List of Editorials

Introduction

Recently, the Jammu & Kashmir High Court (HC) in the case of Peerzada Shah Fahad v. Union Territory of Jammu and Kashmir & Anr. (2023) gave bail to journalist Fahad Khan. HC in this case said that the criticism of the government cannot be called a terrorist act under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

What is the Unlawful Activities (Prevention) Act, 1967 (UAPA)?

• The UAPA, is an anti-terrorism law in India which was enacted in 1967.
• The primary purpose of the UAPA is to prevent unlawful activities that pose a threat to the sovereignty and integrity of India.
• Under the UAPA, the government has the power to declare an organization as a “terrorist organization”, individuals as “terrorists” and acts as “terrorist acts”.

What is Terrorist Act Under UAPA?

• The UAPA defines "terrorist act" in Section 15 of the UAPA.
• According to the Act, a terrorist act includes any act which violates several factors such as sovereignty, integrity, security, economic security, or strategic interests of India, or with intent to strike terror or likely to strike terror in the people or any section of the people.
• It also includes acts that are intended to or likely to wage war against the government of India.

What is Section 15 of UAPA?

• Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, -
  • by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
    • death of, or injuries to, any person or persons; or
    • loss of, or damage to, or destruction of, property; or
    • disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
    • damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or
    • damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
  • overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
  • detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.

Why Criticism of Government Cannot Be Considered as Terrorist Act under UAPA?

• The court said if it would consider such act under UAPA then any criticism of the central government can be described as a terrorist act because the honour of India is its incorporeal property.
  • Incorporeal property refers to property that does not have a physical existence but represents legal or intellectual rights.
• Such a proposition would collide head along with the fundamental right to freedom of speech and expression enshrined in Article 19 of the Constitution.
• Article 19 affirms fundamental right to freedom of speech and expression and hence the opinion against government if considered as a terrorist act will hamper the basic structure of the article.

Conclusion

The court's view in this matter helps prevent the UAPA from being wrongly used to silence disagreement. It highlights the need to protect the fundamental values of India's democracy. The decision shows that the judiciary plays an important role in balancing national security and personal freedoms, ensuring that constitutional rights must be upheld for a strong and democratic nation.