The story goes that during the Second World War, the US military analysed returning bomber planes which had been hit by enemy fire. They observed the places on the aircraft that had been damaged and concluded that these areas needed placement of additional armour or protection. This was until the statistician Abraham Wald recognised a notorious fallacy in this method; the damaged planes being analysed were the ones making it back to base. By focusing only on the surviving aircraft, analysts were completely missing the planes which must have been hit and had crashed.These planes had most probably sustained damage to areas other than the ones that were observed on the returning ones. He concluded that the extra armour and reinforcement should be placed at places where the surviving aircraft had no hits at all, because those revealed the true vulnerability of the aircraft.The anecdote above is an example of survivorship bias, and it influences our thinking about the world in very relevant ways. The way recent commentary has been directed at the Supreme Court’s decisions on the grant of bail under anti-terror statutes is a prime example of how we focus on the obvious and apparent statistical reality, while ignoring more systemic and institutional issues.Legal reasoning is lauded in cases where, after a long period of pre-trial incarceration, bail is granted, and similarly, judgments which do not grant bail are castigated. But this fixation on being able to survive the legal regime of the Unlawful Activities (Prevention) Act or UAPA to successfully obtain a favourable bail order inevitably disguises the larger systemic problems with the law itself.Also read: Stenographer for the Prosecution: Unpacking the Order Denying Bail to Umar KhalidWhat remain under-analysed and unanswered are the base factors which allow for this uncertainty to enter into judicial determination. A focus on the individual outcome of a case obfuscates the more principled and basic questions that arise in such cases.The court rebalances an important positionOn May 18, the Supreme Court granted bail to Syed Iftikhar Andrabi, who had been in custody since 2020 pending trial for offences alleged under the UAPA and the Narcotic Drugs and Psychotropic Substances Act, 1985. Prior to this, the petitioner in question had also been preventively detained for six months under the Jammu & Kashmir Public Safety Act in 2019-2020. Even if the preventive custody is discounted here, the petitioner had suffered incarceration for a period of six years before any adjudication on his guilt was even reasonably foreseeable.His trial is nowhere near completion, and it will probably take several years before it can be reasonably expected to conclude. His previous petitions for regular bail before the trial and High Courts had been rejected.In an extensive judgment, the Supreme Court must be appreciated for having resolved several recent inconsistencies on the issue of the grant of bail under anti-terror laws. For example, the court made it clear that the right to liberty guaranteed under Article 21, of which the presumption of innocence is a conceptual part, stands above and beyond any statutory restriction created by any legislation.The necessity for doing so had arisen because the UAPA incorporates a legal bar on the grant of bail where there exist materials to indicate the commission of the offence by the accused. What the Supreme Court laid down here is that such a limitation cannot operate as a restriction on the right to liberty (and therefore to be released on bail) that flows from Article 21 of the constitution.So how are bail petitions under the UAPA to be decided? It is here that the Supreme Court tries to build a framework under which a principled adjudication can take place. It resurrects the binding force of its own previous judgment in the case of K.A. Najeeb and holds that the bar under the UAPA for the grant of bail cannot operate as the sole determinant of the bail application of an accused. Instead, it must take into account that “…incarceration becomes unduly prolonged and the trial is unlikely to conclude within a reasonable time, the continued application of Section 43-D(5) becomes constitutionally suspect given the mandate of Article 21”.In a prosecution under the UAPA, where the specific bar on the grant of bail is attracted, the position of law that emerges from this recent judgment is that a variety of factors must be considered by a court. These go beyond the statutory bar to the grant of bail and include the seriousness of the offence, the fulfilment of the legislative policy of not favouring the grant of bail, the period of incarceration already undergone, and the prospect of further custody while the trial progresses. The court would also consider the nature of the allegations against the accused, and the material supporting it, and also what had contributed to delays in trial, and therefore caused the long incarceration.Also read: Inconsistencies in Bail Orders Mean Individual Liberty Is Now the Outcome of Judicial LotteryIt is after an examination of these factors that the court has to apply the bar under the UAPA, and where it considers further incarceration unjustified, to override such a legislative provision in favour of release on bail. This position has essentially been reiterated by the Supreme Court in its latest judgment. In doing so, it has cast doubt on the correctness of some of the judgments of the court which denied bail to petitioners, including, rather famously, to Umar Khalid and Sharjeel Imam.Even this reiteration of what was in any case the legal position has led to immediate calls for the constitution of a larger bench of the Supreme Court to re-examine the issue. On May 19, one day after the judgment in question had been pronounced, the Additional Solicitor General, appearing before another Bench of the Supreme Court, said, “When there is a presumption in law, as contained in Section 43D(5) of the UAPA, which is a mandatory presumption and the word used is ‘shall’, then the presumption of innocence of the accused takes a backseat… that aspect has been lost.”This immediate pushback from the government is symptomatic of how it views the extent of its legislative prerogative under special laws.A balancing act that accepts the state’s logicThe judgment of the Supreme Court in Syed Iftikhar Andrabi has been generally welcomed in civil society as having restored coherence into the law of bail under the UAPA. The principle upheld appears to be reasonable as well, it reiterates that the statutory bar on the grant of bail designed by the legislature cannot be the sole determinant in the grant of bail in cases where the accused have undergone unduly long periods of custody, and would continue to suffer such custody for the foreseeable future. This is appreciable, but not wholly.It is precisely at this point that we generally fail to ask another, further question, limiting our analysis of judgments such as these, or of laws such as the UAPA, to their facial features alone. A much larger issue continues to lurk behind in the scheme and design of laws that make such legal positions even possible. We must understand that the decision of the court is an essential balancing act. The right of an undertrial detainee is essentially being balanced against the special scheme of bail under the UAPA.This balance has already been skewed from its original position by the express wording of the statute. Now, the petitioner must function under this new scheme to demonstrate a right to bail. Even substantively speaking, the position of law that has been upheld is not a radical reiteration of the primacy of rights in the face of legislation which seems to eradicate it. It is a far more qualified position, and the right that is reserved is conditional on an individual petitioner successfully navigating several factors to overcome the statutory bar to bail.The clearest example of this is the fact that the court itself holds that mere prolonged custody does not entitle an accused to bail under the UAPA. This inevitably accepts that the nature of a person’s rights can be altered by a special law.Most notably, the reasoning of the Supreme Court sees nothing principally wrong with the position that the legislature can design statutory bars on bail that will necessarily cause violations of the rights of the accused. Indeed, such a position is fully accepted by the court at several places in the judgment, for example, where it notes, “Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAP Act is meant, but those cannot altogether invert the constitutional relationship between liberty and detention.”This logic accepts the position that the legislature can continue to create newer categories of criminality where it will bar the exercise of ordinary rights, such as the right to bail. It puts the authority of the state to do this beyond question. And it may also be added here that the constitutional relationship between liberty and detention need not be inverted in each case, nor will every case of violation rise to the same gravity.The anomaly in the line of cases on the grant of bail under statutes such as the UAPA is actually hidden in plain sight. The statute is expressly designed to ensure that bail is not granted and that cases will routinely end up creating unduly long periods of custody for the accused.Once the right to liberty has been thus qualified by design, the petitioner must now operate under this additional burden. His right to liberty is already rendered distant and difficult to exercise. Now, in order to be granted bail, the petitioner needs to establish a clear violation of his right before a constitutional court. He has to navigate a legal minefield created by the statute and demonstrate, if the test of K.A. Najeeb is applied, that his right is going to be further violated by further incarceration, and he also must qualify the other legal factors particular to him and to his case. It is only then that the court may declare him to be entitled to bail under the constitution.A celebration of this line of reasoning, even though it leads to a just outcome in the current case, is shortsighted. It does not appreciate the continuing discretion of the legislature to design measures to denude Fundamental Rights and the balance of power between the State and its citizens. It accepts this power and rebalances the right to bail. In the process, this very right, which was ordinarily within reach through ordinary law, now becomes a matter of extraordinary scrutiny and discretion as somewhat inaccessible and conditional.One must ask a more fundamental and apparent question, viz., why should a law be designed that routinely violates the rights of an accused? And why must an accused have to demonstrate an extraordinary violation of Article 21 to exercise a right to bail?The shifting legal sands of UAPASpecial laws such as the UAPA imperceptibly but continually shift the normative centre of a legal order. They render the ordinary vague and capricious. The Supreme Court itself, in its judgment of the May 18, is aware of this phenomenon.The judgment quotes the National Crime Records Bureau data from 2019-2023 to show the abysmally low rates of conviction under the UAPA. It then asks whether long incarcerations would be justified given the statistical probability of acquittal of all those people who had been arrested under the statute. It would not be justified at all, and the court is right to point this fact out.However, this question foregoes a more important issue of principle that should be asked: what if the conviction rates under the UAPA were indeed higher? Would this same method of almost unlimited incarceration become justified? Would it become constitutional or just to incarcerate someone for years pending trial if the materials indicated a stronger probability of guilt?Therein lies the fundamental fallacy with the attitude to the creation and design of these special laws. Of course, the Supreme Court could not have decided this issue while dealing with a bail case, and there are other judgments on this point as well, but the part we routinely miss in analysing the outcome of a single bail order is also quite apparent. Once the designed difference of these special laws is accepted as a legitimate and legal form of statutory construction, we are left to argue questions of liberties within this paradigm that was created to violate our rights.We can mitigate some of the effects of this violation, as the Supreme Court judgment here undoubtedly does, but mitigation is not a long term strategy or even course correction. The hundreds of people detained under the UAPA will not be able to demonstrate extraordinarily long incarceration periods, or a variety of other factors needed for bail. They will have to undergo that incarceration first, let it reach a level of severe violations of their rights, and then, if they get everything right, they may be released on bail.Bail, then, under the UAPA remains an illusory right which has been specifically taken away by the legislature. Unless the power to do that under the law is questioned, we are confined to tweaking the rules of somebody else’s game, hoping to sporadically record individual victories while collectively continuing to lose. To come back to the analogy used at the beginning of this essay, our method of analysis of the UAPA is flawed because we are focused on which cases are betting bail, and which are not.We want to understand the guidelines of how to best work the statutory scheme of the UAPA to obtain bail, or to secure just outcomes. What we don’t notice is how the rules of the game have been fundamentally and surreptitiously altered while we were looking elsewhere. Our focus must be on the basics of the law, much more than on the way it may be worked in our favour.Kunal Ambasta is Assistant Professor of Law, National Law School of India University (NLSUI).