An Insight of Anti-Terror Provisions in the Unlawful Activities (Prevention) Act, 1967 with Special Reference to the Amendment of 2019

I. Introduction

An act of terror has the potential to affect the life of every human being. The magnitude and destructive effect of terrorism has affected the security of state and lives of the individuals. Thus, to secure and protect the sovereignty and integrity of any nation is at the utmost priority and India is not an exception. There have been many individuals and associations which carry out unlawful activities with an aim to endanger the sovereignty and integrity of India. To restrain and restrict such individuals and associations the Government of India enacted the Unlawful Activities (Prevention) Act, 1967.

The principal Act of UAPA had the provisions to deal with the unlawful activities only and there had been no provisions to deal with terrorist activities. Thus, when the Prevention of Terrorism Act, 2002 was repealed in 2004, there had been difficulty in dealing with terrorist activities, Hence, to deal with such paucity, the amendment was carried out in the UAPA in the year 2004 viz. the Unlawful Activities (Prevention) Amendment Act, 2004, with an objective to deal with terrorist activities by incorporating the anti-terror provisions. Since then, the UAPA became the foremost legislation to combat terrorism in India.

II. The unlawful activities (prevention) act, 1967

(A) Historical And Conceptual Contour

On November 26, 1949, India adopted its Constitution, and it came into force on January 26, 1950. Soon after its enforcement, it was realized that the Constitution has provided extensive rights to its citizen and if these rights are not controlled it will lead to severe imbalance in functioning of the state. In accordance with such necessity, the Constitution of India underwent its first amendment in the year 1951², and substituted clause (2) in Article 19, which provided reasonable restrictions upon exercising such rights. Article 19(2) was further amended in the year 1963 vide the Constitution (Sixteenth Amendment) Act, 1963 upon the recommendation of the Committee on National Integration and Regionalism which was appointed by National Integration Council to impose reasonable restrictions in the interest of sovereignty and integrity of India.³ Further, in order to implement the provisions of the said amendment of the Constitution, the Unlawful Activities (Prevention) Bill was introduced in the Parliament and was passed by both the Houses of Parliament and received its assent from the President of India on December 30, 1967, which ultimately became the law as the Unlawful Activities (Prevention) Act, 1967.⁴

(B) Key Amendments

The UAPA has undergone several amendments and anti-terror provisions were incorporated in the year 2004.⁵ It further amended in the year 2008⁶, 2012⁷ and the most recent in the year 2019.⁸ Let us discuss the essential provisions carried out in such amendments.

2004 Amendment

The principal Act had been amended in the year 2004 viz. The Unlawful Activities (Prevention) Amendment Act, 2004, with an objective to deal with terrorist activities. This amendment substituted a new chapter for Chapter IV which is, “Punishment for Terrorist Activities.”⁹ The amendment also incorporated terms such as “terrorist act”¹⁰, “terrorist gang”¹¹ and “terrorist organisation.”¹² The term “terrorist act” had been defined under Section 15¹³ as:

“Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign country or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government in India or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.”

The amendment substituted Section 16¹⁴ which prescribed the “Punishment for terrorist act” as, “in case of causing death, the punishment shall be either death or imprisonment of life and shall also be liable to fine”¹⁵, and “in any other case, the imprisonment shall not be less than five years which may extend to imprisonment for life and shall also be liable to fine.”¹⁶ Section 17¹⁷ was also substituted which is related to “Punishment for raising fund for terrorist act”, “which shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.” Section 18¹⁸ was substituted which prescribed the “Punishment for conspiracy etc.”, “which shall be punishable with imprisonment for a term which shall not be less than five years which may extend to imprisonment for life and shall also be liable to fine.” Section 19¹⁹ prescribed the “Punishment for harbouring etc.”, “which shall be punishable with imprisonment for a term not be less than three years but which may extend to imprisonment for life and shall also be liable to fine.” Section 20²⁰ prescribed the “Punishment for being member of terrorist gang or organization”, “which shall be punishable with imprisonment which may extend to imprisonment for life and shall also be liable to fine.” Section 21²¹ prescribed the “Punishment for holding proceeds of terrorism”, “which shall be punishable with imprisonment which may extend to imprisonment for life and shall also be liable to fine.” Section 22²² prescribed the “Punishment for threatening witness”, “which shall be punishable with imprisonment which may extend to three years, and shall also be liable to fine.” Section 23 was also substituted with regard to “Enhanced penalties”. According to Section 23(1)²³, “any person with the intention to aid any terrorist contravenes the provision of rules made under the Explosives Act 1884, Explosives Substances Act, 1908, Inflammable Substances Act, 1952 or the Arms Act, 1959, or is in possession of bomb, dynamite or any other hazardous substance capable of mass destruction shall be punishable with imprisonment not less than five years which may extend to imprisonment for life and shall also be liable to fine.” Section 23(2)²⁴ was substituted which is punishment for attempt and preparation of offences as, “any person who with the intent to aid any terrorist, or a terrorist organisation or a terrorist gang, attempts to contravene or abets, or does any act preparatory to contravention of any provision of any law or rule specified in sub-section (1), shall be deemed to have contravened that provision under sub-section (1) and the provisions of that sub-section in relation to such person, have effect subject to the modification that the reference to imprisonment for life therein shall be construed as a reference to imprisonment for ten years.”

This amendment also substituted Chapter V²⁵ which is titled as, “Forfeiture of Proceeds of Terrorism.” The term “Proceeds of terrorism” had been defined under Section 2(1)(g)²⁶, which reads as “all kind of properties which have been derived or obtained from commission of any terrorist act or have been acquired through funds traceable to a terrorist act, irrespective of person in whose name such proceeds are standing or in whose possession they are found, and includes any property which is being used, or is intended to used, for the purpose of a terrorist organisation.” The amendment also substituted another Chapter, Chapter VI which is titled as, “Terrorist Organisations.”²⁷ The “Schedule”²⁸ was substituted to incorporate the name of terrorist organizations.

2008 Amendment

The Unlawful Activities (Prevention) Amendment Act, 2008, substituted and inserted various provisions. Section 2(1)(g) which defines the “proceeds of terrorism”, was amended and the word, “for the purpose of terrorist organization”, the words “or terrorist gang”²⁹ had been inserted at the end. The definition of “Terrorist act” under Section 15³⁰ was substituted by new section, as following:

“Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,-

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause—

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.

Explanation.– For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as public functionary.”

The amendment also inserted Section 16A³¹, which prescribed the “Punishment for making demands of radioactive substances, nuclear devices etc.”, “which shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine.” Section 17³² which is “Punishment for raising funds for terrorist act”, was substituted with a new section, which reads as, “whoever, in India or in a foreign country, directly or indirectly, raises or collects funds or provides funds to any person or persons or attempts to provide funds to any person or persons, knowing that such funds are likely to be used by such person or persons to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.” There had been a substitution in Section 18³³, and for the words, “incites or knowingly facilitates”, the words “incites, direct or knowingly facilitates”, had been substituted. The amendment further inserted Section 18A³⁴ thereby adding provision for “Punishment for organizing of terrorist camps or camps for imparting training in terrorism”, “which shall be punishable with imprisonment for a term not less than five years which may extend to imprisonment for life and shall also be liable to fine”. Section 18B³⁵ was also inserted thereby prescribing “punishment for recruiting of any person or persons for terrorist act”, “which shall be punishable with imprisonment for a term which shall not be less than five years which may extend to imprisonment for life and shall also be liable to fine.”

In Section 24, the words “terrorist organization or terrorist gang” had been inserted in sub-section (2) after the words, “proceeds of terrorism whether held by a terrorist or.”³⁶ The amendment inserted new sections viz. Sections 43A to 43F.³⁷ Section 43A³⁸ was inserted thereby empowering an officer of the designated authority to arrest, search etc. Section 43B³⁹ incorporated the procedure of arrest, seizure etc. Section 43D(2)(b)⁴⁰ prescribed pre-charge detention for one hundred and eighty days if the public prosecutor satisfies the court that it is not possible to complete the investigation within the period of ninety days. Section 43D(4)⁴¹ prescribed that, “nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.” According to Section 43D(5)⁴² of the UAPA, “any person against whom the prima facie case is lodged for offences punishable under chapters IV and VI of the UAPA, he cannot be released on bail unless the Public Prosecutor has been given an opportunity of being heard on application for such release.” According to Section 43D(7)⁴³ of the said Act, “bail shall not be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country without authority or illegally except in very exceptional circumstances and for reasons to be recorded in writing.” Section 43E⁴⁴ prescribed the presumption of offences under Section 15 of the UAPA. The amendment further inserted Section 51A which empowered Central Government to prevent and cope up with the terrorist activities. Section 51A(a)⁴⁵ empowered the Central government to “freeze, seize, or attach funds and other financial assets or the economic resources of persons either engaged or suspected in terrorism. Section 51A(b)⁴⁶ empowered the Central government to “prohibit any individual or entity from making any fund, or financial assets or economic resources for the benefit of individual or entity listed in the schedule or for the benefit of suspects.” Section 51A(c)⁴⁷ empowered the Central government to “prevent the entry or transit through India of individuals listed in the schedule or any other persons suspected to engage in terrorism.”

2012 Amendment

The Unlawful Activities (Prevention) Amendment Act, 2012, amended the definition of “terrorist act” under Section 15 thereby incorporating the offences threatening the “economic security”⁴⁸ of the country. The “economic security” is defined under Section 2(ea)⁴⁹ as “economic security includes financial, monetary and fiscal stability, security of means of production and distribution, food security, livelihood security, energy security, ecological and environmental security.” The amendments carried out in Section 15⁵⁰ are as following:

Section 15 of the principal Act shall be renumbered as sub-section (1) thereof and in sub-section (1) as so renumbered,—

(i) in the opening portion, after the word “security”, the words “,economic security,” shall be inserted;

(ii) in clause (a), after sub-clause (iii), the following sub-clause shall be inserted, namely:—

(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or

(iii) in clause (c), for the words “any other person to do or abstain from doing any act,”, the words “an international or inter-governmental organisation or any other person to do or abstain from doing any act; or” shall be substituted;”;

(iv) for the Explanation, the following Explanation shall be substituted, namely:— ‘Explanation.—For the purpose of this section—

(a) “public functionary” means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;

(b) “high quality counterfeit currency” means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.

(v) after sub-section (1), the following sub-section shall be inserted, namely:—

“(2) The terrorist act under sub-section (1) includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.”

Section 2(1)(g)⁵¹ was also amended and substituted the clause in the definition of “proceeds of terrorism” as:

(i) all kinds of properties which have been derived or obtained from commission of any terrorist act or have been acquired through funds traceable to a terrorist act, irrespective of person in whose name such proceeds are standing or in whose possession they are found; or

(ii) any property which is being used, or is intended to be used, for a terrorist act or for the purpose of an individual terrorist or a terrorist gang or a terrorist organisation”.

Explanation - For the purposes of this Act, it is hereby declared that the expression “proceeds of terrorism” includes any property intended to be used for terrorism;

Section 16A⁵² was omitted after this amendment which was related to “Punishment for making demands of radioactive substances, nuclear devices etc.” The amendment substituted new section for Section 17⁵³ in which legitimate and illegitimate source of funds were incorporated while explanations were also included, however the punishment remained the same i.e., “imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.” Another insertion was made in heading of Chapter V, wherein after the words “terrorism”, the words “or any property intended to be used for terrorism” ⁵⁴, had been inserted, the chapter was thus titled as “Forfeiture of proceeds of terrorism or any property intended to be used for terrorism.” The amendment also substituted new section for Section 24⁵⁵, which is titled as “References to proceed of terrorism to include any property intended to be used for terrorism”, and Section 24A⁵⁶ which is titled as “forfeiture of proceeds of terrorism.”

The Schedule was amended as, “the existing Schedule shall be renumbered as the First Schedule thereof, and after the First Schedule as so renumbered, and the following schedules shall be inserted namely, The Second Schedule, The Third Schedule.”⁵⁷

2019 Amendment

The most recent amendment is the Unlawful Activities (Prevention) Amendment Act, 2019 wherein there have been several changes in the UAPA. This amendment has been discussed in detail in subsequent paragraphs.

III. The unlawful activities (prevention) amendment act, 2019

The Unlawful Activities (Prevention) Amendment Bill, 2019⁵⁸ was introduced in the Lok Sabha on July 8, 2019, and was passed on July 24, 2019 and in the Rajya Sabha on August 02, 2019. It received the assent from the Hon’ble President of India on August 08, 2019⁵⁹ and finally became the Unlawful Activities (Prevention) Amendment Act, 2019, which came into force on August 14, 2019.⁶⁰

(A) Need of the Amendment

India has always been committed to exterminate the terrorism, hence, a step towards fulfilling such commitment, the UAPA was amended in 2004 thereby incorporating the anti-terror provisions. The amendment had the scope to declare an organization as “a terrorist organization”. Although, there had been further amendments in 2008 and 2012, but still something was missing somewhere to tackle the problem of terrorist activities, and finally it was explored that even though there had been provisions to declare an organization a terrorist organization, but there had been no such provisions to declare an individual as “a terrorist”, and thus the individuals who were the part of such terrorist organizations had the gates opened to either establish a new organization or to be a member of other existing organizations, thus, to cope up with such a situation, the UAPA was amended in the year 2019. Thus, the amendment specifically widens the scope of the UAPA to combat terrorism and empowers the Central Government to categorize an individual as a terrorist.

(B) Essential Features Of The Amendment

Let us discuss the essential features of the amendment of 2019, carried out in the Unlawful Activities (Prevention) Act, 1967.

Heading Of Chapter VI

The heading of Chapter VI substituted the name of “individuals” along with the terrorist organisations and thus it will now be titled as “Terrorist Organisations and Individuals.” ⁶¹

• Addition Of Individual In The Category Of Terrorist

Before the amendment of 2019, the Central Government could categorize an “organization” only as a “terrorist organization”, and “individuals” were outside the scope of being declared as a terrorist, however, after the amendment of 2019, individuals are also within the scope of being categorised as a terrorist.

Section 35(1)(a) of Chapter VI, empowers the Central Government to categorize an organization in the First Schedule or “an individual”⁶² as terrorist in the Fourth Schedule.

Section 35(1)(b) empowers the Central Government to add the name of an organization in the First Schedule or “an individual”⁶³ in the Fourth Schedule to combat international terrorism.

Section 35(1)(c) empowers the Central Government to remove the name of an organization in the First Schedule or “an individual”⁶⁴ from the Fourth Schedule.

Section 35(2) empowers the Central Government to exercise its power assigned in 35(1)(a) which is to add an organization in the First Schedule or “the name of an individual in the Fourth Schedule”⁶⁵, in respect of an “organization or an individual only if it believes that such organization or individual is”⁶⁶ involved in terrorism.

According to Section 35(3), an organization or “an individual”⁶⁷ shall be deemed to be involved in terrorism if such individual:

a) Commits or participates in acts of terrorism, or

b) Prepares for terrorism, or

c) Promotes or encourages terrorism, or

d) Is otherwise involved in terrorism.

• Denotification Of An Individual

According to the provisions of Section 36, apart from the Terrorist organization, the “individuals”⁶⁸ can also move an application to the Central Government to remove his name from the Fourth Schedule.

• Extension Of Powers Of National Investigation Agency

Section 25(1)⁶⁹ of the UAPA has been amended, which empowers the Director General of National Investigation Agency to make an order to seize the property or to make an order directing that property not to transfer or otherwise deal with without prior permission of the officer making such order in relation to which an investigation is carried out for the offences committed under Chapter IV or Chapter VI of the Act, which represents proceeds of terrorism. Earlier this power was vested with the Director General of Police of state only.

• Inclusion Of Officer Of National Investigation Agency Not Below The Rank Of Inspector Competent To Investigate The Offences Under Chapter IV Or VI

Section 43(ba)⁷⁰ of the UAPA empowers the officer not below the rank of Inspector of National Investigation Agency to conduct the investigation of the offences under chapter IV or VI.

• Addition of the Fourth Schedule

The Fourth Schedule⁷¹ has been inserted wherein the name of individuals shall be listed whom the Central Government declares terrorist.

IV. The unlawful activities (prevention) act, 1967 and articles 14, 19 and 21 of the constitution of india

Every individual is born with certain intrinsic rights which cannot be abridged from that individual under any circumstances. Right to equality and right to life and personal liberty are amongst the most basic rights associated with any individual. Simultaneously, the freedom of speech and expression which includes the right to dissent, right to opinion and right to disagreement is a crucial right without which a just society is difficult to imagine. These rights have been explicitly guaranteed by the Constitution of India. On the other hand, it is also true that these rights have certain limitations. One of such possible limitations is the enactment of the Unlawful Activities (Prevention) Act, 1967.

The UAPA was originally meant to deal with the unlawful activities and later on after 2004 amendment, the anti-terror provisions were also made a part of it. With the efflux of time, the UAPA had seen several changes and the most recent is the amendment of 2019, wherein a crucial amendment has been made out which empowers the Central Government to categorize an individual as a terrorist. The said amendment has been criticised on the ground that, it is unfettered, discretionary and unbound powers are vested upon the government which is prone to misuse and hence violative of Article 14 of the Constitution of India, further it has been criticized that it also violates Article 19(1)(a) i.e., the freedom of speech and expression. There has also been a criticism that the said amendment deprives the right to life and personal liberty of an individual guaranteed under Article 21 of the Constitution of India, which includes the right to reputation as well.

Let us discuss the Articles 14, 19 and 21 of the Constitution of India which must be taken into consideration before implementing the provisions of the UAPA.

(A) Article 14 - Right to Equality

The concept of equality has been mentioned in Article 14 of the Constitution of India, which reads as, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The traditional concept of equality refers to the fact that any person or class of persons cannot be differentiated from same class of persons. In this traditional concept, class legislation was forbidden but reasonable classification was not forbidden. Hence, the concept of reasonable classification came into being.

In the famous case of State of West Bengal v. Anwar Ali Sarkar⁷², the Hon’ble Supreme Court of India laid down the following tests of reasonable classification:

(i) Classification must be based on intelligible differentia. This means that persons being differentiated for any reason must be intelligible.

(ii) Intelligible differentia must have rationale nexus from the object sought to be achieved.

With the advent of time the equality has developed a new concept i.e., concept of arbitrariness, which is antithesis to the right to equality under Article 14. Therefore, if any action of state is arbitrary being unreasonable then it is the enemy of Article 14 and cannot be said to be constitutional.

In E. P. Royappa v. State of Tamil Nadu⁷³, the Hon’ble Supreme Court observed that, “equality is dynamic concept with many aspects and dimensions and cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.”

Further, in Maneka Gandhi v. Union of India⁷⁴, the Hon’ble Supreme Court observed that, “Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.”

(B) Article 19 - Right to Freedom

The Right to freedom has been guaranteed under Article 19 of the Constitution of India. The relevant clauses with regard to freedoms guaranteed under Article 19 as well as the restrictions imposed upon such freedoms are discussed in the following paragraphs:

• Article 19(1)(a) - Freedom Of Speech And Expression

Free speech is the first chapter of liberty. In a democratic society, freedom of speech and expression is an essential right which provides an opportunity to every individual to come forward with certain ideas and opinions, which is a basic requirement for the development of any society. Article 19(1)(a) of the Constitution of India discusses about to the right to freedom of speech and expression. The term freedom of speech and expression refers to the right to express or communicate one’s inner feelings. It is a way to make understand the listener about one’s ideas and philosophies. It is also a way to record one’s concern, to record the dissent or disagreement upon certain issues. It is sometimes used to criticize the issues which are not feasible and does not fit one’s interest as well as the interest of society at large and it also includes the right to give an opinion upon certain issues.

In Union of India v. Motion Picture Association⁷⁵, the Hon’ble Supreme Court observed, “Undoubtedly, free speech is the foundation of a democratic society. A free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing viewpoints, debating and forming one shown views and expressing them, are the basic indicia of a free society. This freedom alone makes it possible for people to formulate their own views and opinions on a proper basis and to exercise their social, economic and political rights in a free society in an informed manner. Restraints on this right, therefore, have been jealously watched by the courts.”

The right to freedom of speech and expression includes right to dissent, right to opinion and right to disagreement. These rights give opportunities to every citizen to suggest, recommend and fairly criticize the policies of the government for the sake of the development of the nation.

Hon’ble Justice Mr. Deepak Gupta in a lecture organized by Supreme Court Bar Association stated, “The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view would inhere inherently in each and every citizen of the country.”⁷⁶

In Sakal Papers v. Union of India⁷⁷, the Hon’ble Supreme Court observed, “This Court must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.”

Hon’ble Justice D. Y. Chandrachud⁷⁸, in a lecture at the High Court of Gujarat stated, “Within the bounds of law, liberal democracies ensure that their citizens enjoy the right to express their views in every conceivable manner, including the right to protest and express dissent against prevailing laws.”⁷⁹

He further stated that, “infringing the rights to ask question hampers the political, economic, cultural and social growth, the destruction of spaces for questions and dissent destroys the basis of all growth — political, economic, cultural and social. In this sense, dissent is the safety valve of democracy. The silencing of dissent and the generation of fear in the minds of people go beyond the violation of personal liberty and a commitment to constitutional values – it strikes at the heart of a dialogue-based democratic society which accords to every individual equal respect and consideration.”⁸⁰

In Maqbool Fida Husain v. Raj Kumar Pandey⁸¹, the Hon’ble High Court of Delhi observed, “the right to dissent is the hallmark of a democracy. In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”

The free speech has always been a topic of interpretation especially when it comes to the criticism against the policies of the government. However, sometimes free speech leads to threat to the nation, which challenges its sovereignty and integrity, hence, reasonable restrictions are necessarily required to be imposed upon, because humans are extremely desirous in nature and in case their desires are not controlled, it may lead to severe imbalance in the society as every individual might exercise his right while putting other’s right on stake, therefore, the desire of every individual is required to be controlled. Thus, freedom of speech and expression has a wide circle having a point to control in the form of reasonable restriction as enshrined in the Article 19(2) of the Constitution of India.

• Article 19(1)(b) - Right To Assemble Peaceably And Without Arms

Article 19(1)(b) of the Constitution of India guarantees its citizens, “the right to assemble peaceably and without arms.” The right to assembly includes the right to take out the processions or march peacefully, right to hold meetings peacefully and right to peaceful protest as well. It is a crucial right for the development of any nation including India. Its essence has been noted in the pre-independence era when India was a British Colony, and various groups of freedom fighters were active in carrying out the protests, march, assemblies etc. against the policies of the British Government. Since then, these rights are deemed to be an essential aspect for a democratic country like India which keeps an eye on the policies of the government. In Ramlila Maidan Incident v. Home Secretary, Union of India⁸², the Supreme Court had stated, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”

Article 19(1)(b) however, does not give the absolute right to the citizens. Clause 3 of Article 19, imposes reasonable restrictions upon exercise of rights guaranteed under Article 19(1)(b) in the interest of sovereignty and integrity of India or public order, which reads as, “Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.”⁸³

There has been a debate in the Indian Judiciary with regard to the obstruction of public places during the protests. The Hon’ble Supreme Court has always raised a concern towards obstruction of the public places, and made an opinion that no inconvenience to the public is tolerable and there must be some designated places to carry out the protests. In Mazdoor Kisan Shakti Sangathan v. Union of India⁸⁴, The Hon’ble Supreme Court has observed, “…holding protests and demonstrations is an accepted right, at the same time, nobody can claim that I have a right to hold demonstration at one particular area only. While regulating such demonstrations in public interest, particular areas can be earmarked...” Considering the inconvenience caused to the public, the Hon’ble Court has observed, “The underlying message is that certain categories of peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed so as to enable the protestors to exercise their right and, at the same time, ensuring that no inconvenience of any kind is caused to the residents.” In a recent case of Amit Sahni v. Commissioner of Police⁸⁵, the Hon’ble Supreme Court while dealing with the right to protest and obstructing the public places, has observed, “Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.” The Court further also observed, “We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.”

• Article 19(1)(c) - Right to Form Association or Union

Every citizen is free to form an association or union or to participate or to associate in any groups of his choice. The freedom of association has been guaranteed under Article 19(1)(c) of the Constitution of India, which reads as, “All citizens shall have the right to form associations or unions”. The right to freedom of association or union is not absolute in nature and in the interest of the sovereignty and integrity of India, some reasonable restrictions can be imposed upon exercising such rights under Article 19(4), which reads as, “Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause.” In Damyanti Naranga v. Union of India⁸⁶, the Hon’ble Supreme Court has observed, with regard to the Article 19(4), that, “reasonable restrictions can be imposed only in the interests of the sovereignty and integrity of India, or in the interests of public order or morality.”

(C) Article 21 - Right to Life

Article 21 of the Constitution of India deals with the right to life and personal liberty, which reads as “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

The right to life comes after every other right. It is the extremely basic and minimum requirement which is unavoidable for every individual and is fundamental to the extent that even an iota of its infringement makes the life meaningless and incomplete. The right to life has received widest interpretation than any other provisions of the Constitution. It has many facets and dimensions and every individual deserves to enjoy such freedoms, and hence merely living, eating and drinking are not life. The Hon’ble Supreme Court in plethora of judgments has confirmed that Right to life is something more than mere an animal existence.⁸⁷

Further reading of Article 21 connotes the concept “procedure established by law” which suggests that the state can put certain limitations upon exercising the right to life. It is however, to be kept in mind that the limitations must not be unreasonable, unfair or arbitrary.

In Maneka Gandhi v. Union of India⁸⁸, the Hon’ble Supreme Court gave a new dimension to the Article 21 and observed that “the procedure established by law must be fair, just and reasonable, not fanciful, oppressive or arbitrary.”

Much similar observation was made in Mithu v. State of Punjab⁸⁹, wherein the Hon’ble Supreme Court observed that, “the court has power to see that the substantive law prevailing in the country is just, fair and reasonable.”

V. Challenges to the amendment of 2019

There has been lots of hue and cry in the society after the Unlawful Activities (Prevention) Amendment Act, 2019. The critics have raised their voices as the said amendment thereby categorizing ‘individuals’ as terrorist is violative of the Articles 14, 19 and 21 of the Constitution of India. On the other hand, the government is on the stand that the said amendment is very crucial in the interest of securing and protecting the sovereignty and integrity of India.

According to the statistics published by the National Crime Records Bureau⁹⁰, Ministry of Home Affairs, Government of India, there has been increase of incidences under UAPA year after year. In 2017 only, 901⁹¹ incidences were reported, however, in 2018 it was 1182⁹² incidences while in 2019 there had been increase in number and the data reached to 1226 incidences⁹³. The statistics reveals that there had been tremendous increase in the incidences and arrests under the UAPA. In 2019 only, there had been 1948⁹⁴ arrests under the UAPA. It is noteworthy to mention here that in any case after following due procedure, if the accused persons are found guilty, it will certainly be a matter of great concern for the security and integrity of India. On the other hand, if such accused persons are found not guilty, it will cause to the grave violation of their basic rights guaranteed by the Constitution of India.

The Special Rapporteur had commented on the Unlawful Activities (Prevention) Amendment Act, 2019. The Special Rapporteur reiterated their grave concern over the rights which are restricted by the implication of the law and its amendments. The Special Rapporteur also raised the concern over failure of legislation to meet the obligations towards the human rights standard. The Special Rapporteur thus recommended the government to evaluate and if necessary review or refer it back to the parliament for reconsideration of the law to ensure the consistency with the International Human Rights Standard. ⁹⁵

The United Nation High Commissioner for Human Rights, Michelle Bachelet urged the Government of India with regard to the arrests made under the UAPA, in her words, “I urge the Government to ensure that no one else is detained for exercising their rights to freedom of expression and peaceful assembly – and to do its utmost, in law and policy, to protect India's robust civil society.” ⁹⁶

Professor (Dr.) Faizan Mustafa, a renowned legal scholar commented on UAPA, “dissent is an essence of democracy and criticizing government is good for country.” On point of justice he stated “righteousness is the source, the substance and the ultimate end of law. Law without justice is unthinkable.” He stated that “unfortunately nowadays law is not doing justice but power has become the basis of law and UAPA is such a law which does not demonstrate the justice but it demonstrates the power.” On 2019 amendment he stated that, “A draconian amendment has been made in 2019, which empowers the government to declare any individual or organization as a terrorist, which is a severe blot upon civil liberties”. He further stated that, “perhaps UAPA will not be able to terrorize the terrorists but it terrorizes the citizens”. In his concluding remarks he stated that “Law should be amended and be made compatible with due process.” ⁹⁷

Mihir Desai, Senior Advocate, Supreme Court of India, in a lecture while discussing the UAPA stated that, “This law, its use, it’s not a misuse, it’s use to keep peoples behind bars for years and years together without their being any justifiable cause and therefore I feel that it’s time that we all demand that a law like UAPA be repealed altogether. In order to fight terrorism you don’t need a law like UAPA, you have enough provisions under the IPC, So, you don’t need a separate law to deal with it. A separate law is needed only in order to crush dissent, and that’s what is being used for, that’s why we should all ask for to be repealed.”⁹⁸

Most recently on June 15, 2021, the Hon’ble High Court of Delhi, while deciding Criminal appeals, has granted bail to three appellants arrested under the UAPA. The Hon’ble Court, while delivering three different orders for all the three appellants, was of the view that prima-facie offences under UAPA are not made out against appellants. The Hon’ble Court has drawn a line of distinction between the right to protest and terrorist activities. The Hon’ble Court in its words has also expressed grave concern with the issues pertaining to dissent, and has observed that, “we are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy.”⁹⁹

On the point of protest the Hon’ble Court has observed that, “the right to protest is a fundamental right that flows from the constitutionally guaranteed right to assemble peaceably and without arms enshrined in Article 19(1)(b) of our Constitution, surely the right to protest is not outlawed and cannot be termed as a ‘terrorist act’ within the meaning of the UAPA, unless of course the ingredients of the offences under sections 15, 17 and/or 18 of the UAPA are clearly discernible from the factual allegations contained in chargesheet and the material filed therewith.”¹⁰⁰

The Hon’ble Court further observed, “even if we assume for the sake of argument, without expressing any view thereon, that in the present case inflammatory speeches, chakkajams, instigation of women protesters and other actions, to which the appellant is alleged to have been party, crossed the line of peaceful protests permissible under our Constitutional guarantee, that however would yet not amount to commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act as understood under the UAPA.”¹⁰¹

On the point of allegations the Hon’ble Court has observed, “in our view, on an objective reading of the allegations contained in the subject charge-sheet, there is complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence, contained in the subject charge-sheet that would make-out the ingredients of the offences under sections 15, 17 or 18 UAPA. Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation. Wanton use of serious penal provisions would only trivialise them.”¹⁰²

State of NCT Delhi on the other hand approached the Hon’ble Supreme Court through Special Leave Petition¹⁰³ against the order of the Hon’ble High Court of Delhi. The Hon’ble Supreme Court asked the respondents to file the counter affidavits within four weeks, while also directed that “in the meantime, the impugned judgment shall not be treated as a precedent and may not be relied upon by any of the parties in any of the proceedings”. The Hon’ble Supreme Court however, clarified that the bail of the respondents are not inferred at this stage.

• Pending Writs On Constitutionality Of The UAPA Amendment, 2019

A Public Interest Litigation (PIL) has been filed under Article 32 of the Constitution of India titled as Sajal Awasthi v. Union of India¹⁰⁴, wherein the petitioner has challenged the constitutionality of Unlawful Activities (Prevention) Amendment Act, 2019, on the grounds that categorization of “individual” as terrorist amounts to violation of Article 14, 19 and 21 of the Constitution of India. Another writ has been filed which is titled as Association for Protection of Civil Rights v. Union of India¹⁰⁵, on the same grounds. The Hon’ble Supreme Court of India clubbed both the cases together and issued notices to the respondents vide its order dated 06-09-2019.

The petitioners enlightened the fact that the Amendment of 2019 shall cause to identify the individual as terrorist without any scrutiny and even before the commencement of trial, and thus violates the basic rights of the Constitution viz. right to equality under Article 14, right to freedom of speech and expression under Article 19(1)(a) and right to life under Article 21. With regard to the right to equality, the petitioner contended that the provisions of Amendment of 2019 are arbitrary in nature as it nowhere provides the grounds for categorizing someone as a terrorist and any arbitrary act leads to the violation of right to equality. With regard to right to life under Article 21, the petitioner contended that the right to reputation is an integral part of the right to life guaranteed under the Constitution of India, and any arbitrary exercise of power under Section 35 will take away the reputation of an individual. With regard to Article 19(1)(a) i.e., the freedom of speech and expression, the petitioners contended that right to dissent is an important aspect of right to freedom of speech, and the amendment goes against right to dissent and thus against the right to free speech.

VI. Conclusion

Undoubtedly, India is facing the threats of terrorism which has badly hampered the society at large and hence the ultimate goal of our government is to uproot terrorism from India. Therefore, to accomplish such goal, it is necessary for the government to enact or amend the laws to secure and protect the sovereignty and integrity of India. On the other hand, in a democratic country like ours, it is quite necessary that such enactments or amendments must be in conformity with the basic rights enshrined in the Constitution of India.

The most recent amendment of 2019 in the UAPA is welcomed to the extent that its provisions must not be misused and basic rights of the individuals which have been guaranteed by the Constitution of India must not be violated. Thus, keeping in view the sovereignty and integrity of India as well as basic rights of the individuals, there must be proper checks and balances while implementing such laws so as to maintain the peace and harmony in the society, as we already have dreadful past experiences of repealed anti-terror laws.

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Footnotes

1. Author is a Research Scholar at School of Law and Governance, Central University of South Bihar, Gaya, India

2. Substituted by the Constitution (First Amendment) Act, 1951. ↩

3. Substituted by the Constitution (Sixteenth Amendment) Act, 1963. ↩

4. The Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967). ↩

5. The Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

6. The Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

7. The Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

8. The Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

9. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

10. The Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004), s. 2(1)(k) reads as - “terrorist act” has the meaning assigned to it in Section 15, and the expressions “terrorism” and “terrorist” shall be construed accordingly. ↩

11. The Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004), s. 2(1)(l) reads as – “terrorist gang” means, “any association, other than terrorist organization, whether systematic or otherwise, which is concerned with, or involved in, terrorist act.” ↩

12. The Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004), s. 2(1)(m) reads as - “terrorist organisation” means, “an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed.” ↩

13. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

14. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

15. The Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004), s. 16(1)(a). ↩

16. The Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004), s. 16(1)(b). ↩

17. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

18. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

19. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

20. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

21. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

22. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

23. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

24. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

25. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

26. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

27. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

28. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2004 (Act 29 of 2004). ↩

29. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

30. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

31. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

32. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

33. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

34. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

35. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

36. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

37. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

38. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

39. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

40. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

41. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

42. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

43. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

44. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

45. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

46. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

47. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2008 (Act 35 of 2008). ↩

48. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

49. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

50. Amended by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

51. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

52. Omitted by Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

53. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

54. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

55. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

56. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

57. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013). ↩

58. The Unlawful Activities (Prevention) Amendment Bill, 2019, PRS Legislative Research, available at: https://prsindia.org/billtrack/the-unlawful-activities-prevention-amendment-bill-2019; (last visited on May 25, 2021). ↩

59. The Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

60. The Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

61. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

62. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

63. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

64. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

65. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

66. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

67. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

68. Substituted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

69. The Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019), s. 25(1) reads as - “…in which such property is situated, or where the investigation is conducted by an officer of the National Investigation Agency, with the prior approval of the Director General of National Investigation Agency, make an order…” ↩

70. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

71. Inserted by the Unlawful Activities (Prevention) Amendment Act, 2019 (Act 28 of 2019). ↩

72. AIR 1952 SC 75. ↩

73. AIR 1974 SC 555. ↩

74. AIR 1978 SC 597. ↩

75. (1999) 3 SCR 875. ↩

76. Hon’ble Mr. Justice Deepak Gupta, Democracy and Dissent, Held at Indian Society of International Law, New Delhi on February 24, 2020, available at: https://images.assettype.com/barandbench/2020-02/28f4cb42-ea4a-4f36-9864-17ba9415a2ba/SCBA_SPEECH___Justice_Deepak_Gupta___24_02_2020.pdf (last visited on May 29, 2021). ↩

77. AIR 1962 SC 305. ↩

78. Hon’ble Dr. Justice D.Y. Chandrachud, The Hues that are India: from Plurality to Pluralism, Justice P. D Desai Memorial Lecture 2020, Held at High Court of Gujarat February 15, 2020, available at: http://www.asiaconverge.com/wp-content/uploads/2020/01/2020-02-15_Full-speech-Justice_DY_Chandrachud___Justice_PD_Desai_Memorial_Speech.pdf (last visited on May 29, 2021). ↩

79. Ibid. ↩

80. Ibid. ↩

81. (2008) Cri L.J. 4107. ↩

82. (2012) 5 SCC 1. ↩

83. The Constitution of India, art. 19(3). ↩

84. AIR 2018 SC 3476. ↩

85. (2020) 10 SCC 439. ↩

86. AIR 1971 SC 966. ↩

87. Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295; Charles Sobraj v. The Suptd., Central Jail, Tihar, New Delhi, AIR 1978 SC 1514; Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, (2003) 7 SCC 749; Munshi Singh Gautam v. State Of M.P, (2005) 9 SCC 631; Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297; Sunil Batra v. Delhi Administration, AIR 1980 SC 1579. ↩

88. AIR 1978 SC 597. ↩

89. AIR 1983 SC 473. ↩

90. National Crime Records Bureau, Ministry of Home Affairs, Government of India, “Crime in India 2019”, Statistics Volume – I, available at: https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf (last visited on May 29, 2021). ↩

91. Ibid ↩

92. Ibid ↩

93. Ibid ↩

94. National Crime Records Bureau, Ministry of Home Affairs, Government of India, “Crime in India 2019”, Statistics Volume – II, available at: https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%202.pdf (last visited on May 29, 2021). ↩

95. The United National Mandate of the Special Rapporteur(s) addressed to India, OL IND 7/2020, available at: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25219 (last visited on May 29, 2021). ↩

96. Michelle Bachelet, Bachelet dismayed at restrictions on human rights NGOs and arrests of activists in India, available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26398 (last visited on May 29, 2021). ↩

97. Faizan Mustafa’s Legal Awareness Web Series: LAW’s, UAPA: Is it being misused, March 12, 2021, available at: https://www.youtube.com/watch?v=qG3XvAgmF4s (last visited on June 7, 2021). ↩

98. KG Kannabiran Lectures on Law, Justice and Human Rights, The Problem of Preventive Detention in India, November 23, 2020, available at: https://www.youtube.com/watch?v=30wFBnZWEQY (last visited on June 11, 2021). ↩

99. Natasha Narwal v. State of Delhi NCT, CRIMINAL APPEAL NO. 82 OF 2021. ↩

100. Devangana Kalita v. State of Delhi NCT, CRIMINAL APPEAL NO. 90 OF 2021. ↩

101. Devangana Kalita v. State of Delhi NCT, CRIMINAL APPEAL NO. 90 OF 2021. ↩

102. Asif Iqbal Tanha v. State of NCT of Delhi, CRIMINAL APPEAL NO. 39 OF 2021. ↩

103. State of NCT of Delhi v. Devangana Kalita, S.L.P. (CRIMINAL) NO. 4289 OF 2021; State of NCT of Delhi v. Natasha Narwal, S.L.P. (CRIMINAL) NO. 4288 OF 2021; State of NCT of Delhi v. Asif Iqbal Tanha, S.L.P. (CRIMINAL) NO. 4287 OF 2021. ↩

104. W.P. (CIVIL) NO. 1076 OF 2019. ↩

105. W.P. (CIVIL) NO. 1096 OF 2019. ↩