UAPA not a preventive detention law: Bombay High Court upholds anti-terror law's validity

The Unlawful Activities (Prevention) Act (UAPA) is not a preventive detention law though the word “prevention” appears in its title, the Bombay High Court said on Thursday while upholding the anti-terror law's Constitutional validity [Anil Baburao Baile v UOI and Ors].

A Bench of Justices AS Gadkari and Neela Gokhale said that the mere inclusion of the word “prevention” in the statute’s nomenclature could not determine its character.

"The inclusion of the word ‘prevention’ in the title of an enactment does not by itself render the Act to be a preventive detention law," the judgment said.

In holding so, the Court rejected the petitioner's argument that the UAPA, purportedly being a preventive detention law, could not contain penal provisions and was therefore, unconstitutional.

A preventive detention law is a law which allows detention of an individual as a preventive measure before the commission of any actual offence.

“The word ‘prevention’ appearing in the title of the enactment relates to prevention of unlawful activities and does not substantially vest precautionary power of preventive detention in any authority under the Act,” the Court observed.

The foundation of UAPA may be construed to be a ‘deterrent’ to commission of unlawful activities but it is not a preventive detention law, the Court made it clear.

“Substratum of UAPA may be construed to be a ‘deterrent’ to commission of unlawful activities, but by no stretch of imagination can it be equated with a law completely relating to preventive detention. There are various other enactments having the word ‘prevention’ in the title such as the Prevention of Corruption Act," it added.

The judgment was rendered in a petition filed by Anil Baburao Baile, a financial advisor and social worker, who was served a notice by the National Investigation Agency (NIA) on July 10, 2020, in relation to the violence that occurred at Bhima Koregaon.

While an initial prayer sought to challenge the validity of both the UAPA and Section 124A of the IPC on sedition, the latter was not pressed in view of its repeal under the Bharatiya Nyaya Sanhita, 2023.

Baile’s counsel contended that the UAPA was void ab initio as it did not contain a clause specifying its commencement date. He submitted that without a specific notification bringing the Act into force, it could not have the force of law.

The Court rejected this argument, relying on Section 5 of the General Clauses Act, 1897 which provides that unless otherwise stated, a Central Act comes into effect on the date it receives Presidential assent.

“Even though there is no expression in the Act regarding the specific day on which the Act would come into operation, by operation of Section 5 of the General Clauses Act, the UAPA came into operation on the day it received assent of the President, i.e., on 30th December 1967,” the Court held.

The petitioner further argued that the 44th Constitutional Amendment Act, 1978, had substituted clauses (4) and (7) of Article 22, which pertain to preventive detention, and that the failure to notify the substituted provisions rendered the original clauses inoperative.

As a result, the parliament lacked the constitutional power to enact any law on preventive detention including the UAPA, it was argued.

The Court rejected the argument as well.

“Even if the amended sub-clauses (4) and (7) of Article 22 of the Constitution of India are yet to notified, the original sub-clauses (4) and (7) of Article 22 remain. A constitutional provision cannot be rendered ineffective, merely because the provision substituting it, by way of a constitutional amendment remains to be notified,” the Court said.

It concluded that the parliament remains fully empowered under Article 22 and Entry 9 of List I to legislate on preventive detention in matters of national security.

The petitioner also contended that there was an overlap between provisions of the UAPA and those of the Indian Penal Code (IPC) and that the UAPA lacked a clear and exhaustive definition of “unlawful activity.”

The Court rejected argument, noting that there is no offence of 'terrorist act' in IPC and both laws operate in their distinct spheres.

“There is no offense provided in the IPC which defines as to what constitutes a ‘terrorist act’. Both these enactments operate in distinct spheres in respect of the offenses specified therein. There may be some overlapping in the language of a particular offense, but that by itself would be wholly insufficient to hold that the prosecution under one Act would exclude the operation of the other Act,” the Court held.

On the broader argument that the UAPA curtailed civil liberties and was ideologically discriminatory, the Court reiterated that Article 21 permits deprivation of liberty, provided there is a just, fair and reasonable procedure established by law.

It observed that UAPA offences are subject to procedural safeguards under the Code of Criminal Procedure and judicial oversight.

Advocates Prakash Ambedkar, Sandesh More, Hemant Ghadigaonkar, Hitendra Gandhi, Nikhil Kamble and Siddharth Herode represented Baile.

Additional Solicitors General Devang Vyas and Anil Singh with advocates Sandesh Patil, Chintan Shah, Sheelang Shah, Prithviraj Gole, Anusha Amin and Jalaj Prakash appeared for the Central government and National Investigation Agency.

Additional Public Prosecutor AS Shalgaonkar appeared for the State of Maharashtra.

[Read Judgment]