The Delhi High Court on Thursday heard a batch of petitions challenging certain provisions of the Unlawful Activities (Prevention) Act (UAPA), with the Foundation for Media Professionals arguing that criticism of government policies, so long as it does not incite violence, cannot be treated as “disaffection against India” to attract the stringent anti-terror law.
A bench of Chief Justice D K Upadhyaya and Justice Tejas Karia was hearing the matter and posted it for further hearing on March 17.
Senior advocate Arvind Datar, appearing for the petitioner association, assailed Section 2(1)(o)(iii) of the UAPA, which defines “unlawful activity” to include acts that “cause or are intended to cause disaffection against India.” He submitted that the expression “disaffection” is vague and undefined, placing citizens, particularly journalists, in a “boundless sea of uncertainty.”
According to the petitioner, the provision is arbitrary and has a chilling effect on the freedom of speech guaranteed under Article 19(1)(a) of the Constitution, as it criminalises expression with punishment of up to seven years’ imprisonment.
Datar contended that criticism of policies, even if it portrays the country in a negative light, cannot be equated with unlawful activity unless it incites or promotes violence. “As long as they are not inciting violence (or) promoting violence, it is not unlawful. That’s democracy,” he submitted.
Highlighting the impact on the media, the petitioner said journalists are under constant fear that criticism of government action could be treated as disaffection. The court was told that several journalists remain incarcerated for long periods under the UAPA for articles critical of public policies.
Datar submitted that the law, in its present form, has been “misused extensively” and allows prosecution based on an undefined standard of disaffection, which may vary from person to person.
The petition also challenges the blanket prohibition on anticipatory bail under Section 43D(4) of the UAPA and the proviso to Section 43D(5), which permits courts to deny bail if a prima facie case is made out.
Datar argued that trial courts are relying on police case diaries to form such prima facie opinions, despite case diaries having no evidentiary value and being usable only to contradict the investigating agency. This, he said, has resulted in prolonged incarceration, with some accused remaining in jail for 600–700 days.
Apart from the disaffection clause and bail provisions, the petitions also question the validity of provisions empowering the state to:
- designate individuals as terrorists,
- notify organisations as terrorist or unlawful, and
- seize properties.
The High Court is hearing these matters after the Supreme Court, on February 4, 2025, transferred to it similar petitions filed by Sajal Awasthi, the Association for Protection of Civil Rights (APCR), and Amitabha Pande challenging various UAPA amendments relating to arrest, designation, and restricted bail.
The court will continue hearing the batch on March 17.
