UAPA Is A 'Deterrent' To Unlawful Activities, Cannot Be Equated With Preventive Detention Due To Its Title: Bombay High Court

While upholding the constitutional validity of the Unlawful Activities (Prevention) Act (UAPA), the Bombay High Court on Thursday held that the Act can be construed to be 'deterrent' to the commission of unlawful activities, but by no stretch of imagination can it be equated with 'preventive detention.'

A division bench of Justices Ajay Gadkari and Dr Neela Gokhale rejected the petition filed by one Anil Baburao Baile, an alleged witness in the Bhima-Koregaon Elgar Parishad case, who had challenged the constitutional validity of the UAPA on the ground that there is no declaration of the date of coming into the effect of the said Act and also that the word 'Prevention' used in it, implies that it is an act which provides for 'prevention' and not for any 'penal' actions. 

The bench while dealing with the argument that UAPA is 'preventive' in nature and thus cannot have 'penal' provisions, said the same is a 'paradoxical' argument and has the effect of putting the cart before the horse.

"The 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. There are various other enactments having the word 'Prevention' in the title such as, the Prevention of Corruption Act, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Prevention of Money Laundering Act, 2002, the Immoral Traffic Prevention Act, etc. 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," the bench held.

Ironically, the UAPA 1967, originally was also titled as the Unlawful Activities (Prevention) Act, 1967, despite not containing any provision related to preventive detention at that time, the judges added. 

In its 39-page judgment, the bench made it clear that the power of preventive detention is qualitatively different from punitive detention. "The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offense. It is not a parallel proceeding and does not overlap with prosecution, even if it relies on certain facts, for which prosecution may be launched or may have been launched. The UAPA essentially and substantially contains penal provisions for committing offences specified under the Act. The word 'Prevention' appearing in the title of the enactment relates to prevention of unlawful activities and does not substantially vest precautionary power of preventive detention in any authority under the Act," the bench underscored. 

Further, the bench dealt with the argument that there is an 'overlap' in the Indian Penal Code (IPC) and the UAPA as both the enactments describe 'terrorism' and provides punishment for the same.  

IPC does not contain definition for 'terrorist acts'

"There is no offense provided in the IPC which defines as to what constitutes a 'terrorist act'. Both these enactments operate in distinct spheres in respect of the offenses specified therein. There may be some overlapping in the language of a particular offence, 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 judges opined. 

The IPC defines specific offences and corresponding punishments for committing such offences but there is no offence such as 'terrorist act', 'terrorist gang', 'terrorist organisation', 'unlawful activity' relating to cession or secession of a part of a Indian territory from the Union; or unlawful association defined in the penal code, the bench noted.

UAPA deals with activities that go against the integrity and sovereignity of India

"The UAPA, on the other hand deals with punishing the act of insurgency per se. Since these two enactments operate in respect of different and distinct offences and a prosecution in respect of offences under both the enactments would certainly be maintainable," the bench said. 

As regards the contention that no date declaring the UAPA has come into effect was ever notified by the Government of India and thus it is an illegal law, the judges noted that the in 1967, in pursuance of the Constitutional provisions, a draft Bill titled as the Unlawful Activities (Prevention) Bill was prepared to deal with individuals and associations engaged in secessionist and other activities directed against the integrity and sovereignty of the Union.

"Owing to the pressure of legislative business in Parliament during then Budget session, the Bill could not be introduced or passed. Meanwhile, Government took a decision to restrict the application of the Defense of India Act and Rules to certain States and territories and for certain purposes, connected with defense and to have recourse to the maximum extent possible to the normal laws, existing or to be enacted when necessary. With this decision, the necessity to have a law to deal with secessionist and other activities directed against the integrity and sovereignty of the Union became urgent. As, however, Parliament had by then adjourned, the President promulgated the Unlawful Activities (Prevention) Ordinance, 1966 on 17th June 1966. The Bill sought to replace the said Ordinance and the Unlawful Activities (Prevention) Act (Act 37 of 1967) was enacted on 30th December 1967," the judges explained. 

In such a backdrop, the bench said, the General Rules of Construction of the General Clauses Act, 1897 provides for coming into operation of enactments and particularly, wection 5 provides that, where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the President, in case of an Act of Parliament.

"Undoubtedly, the UAPA is an Act of Parliament. Even though there is no expression in the Act regarding the specific day on which the Act would come into operation, by operation of Section 5 of the General Clauses Act, the UAPA came into operation on the day, it received assent of the President, i.e., on 30th December 1967. Hence, a constitutional challenge to the vires of the Act on this ground alone, must fail," the bench held. 

With these observations, the judges, dismissed the petition. 

Appearance:

Advocates Prakash Ambedkar, Sandesh More, Hemant Ghadigaonkar, Hitendra Gandhi, Nikhil Kamble and Siddharth Herode appeared for the Petitioner.

Additional Solicitor Generals Devang Vyas and Anil Singh along with Special Counsel Sandesh Patil and Advocates Chintan Shah, Sheelang Shah, Prithviraj Gole, Anusha Amin and Jalaj Prakash represented Union of India.

Additional Public Prosecutor AS Shalgaonkar represented the State.

Case Title: Anil Baburao Baile vs Union of India (Criminal Writ Petition 6458 of 2021)

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