawful only after the visa expired. For that situation, the bench pointed out, prosecution under the Foreigners Act had already been invoked.
The judgment also held that the allegation of suppressing nationality could not, on its own, justify cancelling the default bail that had been granted when the chargesheet was not filed on time.
A High Threshold Remains
The ruling does not make bail easy for foreign accused persons. The bench underlined that where the three elements are proved, Section 43D(7) creates a very high bar. Bail may then be granted only in very exceptional circumstances, and the court must record its reasons in writing. The burden of showing such circumstances rests entirely on the accused. The court added that what qualifies as exceptional will depend on the facts of each case, and that the legislature set this threshold with national security, public interest and India’s sovereignty in mind.
UAPA Bail for Foreign Nationals: Part of a Broader Judicial Pattern
The decision follows another recent intervention on the same provision. In December, a bench of Justices Vikram Nath and Sandeep Mehta granted bail to a man held in Assam for more than two years under the Act without a chargesheet, after the Gauhati High Court had refused relief because the police described him as a foreign national. Justice Mehta described the prolonged custody as appalling, and the bench held that the continued detention beyond the permitted period could not be considered lawful.
Taken together, the two rulings signal that the Supreme Court is unwilling to allow a bare allegation of foreign nationality or illegal presence to displace safeguards such as default bail and personal liberty. At the same time, by preserving the demanding test for those who do fall within Section 43D(7), the court has retained the security-oriented purpose of the provision. For prosecutors, the practical message is that evidence of how and when an accused entered India will now matter as much as proof of citizenship.
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