'UAPA Not Preventive Detention Law; Constitutional Challenge Would Still Fail': Bombay HC

Mumbai: Unlawful Activities (Prevention) Act, 1967 (UAPA) is not a preventive detention law, and even if assumed to be so, the constitutional challenge on that basis would still fail, observed the Bombay High Court while upholding the constitutional validity of the Act.

A bench of Justices Ajey Gadkari and Neela Gokhale dismissed a petition filed by Anile Baile, who had been issued a notice by the National Investigation Agency (NIA) in July 2020 in connection with the Elgar Parishad violence case of 2018, saying: “The UAPA, thus in its present form is constitutionally valid and the challenge to its vires on the grounds raised by the Petitioner fails.” The petition was dismissed on Thursday, however, the detailed judgement copy was made available on Friday.

Baile moved the High Court in 2023, contending that the provisions of UAPA, along with Section 124A of the Indian Penal Code (dealing with sedition), were ultra vires the Constitution.

Appearing for Baile, advocates Prakash Ambedkar, Sandesh More and Hitendra Gandhi argued that UAPA conferred sweeping powers on the executive to arbitrarily designate individuals and organisations as terrorists or unlawful, without adequate procedural safeguards or clear statutory definitions.

They submitted that the law, particularly after its amendment to comply with a 2001 UN Security Council resolution, allows criminalisation of citizens without due process.

Rejecting these arguments, the court noted that the power of preventive detention has been expressly provided for in the Constitution. “The Parliament and the State Legislature have the power to make a law on preventive detention. This power was conferred by the Constitution in order to ensure that the security and safety of the country and the welfare of its people are not put in peril,” the court said.

It further clarified that UAPA is not a preventive detention law, and even if assumed to be so, the constitutional challenge on that basis would still fail. Citing legal principles, the bench said, “There is always a presumption of constitutional validity of a statute… Laws passed by the legislature are presumed to be constitutional unless proven otherwise.”

The court added that Section 5 of the General Clauses Act supports the constitutional validity of UAPA, which came into force the day the President assented to it, on December 30, 1967.

Accordingly, the court dismissed the petition, stating that UAPA remains consistent with constitutional provisions and does not infringe upon fundamental rights.