The Bombay High Court recently upheld the constitutional validity of the Unlawful Activities (Prevention) Act (UAPA), 1967. A division bench comprising Justice A.S. Gadkari and Justice Dr. Neela Gokhale dismissed a petition filed by Anil Baburao Baile, who challenged the Act's validity on several constitutional grounds.
The Court observed that the UAPA cannot be equated with a law relating to preventive detention, even though its title includes the word "Prevention."
“The substratum of UAPA may be construed to be a 'deterrent' to the commission of unlawful activities, but by no stretch of imagination can it be equated with a law completely relating to preventive detention,” the bench stated.
Background of the Case
Anil Baburao Baile, a resident of Mumbai and an alleged witness in the Bhima-Koregaon Elgar Parishad case, was issued a notice by the National Investigation Agency (NIA) under provisions of UAPA and Section 124-A of the Indian Penal Code. He challenged the constitutional validity of the Act and sought to quash the NIA notice.
Initially, the petition also contested the sedition law under Section 124-A IPC. However, the court noted that since IPC had been repealed and replaced by the Bharatiya Nyaya Sanhita (BNS), and the sedition law is already under consideration before the Supreme Court, that part of the challenge had lost its significance.
Key Arguments and the Court’s Observations
1. Word "Prevention" Does Not Imply Preventive Detention
The petitioner argued that the use of the word "Prevention" in UAPA's title implies that the Act should only prevent and not penalize. The court rejected this view as overly simplistic.
“There are several Acts like Prevention of Corruption Act, Prevention of Money Laundering Act, etc., which contain penal provisions despite having 'prevention' in their title,” the bench noted.
2. Preventive Detention vs Punitive Detention
The court emphasized the conceptual distinction between preventive and punitive detention.
“Preventive detention is a precautionary measure not necessarily linked to a committed offence. UAPA, on the other hand, is punitive in nature and provides penal provisions for actual offences,” the bench clarified.
3. No Conflict with Indian Penal Code (IPC)
The petitioner also claimed that the UAPA overlaps with IPC, especially concerning offences like terrorism. However, the court found no such contradiction.
“IPC does not define 'terrorist acts'. UAPA defines terrorism and related offences separately, thus both Acts operate in distinct spheres,” the court stated.
4. Legislative Competence and Absence of Notification
One of the core arguments was that the UAPA lacks a specific notification declaring its commencement date. The court refuted this using Section 5 of the General Clauses Act, 1897.
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“A central Act comes into force on the day it receives the President’s assent, unless otherwise specified. UAPA received Presidential assent on December 30, 1967, and hence is valid,” the court held.
5. Impact of 44th Constitutional Amendment
The petitioner claimed that the 44th Amendment, which substituted sub-clauses (4) and (7) of Article 22 dealing with preventive detention, renders UAPA unconstitutional. The court disagreed.
“Unless the substituted provisions are notified, the original clauses continue to operate. UAPA is not a preventive detention law, and even if it were, the Parliament retains legislative competence,” the bench ruled.
6. Presumption of Constitutionality
The court reiterated the established legal principle that statutes enjoy a presumption of constitutionality unless explicitly proven otherwise.
“There is no clear transgression of constitutional principles in UAPA. The law is harmoniously aligned with procedural safeguards under CrPC and constitutional rights,” the judgment concluded.
After a thorough 39-page judgment, the High Court concluded that the UAPA is a constitutional, deterrent statute with valid penal provisions targeting activities that endanger India’s sovereignty and integrity.
“The petition is accordingly dismissed,” the bench declared.
Case Title:- Anil Baburao Baile vs Union of India & Others Criminal Writ Petition No. 6458 of 2021