Posted on: September 22, 2020 Posted by: admin Comments: 0

Author :  Shasvat Asim Vidyarthi

Co-Author : Parth Jatin Parikh


“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
                                                                                                                                                            ― George Orwell[1]

Man is a loquacious being and if hushed it might lead to an impasse where voicing one’s opinion will be considered as an ignominy; in such a dynamic and a fast-moving world voicing opinions irrespective of its nature should be embraced. However, there should be a reasonable amount of restriction on the opinions voiced. As Patanjali J. stated, “man as a rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals”. [2]

Freedom of speech has played an important role in the making of the Constitution of India; it remains one of the basic yet important feature of our Constitution. Freedom of speech is elucidated under Article 19(1) (a)[3] of the Constitution of India, which grants the citizens the right to freedom of speech and expression. The notion behind introducing this article in the constitution is to secure to all its citizens the liberty of thought and expression; however, this comes with reasonable restrictions to safeguard its true meaning. Over the years, judicial foresight has played a vital role in increasing the scope of freedom of speech and expression in India. In another historic case of S. Rangarajan v P. Jagjivan Ram[4], it was held that ‘every citizen has a fundamental right to form his/her opinion on any issues of general concern’. Open criticism of government policies and operations cannot be a ground for restricting expression. One such example can be taken from the case of ‘Romesh Thappar v State of Madras’[5] ; It is one of the landmark cases decided by the Supreme court of India, where the court declared that the freedom of the press as a part of freedom of speech and expression. The court rightly observed that freedom of speech holds all democratic organizations and in its absence, the proper functioning of the government is not possible.


India has been successful in the abridgment of the freedom of expression and association as it came in the form of the 16th amendment[6] to the constitution of India under which the words ‘sovereignty’ and ‘integrity’ of India were added in Article 19(2). It was under this backdrop that the ‘Unlawful Activities Prevention Act (UAPA)’ was enacted in 1967 with an object of ‘safeguarding India’s integrity’. Gradually, UAPA furnished the central government with powers to declare any organization as ‘an unlawful organization’; the government could simply declare an organization ‘unlawful’ under ‘Section 3 of the Act’.

The Act has undergone four major amendments over the years. The 2004 amendment came amidst when the ‘Prevention of Terrorism Act (POTA)’ was frowned upon as an inequitable law and there was a public uproar regarding the same, as a result of which the Government abrogated the law but on the other hand, it amended UAPA. It made cardinal changes to the definition of ‘unlawful activities’ and ‘terrorist activities’. The scope of the meaning of terrorist activities was widened and included in almost every activity as an unlawful one. Secondly, the newly widened definitions were heavily borrowed from the ‘repealed’ POTA and many other parts of the act were incorporated verbatim making the move of repealing the Act of no use. The 2008 amendment was passed during the aftermath of the ‘26/11 attacks on Mumbai’. The amendment came into force in 2008 making it a pivotal amendment of the Act because it revived some of the harshest provisions of TADA and POTA. It added a ‘maximum period’ in police custody, internment without charge sheet with certain restrictions on bail. The 2019 amendment has added ‘two notable amendments’ to the law. First, it has given the ‘National Investigation Agency (NIA)’ much elbow room to supervise the cases which are usually out of their jurisdiction. This in turn will allow the NIA to control the cases which are usually under the domain of the police in the individual states. Second and the most discussed amendment is that it allows the centre to declare any ‘individual’ as ‘terrorist’ and not only organizations.


The amendments and the law itself are considered to be a bigoted law, however when questioned that the law is ignoring the freedom of speech and expression a few points to espouse the law were put forward. The government is of the view that if the law has the provision for the centre to declare an individual as a terrorist and if the same is proven, then there should not be two opinions about it, further, it is also stated that not only terrorist/unlawful acts but also ‘planting any kind of literature’ which poses a threat to the nation’s integrity and sovereignty shall be considered as an ‘unlawful act’ under the law, because it is not only the terrorist acts but also the mind-set and propaganda behind it, further it is also said that the logic behind the amendment is to counter terrorism from right at the grass-root level. However, the points put forward are fallacious and makes the government unanswerable when the law is questioned regarding its need to declare an ‘individual as a terrorist’ and what constitutes as ‘terrorist literature’? Therefore there are some provisions in the law that needs constant supervision in order to avoid the blatant misuse of the power that is given to the centre after it’s latest amendment. The act gives unlawful terrorist acts a very small passage to go unnoticed and which otherwise are countered with much delay, another point which is of concern is that there have been several victims in the past having no links with any kind of terrorist or unlawful organizations have been brought under the UAPA making it difficult to examine the scope of an ‘unlawful act’ due to the vague definition provided by the law.


There are many drawbacks in the Act as since its inception it was rushed in the parliament. The series of these futile amendments started in the year 2004 where every other aspect of the law was put in jeopardy not only this but it also contradicted our very own Constitution, which is considered to be the cornerstone of our nation. One of the drawbacks of the 2019 amendment is that it has empowered the central government to declare an individual as a terrorist, but the government already has the power to prosecute such individuals under ‘chapter 4’ of the Act, there is no reason as to why the government will overburden an already burdened system. However, there are a few speculations as to why the government has taken such a move, it gives the central government full power to declare an individual a ‘terrorist’ even if there is lack of evidence to convict him, it also permits the government to take their targets under imprisonment without any provisions of bail. This will, in turn, give the government such a power which is at a towering risk of being misused as then there will be a committee set up by the government, which is already set up with a view that the accused is guilty, making the appeal stage futile and only time-consuming.

Secondly, after the perusal of statistics released by the National Crime Records, it proves that the law poses a threat not only to the terrorists but also to the ones who are innocent. In the year 2016, a number of 1256 cases were pending, out of which only 33 cases were tried. Not only this but the conviction rates are appalling with only 11 convictions out of the 33 cases which were tried in the year 2016, making the conviction rate only ‘33 percent’ for the calendar year. [7]This also shows that at what speed the trials are being conducted, it further makes the innocent drudge one step closer to the justice he deserves.

Recently under the UAPA, an uncorroborated case has been filed against Sudha Bhardwaj, who is a social worker. She was arrested in September with the connection of ‘Elgar Parishad’ conclave held in Pune in 2017. It was alleged that the ‘Maoists’ had backed the conclave and the inflammatory speeches delivered at the event had triggered violence at the Koregaon-Bhima war memorial but to the contrary, no evidence has been found to back up the statement given by the Pune police and unfortunately Sudha Bhardwaj has already spent a year in jail without any bail, as per the provisions of the UAPA.[8] Another recent case of this draconian law was reported in Punjab, where an 18-year-old from Amritsar, Jaspreet Singh was booked under UAPA by Punjab police. After Jaspreet’s arrest on 28th June, on 30th June, the Punjab police gave a brief report that Pakistan backed terrorists are to target socio-religious leaders and to derange the communal harmony and the plan was foiled by the arrest of the three members of Khalistan Liberation Front and Jaspreet was among the ones arrested. His co-accused was subjected to third-degree torture; fortunately, Jaspreet was not subject to such treatment as he was unwell. But in the long run, such a law where an accused can be arrested without a warrant poses such a threat. Luckily Jaspreet was set free after 16 days when Patiala court was informed by the police that there was no evidence against the accused.[9]


In India’s fight against terrorism and Naxalism, UAPA is considered to be the only way to counter the rising terrorism which poses a threat to our nation’s integrity but it also compromises the freedom of speech which one should have, no doubt it already has some reasonable restrictions but the principles of natural justice should be followed where no one should be deprived of their right to be heard and redressed. Another such instance of depriving an important right of the citizens is that the law is contrary to the notion of ‘innocent until proven guilty’ which not only violates the principles of natural justice but also the International Covenant on Civil and Political Rights, 1967[10] which considers the given principle as an important human right. This law along with its amendments are somehow curbing the very right on which the Constitution of India is based. Arresting individuals having no links with these organizations makes us question the very aim of the law which it seems the government is deviating from. The aim for which it was established is to counter what destroys or threatens the integrity and sovereignty of the nation and not what nurtures it. Further, a law where an individual can be termed as a ‘terrorist’ without any inquest cannot be considered as a law to protect the integrity of a nation and also where the right to be heard is practically seized, however, it seems very unfortunate that the law cannot differentiate between the innocent and the guilty, or it does but chooses not to?.


[1] George Orwell, ANIMAL FARM


[3] INDIA cl. 1

[4] (1989) 2 S.C.C 574

[5] AIR 1950 SC 124


[7] National Crime Records Bureau, Crime in India( Oct. 10, 2017),

[8]Press Trust of India, Sudha Bharadwaj in jail for a year, police have found no evidence, India Today, September 6, 2019.

[9] Kamaldeep Singh, 18-year-old booked under UAPA cleared of all charges, released, The Indian Express, July 14, 2020

[10] International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23 March 1976) [ICCPR].

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