Senior Advocate Arvind Datar on Thursday argued before the Delhi High Court that criticism of the government or its policies, without incitement to violence, cannot attract the Unlawful Activities (Prevention) Act, 1967 (UAPA).
Datar appeared for the Foundation of Media Professionals before a Division Bench comprising Chief Justice D.K. Upadhyaya and Justice Tejas Karia. The Foundation has challenged the constitutional validity of various UAPA provisions, alleging that the statute is being misused to curb dissent under the guise of anti-terror legislation.
Challenge To Definition Of “Unlawful Activity”
Datar specifically questioned the validity of Section 2(1)(o)(iii) of the UAPA. The provision defines “unlawful activity” to include acts that cause or intend to cause disaffection against India.
According to Datar, this language is excessively broad. He argued that it could criminalise legitimate criticism of government actions.
“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,” Datar submitted.
He further contended that in a democracy, criticism that does not promote or incite violence cannot be treated as unlawful. He emphasised that free speech forms a core constitutional value and has been consistently protected by judicial precedents.
Bail Restrictions Under Section 43(D)(5)
Datar also challenged Section 43(D)(5) of the UAPA, which governs bail in UAPA cases.
The provision requires that the Public Prosecutor be heard before bail is granted. More importantly, the proviso bars bail if the Court, upon examining the case diary or the police report filed under Section 173 of the CrPC, finds reasonable grounds to believe the accusations are prima facie true.
Datar argued that this framework effectively reverses the established principle that bail is the rule and jail is the exception. He contended that reliance on the case diary — which is not substantive evidence — permits denial of personal liberty at a preliminary stage.
According to him, the proviso violates Articles 14, 19 and 21 of the Constitution.
Background Of The Petitions
The Delhi High Court is hearing a batch of petitions transferred from the Supreme Court.
In addition to the Foundation of Media Professionals, petitions have been filed by the Association for Protection of Civil Rights (APCR) and Amitabha Pande. The petitions challenge amendments to the UAPA, including provisions introduced by the Unlawful Activities (Prevention) Amendment Act, 2019.
The 2019 amendment empowered the Central Government to designate individuals — and not just organisations — as “terrorists.” The petitions also challenge provisions relating to property seizure.
The matter is scheduled for further hearing on March 17.
Title: Amitabha Pande v. Union of India & Other Connected Matters
