UAPA Not Preventive Detention Law, Bombay HC Upholds Constitutional Validity

The Bombay High Court has recently upheld the constitutional validity of the Unlawful Activities (Prevention) Act, 1967 (UAPA), which is often referred to as India's anti-terror law.

A division Bench of Justices Ajay Gadkari and Dr Neela Gokhale ruled that the UAPA is not a preventive detention law, even though the word “prevention” appears in its title.

“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 Court held.

The Bench further added, "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.”

The Court was dealing with an appeal filed by Anil Baburao Baile, a financial advisor and social worker, who had been issued a notice by the National Investigation Agency (NIA) in connection with the 2018 Elgar Parishad violence case.

In his plea, Baile had not only challenged the NIA notice dated July 10, 2020, but also assailed the constitutional validity of the UAPA itself.

Appearing for Baile, advocate Prakash Ambedkar argued that the UAPA lacks any provision specifying its date of commencement and is therefore without legal sanction and liable to be declared invalid. The petitioner also contended that the inclusion of the word “Prevention” in the title implies that the law should be preventive in nature and not punitive.

It was further argued that the deletion and substitution of sub-clauses (4) and (7) of Article 22 through the 44th Constitutional Amendment effectively nullified laws authorising preventive detention, including the UAPA. Additionally, it was submitted that said law overlaps with IPC and that the term “unlawful activities” remains undefined in the Act.

Court's Findings

However, rejecting these arguments, the Court clarified,” 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.”

Addressing the issue regarding the absence of a commencement date, the Court referred to Section 5 of the General Clauses Act, 1897, which provides that in the absence of a specified enforcement date, a Central Act comes into effect from the date it receives the President’s assent.“Hence, a constitutional challenge to the vires of the Act on this ground alone must fail,” the Court said.

On the petitioner’s argument concerning Article 22, the Court noted,“Even if the amended sub-clauses (4) and (7) of Article 22 of the Constitution of India are yet to be notified, the original sub-clauses (4) and (7) of Article 22 remain. A constitutional provision cannot be rendered ineffective merely because the substituted provision by way of a constitutional amendment is yet to be notified.”

Addressing the distinction between the UAPA and the Indian Penal Code (IPC), the Court said,” Section 15 clearly identifies the person doing an act as specified in the provision to be committing a terrorist act. 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 offense, but that by itself would be wholly insufficient to hold that the prosecution under one Act would exclude the operation of the other Act.”

Noting that although IPC defines specific offences and corresponding punishments, it does not contain offences such as ‘terrorist act’, ‘terrorist gang’, ‘unlawful activity’, or ‘unlawful association’ as defined under UAPA, the Court said, “Since these two enactments operate in respect of different and distinct offenses, a prosecution in respect of offenses under both the enactments would certainly be maintainable.”

In conclusion, the Court said, “The UAPA, thus in its present form, is constitutionally valid and the challenge to its vires on the grounds raised by the Petitioner fails.”

Accordingly, the petition was dismissed.

Case Title: Mr. Anil Baburao Baile v. Union of India & Ors.

Judgment Date: 17th July 2025

Bench: Division Bench of Justice A.S. Gadkari and Justice Dr. Neela Gokhale