New Delhi, February 19 Criticism of the government, as long as it does not incite violence, was completely permitted in a democracy and cannot be used to justify invoking the Unlawful Activities (Prevention) Act (UAPA), the Foundation for Media Professionals contended before the Delhi High Court on Thursday.
The high court began hearing a challenge to certain provisions of the Unlawful Activities (Prevention) Act on Thursday.
Senior advocate Arvind Datar appeared on behalf of the petitioner association before a bench of Chief Justice D K Upadhyaya and Justice Tejas Karia, and contended that the "vague" nature of "disaffection" in the UAPA puts citizens, especially journalists, in a "boundless sea of uncertainty" and is therefore arbitrary.
Datar said the petition challenges section 2(1)(o)(iii) of UAPA, which deals with "unlawful activity" that "causes or intends to cause disaffection against India," as well as section 43D(4), which prohibits anticipatory bail.
The petition also challenges proviso to section 43D (5), which allows a trial court to rely on a police case diary, a document with no evidentiary value, to deny bail.
"We are particularly concerned as journalists. Basically, articles by journalists that criticize a particular policy have unfortunately led to imprisonment in our cases, and we have a complete list of journalists who are in jail. Some have been granted bail, but some are still incarcerated… for criticizing policies," said the senior counsel.
"At the heart of it is that a journalist is constantly afraid that any kind of criticism would amount to disaffection towards India. I may criticize a mining policy. I may criticize any particular policy. It may portray India in a bad light. But as long as they are not inciting violence (or) promoting violence, it is not unlawful. That's democracy," he added.
Datar submitted that, under the Constitution, a citizen's freedom of speech is guaranteed, and that "disaffection," being "undefined," "unexplained," and "without any boundary," is capable of the "grossest" abuse.
"It has also been misused extensively," he remarked, adding that the provision seriously curtails Article 19(1)(a), which guarantees freedom of speech by punishing the unlawful activity of causing or intending to cause "disaffection towards India" with imprisonment of up to seven years, effectively without any bail or anticipatory bail.
"Disaffection puts the citizen in a boundless sea of uncertainty. What I think is disaffection may not be thought so by somebody else," Datar stated.
The lawyer argued that permitting a trial court to form a prima facie opinion on the accusations based on a police case diary is contrary to the law.
The law is that the case diary cannot be relied upon as it was not evidence of any fact and can only be used to contradict the investigating agency, he added.
"Many journalists are in jail for 600-700 days because they (the trial courts) see the case diary and say yes (there is a prima facie case)," he said.
Datar also said the petition challenges UAPA provisions regarding notifying terrorist outfits.
The court listed the matter for further hearing on March 17.
The court was dealing with petitions transferred from the Supreme Court, as well as the petition filed before it by the Foundation for Media Professionals against the UAPA provision, which criminalizes membership of an unlawful association.
On February 4, 2025, the top court sent petitions by Sajal Awasthi, Association for Protection of Civil Rights (APCR) and Amitabha Pande to the high court, which challenge the amendments in UAPA provisions empowering the state to designate individuals as terrorists and seize properties.
The pleas also challenge provisions to arrest and restricted bail under the UAPA.