“Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.”
John Rawls, A Theory of Justice.
Introduction
The recent attack at Pahalgam and the counter-response has brought the discourse around counter-terror to the forefront. Counter-terror response has two phases: apprehension or neutralisation, followed by the second, and arguably the more important, prosecution.
Counter-terror legislations in India, e.g. Unlawful Activities Prevention Act (hereinafter, UAPA), while superficially preserving constitutional compliance, deviates from the standard criminal procedure. While normative justifications may be provided for deviations, the procedural integrity of these statutes needs to align with international human rights frameworks regardless.
This article problematizes the existing evidentiary requirements in UAPA, notwithstanding the normative justification for the same. Therefore, this paper addresses the fundamental problem in the exemption of the Evidence Act from UAPA, thereby creating a parallel evidentiary regime.
This article has 2 sections. In the first, I establish that the evidentiary regime in UAPA, and the statutory mechanism for admissibility of evidence, traces the deviations from the settled position of law. In the second, I argue that such deviations violate Article 14 of the International Covenant on Civil and Political Rights (hereinafter, ICCPR), thereby denying the right to a fair trial to an accused.
By providing an analysis of the evidentiary and procedural requirements in UAPA vis-a-vis international standards, I argue for a comprehensive recalibration of the procedural requirements in UAPA.
Deviation From The Settled Position of Law Per Anvar P.V. vs P.K. Basheer in UAPA
§. 65 of the Evidence Act requires the admission of any electronic evidence to be preceded by a certification for admissibility. Kurian, J., in Anvar P.V. vs P.K. Basheer & Ors ruled that § 65 A, read along with § 59 and 65 B of the Evidence Act, is sufficient to hold that the special provisions on evidence relating to electronic records shall be governed by the procedure established under § 65 B. It was held that this makes it a complete code in itself, which makes the general law in § 63 and § 65 yield to § 65 B. The court overruled the Navjot Sandhu judgment in the present matter in stating that § 65 B is the only way to admit electronic evidence as a secondary record.
The provisions in UAPA, particularly § 46, deviate from the settled position of law on the issue of admissibility of electronic evidence, analysis of which necessitates a scrutiny of the objective reasons that require a certification to be issued in the first place.
In Anvar P.V. vs P.K. Basheer, the court held that the safeguards (the certification per § 65B) are taken to ensure the source and authenticity, which are the two hallmarks of integrity of an electronic evidence.
The court also acknowledged that evidence of such nature is more susceptible to tampering, alteration, transposition, and excision, thereby holding that the whole trial based on proof of electronic records can lead to a miscarriage of justice. Moreover, the procedure laid down in
§ 65 B gets cemented per the decision of the court in Taylor v. Taylor. In casu, the court opined that when the law prescribes a certain method of performance, performing the act by any other method shall be considered invalid and unenforceable, thereby settling the position of law as the procedure laid down in § 65B.
Per § 46 of UAPA, the requirements of admissibility of electronically intercepted evidence have been reduced. It expressly excludes the applicability of the requirements per § 65 B of the Evidence Act, thereby creating a legal sanction for the established position of law to be bypassed. Thus, any communications intercepted by investigative agencies can be admitted solely on the order of a “competent authority”, notwithstanding the agreement of the court in Anvar P.V. vs P.K. Basheer, with electronic evidence being more susceptible to tampering and alteration.
The explicit exclusion of the Evidence Act creates a parallel evidentiary regime which bypasses the standard procedural requirements for admissibility of evidence. This parallel evidentiary standard is derived from an arbitrary classification of ordinary criminal matters and those filed under UAPA.
The Denial of The Right to a Fair Trial per ICCPR Article 14
Although India is not a signatory to the Rome Statute, the analysis of the provisions of the same sheds light on the international standards upheld in a criminal trial as well as the power of the court to adjudicate on matters about the admissibility of evidence.
The admissibility of evidence in the International Criminal Court is governed by the Rules of Procedure and Evidence, as laid down in Article 69 of the Rome Statute. Article 69 (para 2) allows the court to rule on the admissibility of evidence.
It necessitates the trial chamber to weigh the probative value of evidence against its prejudicial effect to a fair trial. The trial chamber, thus, may reject evidence obtained in violation of the Rome Statute or internationally recognised human rights.
In 2024, India successfully concluded its 4th periodic review by the Human Rights Committee under the ICCPR. Contrary to the stance of the Ministry of External Affairs, India’s deviation from set evidentiary standards in UAPA denies the right to a fair trial per Article 14 of ICCPR.
In light of the judgment in Anvar P.V. vs P.K. Basheer, and the exemption of the requirement to furnish a § 65 B certificate, the burden shifts onto the accused to explain and contest the evidence which has been potentially tampered with. Although the reversal of burden herein is not statutorily sanctioned, as is the case with specific criminal statutes like POCSO and NDPS, the very institutional mechanism to allow for admission of evidence without a certificate speaking to its integrity opens the avenue for the prosecution to submit potentially manipulated evidence, which the accused then has to refute in trial.
ICCPR Article 14 entails that all persons shall be equal before the courts and tribunals. It is important to note that this equality is blanket and does not provide for a reasonable nexus on the basis of the charges against the accused. The United Nations Human Rights Committee’s (hereinafter, UNHR) general comment number 32 of July 2007 enshrines a core guarantee against this nexus created in India through the UAPA as a special law. It emphasises that the guarantees of Article 14 of ICCPR cannot be left to the sole discretion of domestic law to determine the essential content of covenant guarantees. Per comment number 32, the parallel evidentiary standard created in UAPA violates ICCPR Article 14, thereby denying the accused the right to a fair trial.
The challenges posed by the exclusion of § 65 B requirements are not merely limited to the question of admissibility but also to the conjoined violation of the right to examine evidence, enshrined in Article 14.3(e) of ICCPR.
A forensic report by Arsenal Consulting, in the matter of NIA vs. Sudhir Prahlad, was released in 2021. The report proved that incriminating evidence was planted on Rona Wilson’s computer, challenging the integrity of the evidence presented by the prosecution.
In such a situation, a 65 B certificate becomes a guarantee by the investigative agencies to the effect that the chain of custody is preserved, and that the evidence is not tampered with. This mere technicality thereby ensures the state’s (prosecution’s) attention to the question of the evidence’s integrity.
The absence of a requirement for a 65 B certificate further complicates cross-examination. Since, now merely on the nod of a ‘competent authority’, the evidence is admitted, the defence has practically no witnesses to call to question the integrity of the evidence or chain of custody.
To further understand the consequences of this exemption, a juxtaposition of Indian standards with those in other jurisdictions becomes crucial. The European Court of Human Rights applied an overall fairness test in Beuze v. Belgium, which includes an inexhaustive list to assess reliance on unlawfully obtained evidence, which renders the trial unfair. Test [c] of this fairness test is whether the accused was allowed to challenge the authenticity of evidence and oppose its use.
Applying this standard to the case of UAPA breeds contrary outcomes. Once digital evidence is admitted in a criminal trial, the defence has two logical alternatives.
Either [a] challenging its integrity based on the 65 B certification (through a cross-exam with respect to the chain of custody); or [b] supplying un-tampered evidence to the contrary, establishing the supremacy of the latter, beyond a reasonable doubt.
Both alternatives are contrary to the ends of justice. In the first, the very precursor, 65 B certification, is absent in a UAPA trial; meanwhile, the second opens a can of worms. The prosecution may furnish evidence potentially tampered with to extract otherwise inaccessible evidence during trial.
Thus, I argue that the parallel evidentiary regime under UAPA situates the accused in a particularly precarious situation. The accused has to argue for the inexistence or inauthenticity of the evidence furnished, in a trial wherein the prosecution, at best, provides evidence of questionable integrity.
Conclusion
The principle counter-terror legislation of India, the UAPA explicitly excludes the application of Evidence Act, thereby creating a parallel evidentiary regime. This parallel evidentiary
regime not only violates constitutional principles, as evidenced by the court’s decision in Anvar P.K., but also the ratified covenant on human rights, which explicitly negates the discretion of domestic law to determine essential content of the guarantees of the covenant.
The propositinos for such deviations may provide normative justifications. However, the
procedure still needs to be in line with enshrined principles of human rights. Exclusion of 65 B certification places the accused in a precarious situation, wherein the reasonable alternative remains to either supply potentially incriminating untampered evidence. Resorting to such
alternatives opens a can of worms wherein the prosecution can submit potentially tampered with evidence, thereby forcing incriminating evidence out of the defense.
Considering the systemic withdrawl of safety nets ensuring a fair trial, the statute warrants an immediate revisiation.
Umar Khalid’s five years of incarceration under this statute, without charges, underscores the broader need for safeguards to fair trial. It is high time that the state stops justifying systemic denial of human rights, by emplying the rhetoric of national security.
(This post has been authored by Arnav Singh, a second-year student at NLSIU, Bangalore)
CITE AS: Arnav Singh ‘The UAPA’s Kafkaesque Framework: ‘Special’ Law’s Mockery of Procedure’ (The Contemporary Law Forum, 26 September 2025) <https://tclf.in/2025/09/26/the-uapa’s-kafkaesque-framework-‘special’-law’s-mockery-of-procedure//> date of access.