An activist holding up and also wearing a face mask that reads “Hum Sab Khalid Saifi” at a press conference over police investigations into the Delhi riots of February, at the Press Club of India in Delhi on September 16. Delhi Police arrested the activist Khalid Saifi in June under the Unlawful Activities (Prevention) Act in connection with the communal violence in Northeast Delhi in February. Photo: PTI
Humble though its beginnings were, the UAPA has now grown into a poisonous tree and is clearly modelled on the United States’ McCarthyite Un-American Activities Act.

The much-abused Unlawful Activities (Prevention) Act (UAPA), 1967 had humble beginnings. But the upstart soon revealed that its model was the United States’ McCarthyite Un-American Activities Act. Its ally sedition is defined in the Penal Code. The instrument it wields is the National Investigation Agency Act, 2008.

Leah Verghese, a scholar at Columbia University’s School of International and Public Service, revealed on the basis of her research into the dates of the National Crime Records Bureau (NCRB) that in 2019, 1,226 cases were filed under the UAPA, a 33 per cent increase from 2016. Is it any wonder that sedition cases have jumped also—93 cases in 2019, an increase of 165 per cent over 35 in 2016 (Hindustan Times, October 12, 2020).

The UAPA was conceived in another clime and political situation over 50 years ago, shortly after the war with China in October 1962. The south seemed to be slipping out of the Congress’ control. Following his release from prison in April 1964, after 11 years’ imprisonment, Shaikh Abdullah revived the cry of plebiscite. With his approval, Mirza Afzal Beg set up the Plebiscite Front.

Humble though its beginnings were, the UAPA has now grown into a poisonous tree. On June 17, 1966, a weaker Indira Gandhi government got an Ordinance promulgated by the President; the provisions of the UAPA were not quite identical with those of the Ordinance. Such was the furore in Parliament over its treatment as a Bill that it was scrapped.

The core of the later Bill was penalisation of “unlawful activities”, as defined by it, for which an individual was liable to punishment by imprisonment extending to 10 years, and for which an association could be declared unlawful.

“Unlawful activity” is defined by the Act as “any action taken by such individual or association (whether by committing an act or bywords, either spoken or written, or by signs or by visible representation or otherwise):

(i) which is intended or supports any claim to bring about on any ground whatsoever the cession of a part of the territory of India from the Union or which incites any individuals to bring about such cession or secession;

i(i) which disclaims or questions the sovereignty of India in respect of any part of the territory of India

(iii) which disrupts or is intended to disrupt the integrity of India”.

The definition was very nearly the same as that in the lapsed Ordinance, except for the omission of a couple of vague ingredients and one particular activity which, one would have thought, was proper concern of the Government of India to declare unlawful. This is activity which is intended to overthrow the government as by law established by “(a) Force or violence or show of force or violence (b) Pursuing any direction of any foreign country”. Why these words found no place in the Bill despite Naxalbari and much else is not easy to understand.

The case of Kashmir

The Bill said “cession of a part of the territory of India includes admission of the claim of any foreign country to any such part”. And by Section 2(d), “cession of a part of the territory of India from the Union includes the assertion of any right to determine whether such part will remain a part of the territory of India”. This latter was clearly intended to provide for advocacy of plebiscite in Kashmir.

Both are artificial definitions. “Cession” is not denial of sovereignty over a territory but an exercise of it by a freely concluded treaty of cession. India’s representative, V.K. Krishna Menon, told the Security Council on February 8, 1957: “The accession [of Kashmir], it is true, can be terminated by our sovereign will. It is possible for any sovereign state to cede territory. If as a result of a plebiscite if it ever did come, the people decided that they did not want to stay with India, then our duty at that time would be to adopt those constitutional procedures which would enable us to separate that territory.”

The restriction on the right must be “in the interests” of the various specified grounds, and it must be “reasonable”, he argued.

It is doubtful whether a restriction which bars a citizen not from saying that a territory is not part of India, but that it is a part, but one which for political reasons may be ceded voluntarily to another state, can be said to have a “rationally proximate and direct connection with the preservation of the integrity of India”. Even if it has, it is also doubtful whether such a restriction is “reasonable”. It could not possibly be the intention of the Bill to preclude any treaty of cession by the Government of India, which would be its logical result. Section 12(3) provided: “Nothing in this section shall apply to any treaty, agreement or convention entered into by the Government of India and the government of any other country or to any negotiations therefore carried on by any person authorised in this behalf by the Government of India.”

The effect of the proviso in the UAPA is that while the Government of India, through its officials, may cede away territory by treaty, the citizen may not advocate such a treaty or even commend it after it is concluded.

The prohibition of advocacy of plebiscite is clearly aimed at Kashmir. However, in contrast to the other Indian States, the Government of India entered into certain commitments to the people of Kashmir, as well as internationally, which was why in the White Paper of 1948 the government characterised the accession as “strictly provisional ” and Nehru described the Kashmir issue as an “international problem” (August 7, 1952) and one which “cannot be solved unilaterally” (February 25, 1955).

True, later the policy changed. But is the citizen bound to alter his/her views in accord with the regime’s policies? The qualified legality of the accession remained unaltered, and it is surely open to a citizen to disagree with the Government of India’s stand that the elections (such as they were) or lapse of time have altered the “strictly provisional” character of the accession.

In the course of the very speech quoted above, Krishna Menon said: “Kashmir is an integral part of India.” It could cease to be so only by an act of volition by the Government of India. “Therefore, when we came here, that was the position. And, in our desire to find settlements, we were prepared to consider various options. But at no time was the sovereignty of the Jammu and Kashmir Government ever abandoned.” Clearly, consideration of “various propositions” for settlement, which included plebiscite, was fully consistent with the sovereignty of the State. The prohibition of advocacy of a treaty of cession cannot, therefore, be said to be “in the interests of preservation of India’s territorial sovereignty”, and nor can such a prohibition be said to be a “reasonable restriction” on the right of free speech. All the more so when the prohibition will not apply to the actual conclusion of a treaty itself.

The Act, if valid as regards the country as a whole, may not be a “reasonable restriction” on the right of free speech as regards Kashmir, an issue that is even now before the United Nations. In fact, it is so sweeping in its range as to bar even the plea of settlement of the dispute on the basis of the ceasefire line, which has long been the Indian offer.

Around this time, in December 1967, this writer met the Union Home Secretary, L.P. Singh, and voiced his concerns. In the course of his exposition, L.P. Singh remarked, “I am old enough to know that such problems are not solved by legislation or by a use of force.”

A Joint Committee of both Houses of Parliament recorded evidence. Among its members were P.M. Banerjee, Madhu Limaye, P. Ramamurti, Atal Bihari Vajpayee, Y.B. Chavan and Chandra Shekhar.

DAPHTARY’S EXPOSITIONOn October 16, 1967, their witness was a foeman worthy of his steel—Attorney General C.K. Daphtary, one of the ablest and easily the most polished advocates the country has produced. It was quite obvious that he disliked the Bill; as obvious was his sense of duty to defend it as the top law officer of the Union. His exposition was laced with wit: “I may say this, that there was an original draft of this which was submitted to me when I took exception to some of the provisions whereupon certain matters were cut out and some were amended so that as it stands now, with the incorporation of the suggestions which were made in order to bring it to a stage where it would not be capable of being challenged as unconstitutional; with those changes I think it is permissible legislation under the exceptions to Article 19 of the Constitution. In other words, these are reasonable restrictions in the interests of the security, sovereignty and integrity of India. Of course, I suppose I am not called upon to express any opinion except the legal one. There I do feel that it is going as far as one can go. These are drastic powers.

“It is possible that anything honestly spoken as an opinion will come within the mischief of this section because, ‘in relation to an individual’ it says ‘an act or by words either spoken or written…which is intended or supports any claim to bring about on any ground whatsoever the cession of a part of the territory’. Now the words ‘on any ground whatsoever’ appear more than once in the Act and the other words are ‘an act or by words, either spoken or written, or by signs or by visible representation or otherwise’ which clearly means words to incite to something done actively to bring about a particular result. So, even what is called a theoretical discussion, or an idealistic discussion would not come within the scope of this clause.”

Advocacy of cession or plebiscite is perfectly legitimate.

Daphtary had a dig at the Supreme Court for its rulings on Article 14, the guarantee of equality. He began with one of the earliest judgments in 1952.

“May I answer though it is not easy to answer. Let me start with the judgment first. That was 1952. The outlook on fundamental rights and what is reasonable and proper protection has, as you are surely aware, gone through a series of changes in that particular court. There was a time in the beginning when the fundamental rights were quite firm. Then came a period when they were eroded and gradually Article 14 almost ceased to exist. Then again came a good period when the fundamental rights were put up firmly and everything was properly tested.

“Perhaps we are again coming to a period when they will not be looked upon as seriously as they used to be. The dicta have varied from period to period. There was a time when everything was looked upon very strictly. There was a period when the court was inclined to be much more generous in its looking upon the adequacy of safeguards. Coming to the actual position, I am told incidentally that it has been said that even in a judgment of this very court that the fact than an appeal lies to government is a sufficient safeguard.”

This writer was present when Daphtary “expounded” his theme in Chief Justice M.C. Chagla’s court. He said, “In its last judgment the Supreme Court said that all its judgments on Article 14 are consistent. Since I appeared in that case, I also hold the same view.” Chagla was amused but suppressed his smile. At one stage, Daphtary remarked, “We know how the tribunals in this country work. Of course, I am not making any aspersion.”

Interestingly, on February 8, 1957, Krishna Menon assured the Security Council: “If we are told that we did not permit anyone in Kashmir to say that there should be a plebiscite, I would say that there is nothing further from the truth than that. One of the political parties in Kashmir, which was allowed to fight in the election, which was registered as a party, is called the Plebiscite Front. Its leaders are out, they campaign, they even use the mosques for propaganda, and we have not denied them anything. How could we, with 70,000 people a year going there, with journalists in the place at any time, even if we wanted to? What is more, what would be the reaction upon the rest of India? Our country would not stand for that.”

To turn to another problem, is a citizen to be precluded from advocating that while Aksai Chin is a part of India, it could be in the national interest to cede it to China? As the Bill stands, advocacy of any exchange of territory, even if it be most fantastically advantageous to the country, would be unlawful.

Already, there is in the Statute Book, the Criminal Law Amendment Act 23 of 1961. Section 2 of the Act makes liable to punishment, by imprisonment extending to three years, any statement which “questions the territorial integrity or frontiers of India in manner which is, or is likely to be prejudicial to the interests or the safety or security of India”. The restraint of these provisions is in contrast to those of the present Bill, which is an attempt to solve political problems by mere legislation. The Bill’s best critique is in the words of the late Lal Bahadur Shastri. In a speech at the Vallabh Vidyanagar on October 31, 1964, he said, to quote a PTI report, “that in a democratic country like India, problems such as those in Kashmir, Nagaland and Madras should generally be tackled at the political level rather than by utilising the power of the state. He [Lal Bahadur Shastri] said some people in Kashmir and other parts of the country were advocating that the government should take action against those who talked of independence for Kahmir. But in a democracy the government did not rule merely by force. The real sanction behind it was the support it got from the public.”

But could the UAPA have been enlarged by engrafting on it provisions from, say, the Motor Vehicles Act? What was in play was a legislative sleight of hand. The Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985, and the Prevention of Terrorism Act (POTA), 2002, stank at the nostrils. Bringing them in by the back door is the UAPA.

There came an amendment in 2004 to rope in terrorism. Thirty-two “Terrorist Organisations” were listed in a Schedule. Another in 2008 furthered the same ends. And yet another in 2012, this time to catch economic offenders allied to terrorists.

Police and law and order are State subjects. A constitutional amendment and its strained interpretation were used to justify the NIA Act. The Centre steps in and imposes its own fiat on the State police. Settled rules of criminal jurisprudence regarding grant of bail, confessions and period of investigation are violated by the NIA.

Northern Ireland introduced preventive detention on August 9, 1971, only to abandon it on December 5, 1975. Preventive detention in this country is as old as independent India and is protected lovingly by its Constitution. Imprisonment is itself a form of punishment under the Penal Code (Section 53.) Detention laws empower the States to designate the place.

They send detainees to jails. This is punishment without trial. The hated Rowlatt Committee censured it a century ago. It is worth studying whether Indians enjoyed greater personal liberty in British times than they do now and whether the High Courts were more vigilant and assertive than our very own Supreme Court. The NIA is an instrument for wreaking vengeance in the hands of a vendetta-driven Central government. It is a mockery of federalism.

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