Criticising Govt Or Policies Without Incitement To Violence Can't Attract UAPA: Delhi High Court Told

Senior Advocate Arvind Datar told the Delhi High Court on Thursday that criticising the government or its policy decisions without promoting or inciting violence cannot attract the Unlawful Activities (Prevention) Act, 1967.

The senior counsel made the submission on behalf of Foundation of Media Professionals before a division bench comprising Chief Justice DK Upadhyaya and Justice Tejas Karia.

The Foundation has challenged the constitutional validity of various provisions under the UAPA, stating that the enactment is a political tool disguised as an anti-terror law and is misused by the government to target any and all forms of dissent.

During the hearing today, Datar argued that Section 2(1)(o)(iii) is unconstitutional. For context, the said provision stated that any act which causes or is intended to cause disaffection against India will be an “unlawful activity.”

Datar said that in effect of the said provision, even mere criticism of the Government becomes dissatisfaction which cannot be permitted.

“I may criticise the government or its policies or the budget decisions. It may show the government in bad light but that's the process of reform,” the senior counsel said.

“If a journalist is under constant fear that any kind of criticism which will amount to dissatisfaction towards India…. I may criticise a policy, it may show India in bad light but as long as I am not promoting violence, it is not unlawful. It is democracy,” he added.

Datar referred to various judicial precedents wherein it has been held that free speech is one of the core values of the Constitution of India.

Thereafter, he also argued against the constitutional validity of Section 43(D)(5) which puts restrictions on the grant of bail. As per the provision, no person accused can be released on bail unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.

The proviso states that the accused shall not be released on bail if the Court, on a perusal of the case diary or the report made under section 173 of the CrPC, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Datar submitted that due to the said proviso, jail is the rule and bail is an exception. He said that on a mere perusal of the case diary, bail can be denied to the accused.

“The case diary added in the proviso has to be struck down. It infringes Article 14, 19 and most essentially Article 21. Personal Liberty of a Journalist or an accused can be taken away on the basis of a document whose statement is not evidence at all,” he said.

The matter will be heard next on March 17.

The Unlawful Activities (Prevention) Amendment Act, 2019 was notified giving the Central Government power to designate an individual as a "terrorist". Notably amendment allows for notification of individuals as "terrorists" while under UAPA,1967, only organisations could be so notified.

The Court was dealing with a batch of petitions transferred from the Supreme Court. Other pleas are filed by Association for Protection Of Civil Rights (APCR) and Amitabha Pande. They challenge the amendments in UAPA provisions empowering the state to designate individuals as terrorists and seize properties.

Title: Amitabha Pande v. Union of India & Other Connected Matters