Bombay High Court.
Bombay High Court Upholds UAPA Validity, Clarifies ‘Prevention’ Not Preventive Detention Law: Mumbai, India – In a significant ruling that clarifies the nature of India’s stringent anti-terror legislation, the Bombay High Court on Thursday upheld the Constitutional validity of the Unlawful Activities (Prevention) Act (UAPA). A Bench of Justices AS Gadkari and Neela Gokhale firmly stated that despite the word “prevention” appearing in its title, the UAPA is not a preventive detention law.
The judgment, delivered in response to a petition filed by Anil Baburao Baile challenging the law’s constitutionality, asserted that “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.” This observation directly countered the petitioner’s argument that the UAPA, if a preventive detention law, could not contain penal provisions and was therefore unconstitutional.
The Court elaborated that a preventive detention law permits the detention of an individual as a precautionary measure before the actual commission of an offense. However, the UAPA’s “prevention” aspect, according to the Bench, “relates to prevention of unlawful activities and does not substantially vest precautionary power of preventive detention in any authority under the Act.”
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“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,” the Court clarified, drawing parallels with other enactments like the Prevention of Corruption Act, which also feature the word “prevention” without being preventive detention laws.
The petitioner, Anil Baburao Baile, a financial advisor and social worker, had been served a notice by the National Investigation Agency (NIA) in connection with the Bhima Koregaon violence. While his initial plea also challenged Section 124A of the IPC on sedition, this part of the challenge was not pressed due to its repeal under the Bharatiya Nyaya Sanhita, 2023.
Baile’s counsel had further contended that the UAPA was “void ab initio” (void from the beginning) because it lacked a specific commencement date. The High Court rejected this, relying on Section 5 of the General Clauses Act, 1897, which stipulates that unless otherwise stated, a Central Act comes into force on the date it receives Presidential assent. The UAPA, therefore, became operational on December 30, 1967, the day it received Presidential assent.
Another argument by the petitioner centered on the 44th Constitutional Amendment Act, 1978, which substituted clauses (4) and (7) of Article 22 concerning preventive detention. It was argued that the failure to notify these substituted provisions rendered the original clauses inoperative, thus stripping Parliament of the power to enact any law on preventive detention, including the UAPA. The Court dismissed this contention, stating, “A constitutional provision cannot be rendered ineffective, merely because the provision substituting it, by way of a constitutional amendment remains to be notified.” It concluded that 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 claimed an overlap between UAPA provisions and the Indian Penal Code (IPC), and that UAPA lacked a clear definition of “unlawful activity.” The Court rejected this as well, noting that the IPC does not define “terrorist act” and that both laws operate in distinct spheres. “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.
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Finally, addressing the broader argument that the UAPA curtails civil liberties and is 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 offenses 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, along with advocates Sandesh Patil, Chintan Shah, Sheelang Shah, Prithviraj Gole, Anusha Amin, and Jalaj Prakash, appeared for the Central government and the National Investigation Agency. Additional Public Prosecutor AS Shalgaonkar represented the State of Maharashtra.
