National Security As Censorship: Testing India's Unlawful Activities (Prevention) Act Against The Johannesburg Principles On National Security, Freedom Of Expression And Access To Information
Ms. Shamayeeta Dey, LLM (Human Rights), AIALS, Amity University, Noida. Uttar Pradesh.
ABSTRACT
This essay examines the Unlawful Activities (Prevention) Act, 1967 (UAPA), as amended in 2019, against the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, a 1995 framework endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression. It argues that three features of the UAPA: the open-textured definition of “unlawful activity,” the executive's unilateral power to designate individuals as terrorists, and the near-total bar on bail under Section 43D (5) that fail the principle’s tests of legality, necessity, and proportionality. Drawing on the prosecutions of activists, students, and journalists under the Act, including the ongoing case of Umar Khalid, the essay contends that the UAPA operates less as a counter-terrorism statute than as a mechanism of pre-trial punishment for dissent, and that Indian constitutional courts have only partially and inconsistently checked this drift, a fact underscored by the Supreme Court's own May 2026 reference of the applicable bail standard to a larger bench. It concludes with recommendations drawn directly from the Johannesburg framework.
In doing so, the essay situates India's experience within a broader global pattern in which antiterrorism legislation, though facially neutral, is disproportionately deployed against dissenting voices rather than genuine security threats. The unresolved conflict within the Supreme Court itself over the correct bail standard under the Act underscores that the tension between the UAPA and India's free-expression guarantees is not merely academic, but an active and unsettled question of constitutional law.
Keywords: National Security; Freedom of Expression; Unlawful Activities (Prevention) Act; Johannesburg Principles; Pre-Trial Detention; Censorship.
