Delhi HC Hears UAPA Challenge Over Disaffection Vagueness

In a pointed critique that underscores the precarious line between national security and fundamental rights, Senior Advocate Arvind Datar warned the Delhi High Court that provisions of the Unlawful Activities (Prevention) Act (UAPA) could land journalists in jail simply for criticizing government initiatives like the ongoing AI Summit or the national budget. Representing the Foundation for Media Professionals, Datar opened arguments before a bench comprising Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia on Thursday, kickstarting hearings on a batch of four petitions challenging key UAPA sections. At stake are the definitions of "unlawful activity," stringent bail restrictions, and mechanisms for labeling individuals or groups as terrorists—provisions Datar deemed vague, arbitrary, and antithetical to democracy . The court adjourned the matter to March 16, signaling intense scrutiny ahead in what could reshape the contours of anti-terror legislation in India.

This hearing arrives amid growing concerns over UAPA's expansive use, often criticized for stifling dissent under the guise of counter-terrorism. Datar's submissions highlighted how everyday policy critique risks being branded as "disaffection" against India, evoking colonial-era sedition laws and raising profound questions about Articles 14 and 19 of the Constitution.

The Petitions at Hand: A Multi-Pronged Assault on UAPA

The petitions target four critical provisions of the UAPA, enacted in 1967 and repeatedly amended to bolster anti-terror measures. Section 2(1)(o)(iii) expansively defines "unlawful activity" to include any action that causes or intends to cause disaffection against India . Sections 35 and 36 empower the government to designate individuals or organizations as terrorists, often without robust judicial oversight. Meanwhile, Section 43D(4) imposes an absolute bar on anticipatory bail, and the proviso to Section 43D(5) blocks regular bail if a perusal of the case diary reveals reasonable grounds to believe the accusations are prima facie true.

The Foundation for Media Professionals, a key petitioner, argues these clauses create a sword of Damocles over journalists and civil society. Datar emphasized the journalists' organization 's locus standi, positioning the challenge as a bulwark against the law's weaponization against free expression. Three other petitions bolster this coalition, collectively urging the court to strike down or read down these provisions for violating constitutional guarantees.

Datar's Fiery Arguments on 'Disaffection': No Boundaries to Criticism?

At the epicenter of Datar's attack is Section 2(1)(o)(iii), which he branded extremely broad, vague, and arbitrary . Drawing stark hypotheticals, he posited: “There are no boundaries, no limit now. A journalist saying the AI-summit is going wrong may be jailed. At the heart of it [the UAPA] is that a journalist is under the constant fear that any kind of criticism will amount to disaffection towards India. I may criticise a mining policy. It may show India in a bad light, but as long as I am not inciting violence or promoting violence, that’s not unlawful, it’s democracy.”

This verbatim submission echoes historical debates on "disaffection," a term rooted in pre-independence laws like Section 124A of the Indian Penal Code (sedition), stayed by the Supreme Court in 2022 pending review. Datar clarified early that his point was not to equate mere criticism with terror but to highlight the undefined scope of "disaffection," which could ensnare reporting on the AI Summit, budget shortfalls, or environmental policies. "Criticising the AI Summit, criticising the budget or criticising any government policy may all come within disaffection," he reiterated, underscoring the provision's potential to blur dissent with disloyalty.

Assault on Bail Safeguards: Case Diaries Under Fire

Datar extended his salvo to the bail regime, arguing Section 43D(4)'s anticipatory bail ban discriminates against UAPA accused compared to similar offenses under the Bharatiya Nyaya Sanhita (BNS), violating Article 14's equality mandate . Even more egregiously, the proviso to Section 43D(5) permits bail denial based on case diaries—internal police records traditionally insulated from evidentiary use.

"A case diary can only be used to contradict the police officer," Datar asserted, invoking a lineage of judicial precedents dating back to 1897 under the Code of Criminal Procedure (CrPC Section 172). Courts have long held case diaries unreliable for substantive proof due to their subjective nature and risk of fabrication. By elevating them to a bail-deciding tool, UAPA inverts this safeguard, potentially perpetuating indefinite detention on flimsy grounds.

Targeting Terrorist Designations: Sections 35 and 36 in the Crosshairs

Sections 35 and 36, introduced via 2019 amendments, allow executive designation of "terrorists" without prior hearing, a power Datar likened to unchecked stigma. He argued these enable guilt by association, ensnaring activists, journalists, or organizations in a perpetual terror label, complicating bail and trials. Though less detailed in initial arguments, these sections form the backbone of recent UAPA controversies, from Bhima Koregaon to farmers' protests.

Constitutional Scrutiny: Vagueness, Overbreadth, and Article 14

Datar's pleas rest on bedrock constitutional doctrine. Under Article 14 , laws must be definite; vagueness invites arbitrary enforcement, as affirmed in Shreya Singhal v. Union of India (2015), which struck down Section 66A IT Act for chilling speech. Section 2(1)(o)(iii)'s "disaffection" fares no better—undefined and subjective, it fails the precision test, much like sedition's "exciting disaffection" critiqued in Kedar Nath Singh v. State of Bihar (1962).

Article 19(1)(a) looms large: Criticism of policy, absent incitement ( Brandreth test), is protected speech. UAPA's dragnet risks a chilling effect , deterring investigative journalism amid rising attacks on media (India ranks 159/180 in 2023 World Press Freedom Index). On bail, the disparity with BNS exposes Article 14 infirmity, echoing Arnesh Kumar guidelines against mechanical arrests.

Case diaries' misuse contravenes CrPC 172, as elaborated in Tahsildar Singh v. State of UP (1959): They are for police aid, not prosecution crutches. Datar's invocation of 1897 origins (likely Queen Empress v. Babu Ram ) reinforces this.

Implications for Journalism and Legal Practice

For legal professionals, this challenge heralds tactical shifts. Criminal lawyers may pivot to vagueness pleas in UAPA defenses, citing Datar's template for Article 14/19 intersections. Media litigators gain ammunition against SLAPP suits (Strategic Lawsuits Against Public Participation), while constitutional benches could harmonize UAPA with SC's sedition rethink.

Journalists face existential peril: UAPA's low 2-3% conviction rate (per NCRB) belies its detention prowess—over 10,000 cases annually, many prolonged. Examples abound: Siddique Kappan (2020 Hathras case), Disha Ravi (toolkit), underscoring the "terrorist" tag's stigma. Success here could mandate mens rea thresholds, narrowing "disaffection" to violence advocacy.

Broader justice system ripples include bail reform pressures, urging legislative tweaks akin to 2023 amendments. Globally, it spotlights India's terror laws amid FATF scrutiny.

Road Ahead: A Defining Moment for UAPA

With hearings resuming March 16, the Delhi HC holds potential to recalibrate UAPA's balance between security and liberty. Datar's clarion call—that democracy thrives on critique, not fear—resonates profoundly. Legal eagles await whether the bench interrogates government's counter-affidavits or signals interim relief. In an era of polarized discourse, this litigation could fortify the fourth estate or entrench executive overreach— a verdict lawyers won't ignore.