Bombay High Court has upheld the constitutional validity of the UAPA law. The petition filed by a 2018 Elgar Parishad case noticee was dismissed.
Mumbai: Today, on July 17, the Bombay High Court has rejected a petition that questioned the constitutional validity of the Unlawful Activities (Prevention) Act (UAPA), an anti-terror law often criticized for being used to suppress dissent.
On Thursday, a division bench comprising Justice AS Gadkari and Justice Neela Gokhale held that the provisions of UAPA are constitutionally valid. While delivering the verdict, the bench stated:
“UAPA in its present form is constitutionally valid challenge to its vires fails. The petition fails.”
The Court’s judgment comes in response to a petition filed by Anil Babura Baile, who had challenged the law, arguing that its provisions were misused and violated fundamental rights.
Baile had received a notice in 2020 in relation to the Elgar Parishad violence case of 2018, a case where several activists were arrested under UAPA for allegedly inciting violence and having links with banned organizations.
After receiving the notice, Baile approached the High Court, questioning the constitutional validity of the UAPA.
He argued that the law gave excessive powers to the government and investigation agencies, which could be misused to detain individuals for long periods without a trial.
Despite these concerns, the Bombay High Court ruled against Baile’s petition.
The Court’s statement —
“UAPA in its present form is constitutionally valid challenge to its vires fails. The petition fails.” —
makes it clear that the Court did not find merit in the arguments challenging the law.
“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 Court stated, while rejecting the petitioner’s argument that UAPA is essentially a preventive detention law and hence cannot include penal provisions.
The Bench emphasized that a preventive detention law is one that allows a person to be detained before any actual crime is committed, purely as a precautionary measure.
The Court further observed,
“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.”
They clarified that UAPA may serve as a strong deterrent to unlawful actions but does not function as a law of preventive detention.
The Court noted,
“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,”
This ruling was made in response to a petition filed by Anil Baburao Baile, a financial advisor and social worker, who was issued a notice by the National Investigation Agency (NIA) in connection with the violence at Bhima Koregaon on July 10, 2020.
In his petition, Baile had initially challenged both the UAPA and Section 124A of the Indian Penal Code, which deals with sedition. However, he later dropped the challenge to Section 124A after it was repealed under the Bharatiya Nyaya Sanhita, 2023.
One of Baile’s key contentions was that the UAPA was void from the beginning (void ab initio) because it lacked a specific clause mentioning the date on which it came into force. He argued that without such a clause or a government notification, the Act could not legally be enforced.
The Court, however, rejected this claim and relied on Section 5 of the General Clauses Act, 1897. This section provides that if no date is mentioned, a Central Act automatically comes into force from the date it receives the President’s assent.
The judges ruled,
“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.”
Another argument raised by the petitioner was based on the 44th Constitutional Amendment Act, 1978. This amendment had changed clauses (4) and (7) of Article 22 of the Constitution, which deal with preventive detention.
Baile argued that since the amended clauses were never officially notified, the original clauses were no longer in effect, and Parliament therefore lacked the power to pass laws on preventive detention like UAPA.
The High Court dismissed this argument as well and clarified,
“Even if the amended sub-clauses (4) and (7) of Article 22 of the Constitution of India are yet to be 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 added that Parliament continues to have the constitutional power to make laws related to preventive detention under Article 22 and Entry 9 of List I of the Constitution, especially in matters concerning national security.
The petitioner also claimed that UAPA overlapped with several provisions of the Indian Penal Code and that it lacked a clear and complete definition of “unlawful activity.” However, this argument too was rejected.
The judges explained,
“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.”
Another broad concern raised was that UAPA infringes upon civil liberties and is ideologically biased. The Court responded by stating that Article 21 of the Constitution does allow for deprivation of liberty, as long as the procedure is just, fair, and reasonable.
The Court noted that UAPA cases are handled under the procedural framework of the Code of Criminal Procedure and are subject to oversight by the judiciary. It emphasized that the law follows legal safeguards and does not allow arbitrary actions.
On behalf of the petitioner Anil Baile, advocates Prakash Ambedkar, Sandesh More, Hemant Ghadigaonkar, Hitendra Gandhi, Nikhil Kamble, and Siddharth Herode appeared.
Representing the Central Government and NIA were Additional Solicitors General Devang Vyas and Anil Singh, along with advocates Sandesh Patil, Chintan Shah, Sheelang Shah, Prithviraj Gole, Anusha Amin, and Jalaj Prakash. Additional Public Prosecutor AS Shalgaonkar appeared for the State of Maharashtra.
In conclusion, the Bombay High Court firmly stated,
“Inclusion of the word ‘prevention’ in the title of an enactment does not by itself render the Act to be a preventive detention law.”
CASE TITLE:
Anil Baburao Baile vs UOI and Ors.
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