Atif Alam and Srijan S. Kashyap
Abstract
This article examines the use of the Unlawful Activities (Prevention) Act (UAPA),[1] focusing on the balance between State authority and individual rights in the context of public security. It analyses the expanding interpretation of “Terror Acts” and the bail framework in relation to pre-trial detention. The article traces the evolution of anti-terror laws from TADA and POTA to UAPA and argues that UAPA is a necessary element in combating terrorism and maintaining public security. The article critiques the 2019 amendment made to the UAPA for undermining due process and fundamental rights. It acknowledges that the UAPA has the implicit right to be misused, ultimately threatening constitutional values and democratic accountability in India. The article concludes with multiple recommendations in enforcement of the UAPA to ensure that its implementation is fair and balanced.
Keywords: UAPA, POTA, TADA, Umar Khalid, Sharjeel Imam, Article 21, Section 15, Pre-trial detention
INTRODUCTION:
The Indian Supreme Court in early January 2026 rejected the bail petition of Umar Khalid and Sharjeel Imam in a case registered under the Unlawful Activities (Prevention) Act (UAPA) in connection with an alleged “larger conspiracy” behind the February 2020 communal riots in New Delhi.[2] The Hon’ble court held that their activities were not intermittent but “architectural” in nature, which places them at the top of the chain of command of the alleged conspiracy.[3] A division bench of Justices Aravind Kumar and NV Anjaria delivered the verdict.
Umar Khalid is a young Indian scholar of Jawaharlal Nehru University (JNU) and an activist who was arrested for leading peaceful protests opposing the religiously discriminatory Citizenship Amendment Act (CAA).[4]
In the aftermath of one such protest, where Khalid delivered a speech on the lines of Gandhian philosophy of non-violence and during the speech, he went on to say, “We will not respond to hate with hate. If they spread hate, we will respond to it by spreading love. If they beat us with lathis (sticks), we will hold the tri-colour aloft. If they fire bullets, then we will hold the Constitution and raise our hands. If they jail us, we will go to jail happily singing, “Saare Jahaan Se Accha, Hindustan Hamara”. But we will not let you destroy our country.”[5]
A few days after he delivered the speech, he was charged under FIR 59/2020[6] with offences under the IPC,[7] 1967 Arms Act,[8] and Unlawful Activities (Prevention) Act (UAPA). Charges include but are not limited to rioting (Sec. 147 IPC), rioting with a deadly weapon (Sec. 148 IPC), murder (Sec. 302 IPC), attempted murder (Sec. 307 IPC), sedition (Sec. 124A IPC), “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony” (Sec. 153A IPC),[9] unlawful activities (Sec. 13 UAPA), terrorist acts (Sec. 15 & 16 UAPA), raising funds for terrorist acts (Sec. 17 UAPA), and conspiracy (Sec. 18 UAPA).[10]
FACTUAL BACKGROUND:
The Indian Supreme Court, in its recent verdict, stated that there were several reasonable grounds to rely upon the allegations against Umar Khalid that were prima facie true, invoking Section 43D(5),[11] which bars bail in certain scenarios. The judges applied the prima facie test strictly to the prosecution documents,[12] including charge sheets spanning thousands of pages and multiple electronic records, without weighing the credibility or interpreting the ambiguities in the records, which are reserved for trials. As per the court’s verdict, Khalid’s attributed role involved strategic planning of disruptions via “any other means” under Section 15 of UAPA, deemed sufficient for “terrorist act” even absent direct violence or recoveries, as conspiracy roles are distributed and organisers need not execute terminal acts.[13] Prolonged incarceration (over five years) was acknowledged under Article 21[14] but held subordinate to the statutory embargo unless the prima facie threshold fails.
Sharjeel Imam is a student activist, doctoral scholar, and public intellectual. As far as the charges against him are concerned, he had led peaceful protests as part of the protests against religious discrimination in the form of the Citizenship Amendment Act.[15] It needs to be understood that he had led peaceful protests without wielding any weapons or producing any forms of violence; the only fault he had was to make statements of a radical, inflammatory, and confrontational variety in requesting mass protests against the act on the premise of it being a violation of constitutional principles in the first place.
Through such a speech, which he made at the Aligarh Muslim University in January 2020, he exhorted the protesters to participate in disruptive but non-violent forms of civil rebellion, such as chakka jams or roadblocks, but intended to compel the State to take note of the public dissent.[16] The speech was said to be provocative and politically unsettling, and even the media portrayed it as so, but the fact is that it remained rooted in the essence of protest, and not violence. But, within days, the machinery of the State moved ever so swiftly to transform this expression of dissent into a national security offence. There were multiple FIRs registered in multiple states, across jurisdictions, and the Unlawful Activities (Prevention) Act or UAPA was invoked, which placed Imam within the legal category reserved for terrorists and insurgents. For Imam, charges include but are not limited to “criminal conspiracy” (Sec. 120B IPC), “waging war against the Government of India” (Sec. 121 IPC), “conspiracy to wage war” (Sec. 121A IPC),[17] “sedition” (Sec. 124A IPC), “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony” (Sec. 153A IPC).[18] Under UAPA, unlawful activities (Sec. 13 UAPA), “terrorist acts” (Sec. 15 UAPA), and “conspiracy” (Sec. 18 UAPA).[19]
This invocation of UAPA revealed a troubling judicial and executive willingness to bend the constitutional wavelength between what is considered speech and terror. The Indian Penal Code (which has now been replaced by the Bharatiya Suraksha Sanhita or BNS in 2023)[20] already contained sufficient provisions to address issues like incitement, unlawful assembly, and hate speech. The decision to escalate the prosecution under UAPA, therefore, seems not to be driven by necessity but by intention, and by invoking this anti-terror law, the State ensured prolonged incarceration, severe restrictions on bail, and the insulation of its narrative from early judicial scrutiny (to some extent).
What is even more particularly alarming is the absence of any direct link between the Imam’s speech and actual violence in the prosecution. There were no arms recovered (as was alleged), no terror funds traced, and no operational networks were uncovered. Rather, it seems that the Government has only based its case entirely upon a rather wide and vague definition of conspiracy, indicating that the words of the Imam were a part of a larger model that was actually focused upon destabilising the nation, in which his ideology as well as his religion were treated as indicative of his criminal behaviour. However, it will be relevant to mention that he managed to secure bail from the Delhi High Court in 2024 related to a case involving his speeches that he had made while protests were ongoing about the Citizenship Act,[21] even though he continues to remain in jail for his alleged association with a conspiracy involving riots that occurred back in 2020, as charged under UAPA.
HISTORICAL EVOLUTION OF TADA, POTA, AND UAPA:
The enactment of the Unlawful Activities (Prevention) Act first came into force in 1967, after India’s independence, when the country was facing numerous threats and internal security challenges, along with separatist movements in many regions, especially in West Bengal and the Northeastern States.[22] In response to these movements, the government felt the need to build a legal framework to combat the unlawful activities that can harm the integrity and sovereignty of the nation (including terrorism, organised crime, and any serious harm to public security). The primary motive to bring UAPA into force was to grant power to the enforcement authorities with equipped tools to tackle the internal threats and security, and any other forms of violence that may harm the nation’s public security. The legal framework aimed to give legally valid grounds to the government to designate associations as unlawful,[23] put restriction and ban on terrorist funding, detain and arrest individuals involved in any unlawful activities.[24] Over the decades, the UAPA has significantly evolved with the growing security concerns of the nation. Various amendments to the UAPA enhanced its interception of dispatches, broadening the government’s position on the surveillance capabilities. The originality of the UAPA in tackling the specific indigenous challenges of the 1960s has evolved into a comprehensive legal framework for combating various unlawful activities within the nation and public spaces.
The 2019 amendment further strengthened the government’s power to designate who can be a terrorist or what may be a terrorist act, and thus, the UAPA becomes vaguer, and becomes subject to arbitrary detention of political prisoners and almost anyone who questions the government in power.[25] The amendment primarily changed Section 35, empowering the central government to designate individuals as terrorists via notification in the Official Gazette, adding them to Schedule IV — previously limited to terrorist organisations only.[26][27] Many critics argued that the individual designation power grants arbitrary executive authority without prior judicial review or trial, violating due process, right to reputation under Article 21, and freedom of speech under Article 19(1)(a).[28]
Before the amendment in UAPA with those changes that brought it more in line with what would be considered typical in terror law, there was a Prevention of Terrorism Act, 2002, or POTA. However, in its journey through enforcement, POTA was not without controversy and was repealed shortly after it came into effect. The circumstances were such that there was arguably a void or a kind of gap in terror law within the legal community, primarily since the Terrorist and Disruptive Activities Act, 1986, or TADA, had lapsed in 1995.[29] This particular legislation had drawn a lot of scathing reviews, and political misuses were arguably made. Additionally, there was no need for it to be renewed from a government viewpoint. POTA, in a way, argues a case as a continuation of TADA. The circumstances had not ceased, in any way, from the Kargil War, 1999, and there was arguably a need for India to step up its capabilities in addressing issues of terror, or in a more overarching way, issues of a threat to national security and interests. But what seemed to act as a final catalyst was the Parliament Attack of 2001, as this was perceived as a direct attack on the constitutional core of India, and with it the need for a tough and effective anti-terror law was felt and led to the enactment of POTA, which seemed to be an exceptional, time-bound statute, purposed to deal with terrorism.[30] It contained provisions that were seen to be highly controversial, such as the admissibility of police confessions,[31] extended detention, bail restrictions, etc. These provisions were seen to be a tool that can be misused and hinder procedural methods. POTA was repealed in 2004 due to widespread criticism, alleged civil liberty violations, and low conviction rates.[32] After the repeal, the country saw a series of major terrorist attacks, such as the Delhi serial blasts (2005), the Mumbai local train bombings (2006), 26/11 Mumbai, etc.[33] It is still a matter of contention whether the repeal of POTA played a hand in the happenings of these attacks, but critics do argue the need for a comprehensive terror law (an act like POTA but not exactly like POTA) instead of reliance on ordinary criminal law procedures, contending that the various gaps in India’s security were exposed during these attacks.
Thus, India moved from an exceptional and explicitly “anti-terror” law like POTA, to something a tad more permanent, counter-terror or the UAPA. The POTA is now seen as an act that was openly draconian and also politically vulnerable, vulnerable in the sense of being prone to misuse and misconduct. The UAPA also contains similar coercive power, but within a continuing statutory framework in an evolving society. Although questions regarding personal liberty, due process, and the balance between fundamental rights and national security continue to be raised. One such question that is raised is against Section 15 of the UAPA.
SELECTIVE ENFORCEMENT DISPARITY:
Section 15 of UAPA defines “terrorist act” as intent or likelihood to threaten India’s unity, integrity, security, or sovereignty, or cause public disorder by specified means, including “any other means… to disrupt essential supplies.”[34] The Court expansively interpreted “chakka jams” as falling within this via systemic civic disruption, broadening beyond physical violence to protest orchestration.[35] This aligns with post-2019 amendments made by the current political regime of the Bhartiya Janta Party (BJP),[36] which enhances UAPA’s pre-emptive scope but draws criticism for diluting dissent safeguards, potentially equating mobilisation with terrorism absent overt harm. Renewal of bail is permitted after a protected witness examination or one year from the order, thereby expediting the trial pace.[37]
The BJP-led government’s partisan weaponisation of anti-terror laws against the voices of political dissent in a democratic society prioritises electoral consolidation over constitutional pluralism. By interpreting the non-violent protest coordination “chakka jams” as “terrorist activities” through the vague residuary clause (“any other means…to disrupt essential supplies or services”), the judgement undermines the section’s original intent tied to overt threat to sovereignty, mirroring historical patterns where UAPA amendments facilitated selective targeting of opposition voices amid BJP’s rise in Indian political arena.[38] The essence of constitutionalism, especially the separation of powers and the independence of the judiciary, is compromised.[39] This interference not only erodes public trust in the legal system but also violates the principle of equality before the law,[40] as justice becomes contingent on political affiliations rather than objective legal standards. When political parties in power begin to influence judicial decision-making, they directly undermine the foundational principles of the Indian Constitution.[41]
CONCLUSION:
Both Umar Khalid and Sharjeel Imam have remained in jail for over five years without a trial, without bail, and without even formal charges being filed, raising serious concerns about the right to a speedy trial[42] and the presumption of innocence.[43] Meanwhile, those accused of far more heinous crimes, such as the perpetrators of violence during the Anti-Sikh riots (1984)[44] and Gujarat riots (2002),[45] continue to remain free, sometimes even enjoying political patronage. This glaring disparity highlights not just a failure of the judiciary, but also of the executive and the state machinery, which is supposed to ensure fair and impartial enforcement of the law. The irony is palpable: while the state invokes the rule of law to detain individuals like Umar Khalid and Sharjeel Imam for years without conviction, it appears to turn a blind eye to those responsible for actual mass violence and communal atrocities.
Such selective justice not only weakens the legitimacy of the legal system but also exposes the deep-rooted biases and political influences that have infiltrated the administration of justice. This undermines the very concept of a liberal democracy and has a serious impact on civil liberties, where the law is supposed to be impartial and blind. The government must take necessary measures to ensure that the UAPA is not misused to stifle dissent or silence critics. The UAPA should be used constitutionally while respecting the Individual’s liberty and must not be used as a silencing weapon to target individuals based on their religion, ethnicity, and political beliefs. As students of law and citizens of this country, perhaps our duty is to ensure that justice, not identity, decides one’s fate within the republic.
[1]Unlawful Activities (Prevention) Act, No. 37 of 1967 (India) [hereinafter UAPA].
[2]Umar Khalid v. State (NCT of Delhi), SLP (Crl.) No. 9706 of 2024 (India) (Supreme Court division bench of Justices Aravind Kumar and N.V. Anjaria rejecting the bail petition in January 2026).
[3]Id. (the Court described the accused’s role as “architectural” rather than incidental, placing them at the apex of the alleged conspiracy).
[4]Citizenship (Amendment) Act, No. 47 of 2019 (India) [hereinafter CAA]. The CAA amended the Citizenship Act of 1955 to provide an expedited path to citizenship for non-Muslim refugees from Afghanistan, Bangladesh, and Pakistan, and was widely criticised as discriminatory on religious grounds.
[5]Umar Khalid v. State (NCT of Delhi), SLP (Crl.) No. 9706 of 2024 (India) (the speech reproduced in the prosecution record expressly invoked Gandhian non-violence and constitutional patriotism as the basis of the protest movement).
[6]First Information Report No. 59/2020, Crime Branch, Delhi Police (Feb. 2020) (registering offences under the Indian Penal Code, the Arms Act, and the UAPA in connection with the north-east Delhi riots of February 2020).
[7]Indian Penal Code, No. 45 of 1860 (India) [hereinafter IPC], §§ 147 (rioting), 148 (rioting with deadly weapon), 302 (murder), 307 (attempt to murder).
[8]Arms Act, No. 54 of 1959 (India).
[9]IPC §§ 124A (sedition), 153A (promoting enmity between groups on grounds of religion, race, place of birth, residence, language, etc., and committing acts prejudicial to maintenance of harmony). Section 124A has since been held in abeyance pending constitutional review. See S.G. Vombatkere v. Union of India, (2022) 7 SCC 433 (India).
[10]UAPA §§ 13 (punishment for unlawful activities), 15 (terrorist act), 16 (punishment for terrorist act), 17 (raising funds for terrorist act), 18 (conspiracy for terrorist act).
[11]UAPA § 43D(5) (providing that no person accused of an offence punishable under Chapters IV and VI of the Act shall be released on bail if the court, on a perusal of the case diary or the report under § 173 of the Code of Criminal Procedure, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true).
[12]National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 (India) (holding that under § 43D(5) UAPA the court is not required to undertake a detailed examination of the evidence; a prima facie satisfaction on the totality of the material on record suffices to deny bail).
[13]Umar Khalid v. State (NCT of Delhi), SLP (Crl.) No. 9706 of 2024 (India). See also Union of India v. K.A. Najeeb, (2021) 3 SCC 713 (India) (acknowledging that constitutional courts retain power under Arts. 21 and 32 to grant bail even under UAPA where the trial is unlikely to conclude within a reasonable time).
[14]India Const. art. 21 (“No person shall be deprived of his life or personal liberty except according to procedure established by law.”). The right to personal liberty encompasses the right against indefinite pre-trial detention. See Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81 (India).
[15]Sharjeel Imam v. State (NCT of Delhi), Bail Appl. No. 1596 of 2020 (Delhi H.C.) (first bail application filed shortly after Imam’s arrest in January 2020 on charges arising from his speeches at Aligarh Muslim University and elsewhere).
[16]Id. (the speech at Aligarh Muslim University, delivered in January 2020, called for chakka jams—road and rail blockades—as instruments of non-violent civil disobedience to compel the government to reconsider the CAA).
[17]IPC §§ 120B (criminal conspiracy), 121 (waging or attempting to wage war against the Government of India), 121A (conspiracy to commit offences under § 121).
[18]IPC §§ 124A (sedition), 153A (promoting enmity between groups). See supra note 8.
[19]UAPA §§ 13, 15, 18. See supra note 10.
[20]Bharatiya Nyaya Sanhita, No. 45 of 2023 (India) [hereinafter BNS] (replacing the Indian Penal Code with effect from July 1, 2024; many IPC provisions, including sedition, were either omitted or restructured).
[21]Sharjeel Imam v. State (NCT of Delhi), Bail Appl. No. 3809 of 2023 (Delhi H.C. 2024) (granting bail in respect of speech-related offences under §§ 124A and 153A IPC while Imam continued to remain in custody on separate UAPA charges linked to the February 2020 riots conspiracy).
[22]Unlawful Activities (Prevention) Act, No. 37 of 1967, pmbl. (India) (enacted “to provide for the more effective prevention of certain unlawful activities of individuals and associations, and for matters connected therewith”).
[23]UAPA § 3 (empowering the central government to declare an association “unlawful” by notification in the Official Gazette, subject to confirmation by the Unlawful Activities (Prevention) Tribunal constituted under § 5).
[24]UAPA § 2(1)(o) (defining “unlawful activity” to include any action, whether by act, speech, or through any other means, which is intended, or supports any claim, to bring about the cession or secession of any part of the territory of India).
[25]Unlawful Activities (Prevention) (Amendment) Act, No. 28 of 2019 (India) [hereinafter UAPA Amendment 2019] (inserting individual-terrorist designation power and enhancing investigative powers of the National Investigation Agency).
[26]UAPA § 35 (as substituted by UAPA Amendment 2019) (empowering the central government to designate an individual as a terrorist by notification in the Official Gazette and add the individual’s name to the newly inserted Schedule IV of the Act).
[27]UAPA, sch. IV (inserted by UAPA Amendment 2019; Schedules I-III previously listed only designated terrorist organisations; Schedule IV extends individual designation without any requirement of prior charge or trial).
[28]India Const. art. 21; India Const. art. 19, cl. 1(a) (guaranteeing to all citizens the right to freedom of speech and expression). The individual-designation power under § 35 was challenged before the Supreme Court. See National Union of Journalists (India) v. Union of India, (2024) SCC OnLine SC 1518 (India) (upholding the constitutional validity of the UAPA Amendment 2019).
[29]Terrorist and Disruptive Activities (Prevention) Act, No. 31 of 1987 (India) [hereinafter TADA] (lapsed on May 23, 1995, upon expiry of the sunset clause without parliamentary renewal). TADA was subjected to widespread criticism for enabling prolonged detention, admitting police confessions, and facilitating misuse against political opponents.
[30]Prevention of Terrorism Act, No. 15 of 2002 (India) [hereinafter POTA]. POTA was enacted in the aftermath of the December 2001 attack on the Indian Parliament. See People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 (India) (examining constitutional challenges to POTA, including its detention and confession provisions).
[31]POTA § 32 (rendering confessions made to a police officer of or above the rank of Superintendent of Police admissible in evidence, a provision widely criticised as creating structural incentives for custodial coercion).
[32]Prevention of Terrorism (Repeal) Act, No. 26 of 2004 (India) (repealing POTA with effect from September 21, 2004, following a change in government and sustained civil-society criticism of the Act’s misuse).
[33]The period between the repeal of POTA in 2004 and the present has witnessed several major terrorist attacks on Indian soil. Critics have argued that the absence of specialised anti-terror legislation exposed systemic gaps in India’s counter-terrorism legal architecture. See generally People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 (India).
[34]UAPA § 15(1) (defining “terrorist act” to include any act done “by any other means” to threaten the unity, integrity, security, sovereignty or economic security of India or to strike terror in the people or any section of people or to adversely affect the harmony among different groups or communities).
[35]Umar Khalid v. State (NCT of Delhi), SLP (Crl.) No. 9706 of 2024 (India) (holding that orchestrating chakka jams—systematic road and rail blockades—fell within the residuary clause “by any other means” in § 15(1) UAPA, as such blockades were capable of disrupting essential services and public order on a wide scale).
[36]UAPA Amendment 2019. See supra note 25. The 2019 amendment was the most significant expansion of the UAPA since the 2008 amendments that introduced the NIA and expanded the definition of terrorist acts following the 26/11 Mumbai attacks.
[37]UAPA § 43D(5). See supra note 11. Section 43D(6) additionally provides that a court may, on an application, extend bail after the examination of a protected witness or after one year from the date of the bail order, thereby tethering bail renewal to trial progress.
[38]National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 (India). See supra note 12. The Watali standard has been criticised for creating a near-insurmountable hurdle against bail in UAPA cases, effectively treating pre-trial detention as the norm rather than the exception.
[39]India Const. art. 50 (directing the State to separate the judiciary from the executive in the public services of the State); India Const. art. 13 (rendering void any law inconsistent with Part III fundamental rights). The independence of the judiciary is a basic feature of the Constitution. See Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India).
[40]India Const. art. 14 (“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”). Article 14 embodies the rule of law and prohibits arbitrary state action. See E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 (India).
[41]Union of India v. K.A. Najeeb, (2021) 3 SCC 713 (India) (reaffirming that the constitutional guarantee of personal liberty under Art. 21 is not extinguished by the stringent bail restrictions in § 43D(5) UAPA, and that unjustified trial delay can itself justify release).
[42]Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81 (India) (holding that the right to a speedy trial is a fundamental right implicit in the guarantee of life and personal liberty under Art. 21, and that prolonged pre-trial incarceration without trial constitutes a violation of that right).
[43]Noor Aga v. State of Punjab, (2008) 16 SCC 417 (India) (affirming that the presumption of innocence is a human right and a cardinal principle of criminal jurisprudence; the burden to rebut it rests with the prosecution throughout the proceedings).
[44]Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368 (India) (affirming conviction of a political figure for his role in the 1984 anti-Sikh riots, illustrating the belated engagement with mass communal violence and the decades-long delay in securing criminal accountability for politically connected perpetrators).
[45]Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158 (India) (addressing witness intimidation and the systemic failure of the state machinery to prosecute perpetrators of the 2002 Gujarat riots, and directing retrial to ensure a fair administration of justice).
Atif Alam and Srijan S. Kashyap are first-year students at Chanakya National Law University (CNLU), Patna.
NUALS Law Journal 