Justice A.S. Gadkari, Justice Neela Gokhale, Bombay High Court
UAPA Is Not A Preventive Detention Law: Bombay High Court Rejects Plea Challenging Constitutional Validity Of UAPA & S. 124-A IPC
|The Bombay High Court emphasised that the presumption of constitutionality is the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, unless the law is clearly unconstitutional or a fundamental right is implicated.
The Bombay High Court has upheld the constitutional validity of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 124-A of the Indian Penal Code, 1860 (IPC).
A Criminal Writ Petition was preferred under Article 226 of the Constitution, praying for an appropriate writ and/or directions to declare UAPA and Section 124-A IPC as ultra vires and unconstitutional.
A Division Bench of Justice A.S. Gadkari and Justice Neela Gokhale held, “So long as a law relating to preventive detention operates within the general scope of the affirmative words used in the respective entries of the Union and the Concurrent List, which gives that power and so long as it does not violate any condition or restriction placed upon that power by the Constitution, the Court cannot invalidate that law on the specious ground that it is calculated to interfere with the liberties of the people. In any case, as discussed herein above, the UAPA is not a preventive detention law and even if alleged by the Petitioner to be such law, the challenge to its vires on this ground, also fails.”
The Bench emphasised that the presumption of constitutionality is the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, unless the law is clearly unconstitutional or a fundamental right is implicated.
Advocate Prakash Ambedkar appeared on behalf of the Petitioner while former Additional Solicitor General (ASG) Devang Vyas and present ASG Anil Singh, APPs A.S. Shalgaonkar, and Ajay Patil appeared on behalf of the Respondents.
Case Background
The Petitioner was a self-employed citizen of India and was working as a Financial Advisor and Freelancer, also doing social work in his area of residence. The Petitioner belonged to the Mahar community included in the Scheduled Caste (SC) in the Presidential Order issued in 1950 under Article 341 of Constitution. In 2018, allegedly the organizers of a function at Sambhaji Maharaj Samadhi planned and caused an attack on innocent persons paying homage to the soldiers at the Bhima Koregaon site. An FIR was registered by the police against the perpetrators of the riot but as per the Petitioner, the Police Commissioner made out a false and fabricated case that the Elgaar Parishad caused the riot and that, the Parishad had connections with the CPI(M) Group, which is a banned organization.
The inquiry in the riot and the connection of Elgaar Parishad with the banned organization was transferred to the National Investigation Agency (NIA), which invoked provisions of the UAPA and Section 124-A of IPC against the accused. Pursuant to the Petitioner’s visit to the homage site at Bhima Koregaon, the NIA vide its notice, called upon the Petitioner to appear before the Investigating Officer (IO), in respect of the case registered under Sections 53A, 505(1)(B), and 117 read with 34 of IPC and Sections 13, 16, 18B, 20, and 39 of the UAPA. Hence, the Petitioner assailed the constitutionality of UAPA itself and consequently, challenged the notice issued by NIA.
Court’s Observations
The High Court after hearing the contentions of the counsel, observed, “… there is always a presumption of Constitutional validity of a statute. The presumption of Constitutional validity of a statute means that, the courts assume a law is constitutional unless proven otherwise. It asserts that, laws passed by the legislature are presumed to be constitutional unless proven.”
The Court noted that Section 5 of the General Clauses Act, 1897 lends constitutional validity to the UAPA, the same being notified on the date on which the President assented to the Bill on December 30, 1967.
“Secondly, in the absence of the notification effecting the constitutional amendment to a provision, the original provision in the Constitution continues to exist till such time that the amendment is notified”, it added.
The Court, therefore, concluded that the UAPA in its present form is constitutionally valid and the challenge to its vires on the grounds raised by the Petitioner fails.
Accordingly, the High Court dismissed the Petition.
Cause Title- Anil Baburao Baile v. Union of India & Ors. (Neutral Citation: 2025:BHC-AS:29833-DB)
Appearance:
Petitioner: Advocates Prakash Ambedkar, Sandesh More, Hemant Ghadigaonkar, Hitendra Gandhi, Nikhil Kamble, and Siddharth Herode.
Respondents: Former ASG Devang Vyas, Present ASG Anil Singh, APPs A.S. Shalgaonkar, Ajay Patil, Advocates Sandesh Patil, Chintan Shah, Sheelang Shah, Prithviraj Gole, Anusha Amin, and Jalaj Prakash.