A law can disappear from the statute book while some of its powers survive under another name. Extraordinary powers have a tendency to migrate. National security cannot become a legal formula that automatically overrides every other constitutional consideration.
By Mohamed Atherulla Shariff
The history of India’s security legislation shows how powers created to defend the State can gradually become instruments for silencing dissent.
There is a recurring pattern in the history of independent India. A grave threat emerges – terrorism, insurgency, separatism, political violence or threats to national security. Parliament responds by giving the State extraordinary powers. The government assures the country that these powers will be used only against dangerous elements. Civil-liberties groups warn of possible abuse.
Then Comes the Next Stage
People who are not convicted of terrorism begin spending years in prison. Political activists are charged under security laws. Journalists are arrested while covering sensitive stories. Protesters are accused of conspiracy. Bail becomes exceptionally difficult. Trials move slowly. And in some cases, after years of incarceration, courts find insufficient evidence to sustain the charges.
The names of the laws change. The underlying problem doesn’t. From the Maintenance of Internal Security Act (MISA) during the Emergency to TADA, POTA, NSA and today’s UAPA, India has repeatedly wrestled with the same constitutional dilemma: How can the State protect national security without turning extraordinary powers into instruments of political and social control? The answer matters because liberty lost before trial can never be completely restored by acquittal.
MISA: the Warning That History Should Never Forget
MISA, enacted in 1971, was originally presented as a weapon against threats to internal security. Its preventive-detention provisions gave the executive enormous powers. Its darkest chapter came during the Emergency of 1975-77. Thousands of political opponents, activists, journalists and others were detained without criminal trials. The suspension of fundamental rights during the Emergency demonstrated just how vulnerable civil liberties could become when executive power was combined with weak institutional restraints.
The Emergency eventually came to an end. MISA was repealed in 1977. But its real legacy did not confine to history books. MISA demonstrated a basic truth about extraordinary legislation: the danger lies not only in who receives the power, but in the power itself. Today’s government may promise restraint. Tomorrow’s government may not. That is why constitutional safeguards cannot depend upon the goodwill of the political party in power.
TADA: Terrorism and the Price of Exceptional Powers
The Terrorist and Disruptive Activities (Prevention) Act, or TADA, emerged in the violent political environment of the 1980s. India undoubtedly faced serious terrorism and insurgency. Punjab was engulfed in militancy, and Jammu and Kashmir faced growing violence. The State required effective instruments to combat terrorism.
But TADA became controversial because its procedures departed significantly from ordinary criminal law. Its provisions relating to detention, bail and evidence made prosecution substantially easier and the defence considerably more difficult. TADA eventually lapsed in 1995 amid widespread criticism. The important lesson was not that terrorism had disappeared. It was that the existence of terrorism does not automatically validate every instrument used to combat it.
A democratic State must fight terrorism effectively, but it must also ensure that the methods used in doing so do not destroy the principles that distinguish a constitutional democracy from a police state.
POTA: Repealed, but Its DNA Survived
The Prevention of Terrorism Act, 2002, was enacted in the aftermath of the Parliament attack and the heightened security environment following September 11. Again, the State had a genuine security concern. Yet POTA became politically controversial because of allegations that it was being applied beyond genuine terrorist activity. The law was repealed in 2004. But there was an important twist.
Many of the extraordinary counter-terror provisions associated with POTA were subsequently incorporated into the UAPA framework through amendments. This created a remarkable continuity. A law can disappear from the statute book while some of its powers survive under another name. The lesson of TADA and POTA should therefore not simply be that individual laws can be repealed. The deeper lesson is that extraordinary powers have a tendency to migrate.
UAPA: the New Centre of the Civil-Liberties Debate
The UAPA began in 1967 as legislation aimed primarily at unlawful activities threatening India’s sovereignty and integrity. Over the years, successive amendments transformed it into India’s principal anti-terror legislation. The 2004 amendment brought substantial anti-terror provisions into UAPA, following POTA’s repeal. Further amendments strengthened it after the Mumbai attacks of 2008. The 2019 amendment gave the government power to designate individuals, as well as organisations, as terrorists.
That evolution has made UAPA one of the most formidable pieces of legislation in India’s criminal-justice system. Its most controversial feature is the difficulty of obtaining bail. Under Section 43D(5), courts face stringent restrictions when considering bail in UAPA cases. The result is that an accused person can remain in prison for years while the prosecution prepares its case. That raises a fundamental constitutional question. If the trial takes longer than the likely sentence, has pre-trial detention ceased to be preventive and effectively become punishment?
The latest NCRB data make the question even more serious. According to data reported from the 2024 Crime in India statistics, 649 UAPA cases were registered in 2024 and 2,145 arrests were made. Between 2014 and 2024, 10,118 cases were registered under UAPA, while the pendency rate of cases before courts reached about 93 per cent in 2024.
But a 93-per-cent pendency rate raises an unavoidable question: Can a justice system claim to protect liberty when people accused under the harshest laws remain trapped in a judicial process for years?
Siddique Kappan: Journalism Becomes a Security Question
The arrest of journalist Siddique Kappan became one of the most prominent examples of the controversy surrounding the use of stringent security legislation. Kappan was arrested in October 2020 while travelling to Hathras in Uttar Pradesh following the alleged gang rape and death of a young Dalit woman. The prosecution alleged that he was connected to a conspiracy involving the Popular Front of India and sought to invoke UAPA provisions among other charges. Kappan spent a prolonged period in custody before securing bail from the Supreme Court in 2022.
Whatever one’s assessment of the allegations, his case illustrated the central problem of extraordinary laws: the allegation itself can produce years of punishment before guilt or innocence is judicially established. For a journalist, incarceration does more than deprive him of physical liberty. It destroys professional opportunities, disrupts family life and prevents him from performing the very function journalism is supposed to perform – reporting events that those in power may prefer to remain unreported.
Umar Khalid: Dissent, Conspiracy and Prolonged Incarceration
The case of former JNU student Umar Khalid is even more politically contentious. Khalid has been accused in the larger conspiracy case relating to the 2020 Delhi riots and charged under UAPA. The constitutional question is how long can an accused remain incarcerated before the State actually proves its case? The Supreme Court has repeatedly stressed that the right to speedy trial is part of Article 21.
In 2026, concerns surrounding prolonged incarceration in UAPA cases again came into focus when the Supreme Court questioned the approach taken in earlier bail proceedings involving Umar Khalid and Sharjeel Imam. Contemporary reporting on the issue noted the Court’s concern that a blanket application of precedent could not replace a careful examination of the individual case. This is crucial.
National security cannot become a legal formula that automatically overrides every other constitutional consideration.
Safoora Zargar: Pregnancy and Imprisonment
The arrest of student activist Safoora Zargar during the COVID-19 lockdown became another emblematic episode. Zargar was charged under UAPA in connection with the Delhi riots conspiracy case. At the time she was pregnant. The Delhi High Court eventually granted her bail in June 2020. The episode produced a wider public debate about the proportionality of invoking the country’s most stringent anti-terror law against an accused whose precise role remained a matter for trial.
If every serious protest or controversial political expression can be brought within the architecture of anti-terror law, the distinction between dissent and terrorism becomes dangerously blurred.
Stan Swamy: When the System Itself Becomes the Punishment
The case of Jesuit priest and tribal-rights activist Father Stan Swamy is perhaps the most painful example. He was arrested in October 2020 in the Bhima-Koregaon case and charged under UAPA. He was 83 and suffering from Parkinson’s disease, repeatedly sought bail. He died in custody in July 2021, before his trial could establish his guilt or innocence. His death raised a profound question that goes beyond the merits of the Bhima-Koregaon prosecution: What does justice mean when an accused person dies before the State proves its case?
The presumption of innocence is one of the foundational principles of criminal justice. But the presumption becomes almost meaningless if the accused spends years in custody and does not live long enough to see the trial concluded.
Sudha Bharadwaj and the Bhima-Koregaon Cases
Lawyer and human-rights activist Sudha Bharadwaj was also arrested under UAPA in the Bhima-Koregaon case. She spent years in prison before the Bombay High Court granted her default bail in 2021. The Bhima-Koregaon investigation has generated a fierce national debate over evidence, digital material, alleged Maoist links and the prosecution’s case.
It is precisely because the allegations are serious that the evidence must be tested rigorously in court. But that process must happen within a reasonable time. A criminal justice system cannot substitute detention for adjudication.
Mohammed Zubair: a Different Law, the Same Question
The case of journalist and fact-checker Mohammed Zubair needs to be treated separately because he was not prosecuted under UAPA in the principal cases that led to his arrest. His experience nevertheless belongs in the broader discussion about the criminalisation of speech.
Zubair was arrested in 2022 in cases involving alleged objectionable social-media posts and was subsequently granted bail by the Supreme Court. His case illustrated how multiple criminal provisions can be deployed over speech and online activity. This is where the larger constitutional question becomes important.
A democracy necessarily contains speech that is unpleasant, provocative, satirical or deeply offensive to some people. The State has the power to prosecute genuine incitement, violence and criminal conduct. But the criminal law should not become a substitute for political disagreement.
The Process Itself Becomes the Punishment
This is perhaps the most important issue in the entire debate. The criminal law is supposed to establish guilt through a trial. But when special laws make bail extremely difficult and trials take years, the process itself can become punitive.
Imagine an accused person who spends five years in prison and is eventually acquitted. Legally, the State may say that justice was done. But what about the five years, the lost career, the broken family, the damaged reputation and the psychological trauma? No acquittal can return those years.
NSA: Preventive Detention Without Conviction
The National Security Act, 1980 permits preventive detention in circumstances where the government considers detention necessary to prevent certain threats to national security or public order. Preventive detention is constitutionally permitted in India, but it is inherently exceptional. The difference between ordinary criminal law and preventive detention is fundamental.
Ordinary criminal law asks: What crime has this person committed? Preventive detention asks: What might this person do? The second question inevitably gives enormous power to executive prediction. That is why judicial scrutiny of preventive detention is indispensable. If preventive detention becomes a routine administrative response to dissent, protest or political disagreement, the exceptional measure becomes normal.
Sedition may have changed its name. The abolition of the colonial sedition provision, Section 124A of the IPC, was widely welcomed. But the new Bharatiya Nyaya Sanhita contains Section 152 dealing with acts endangering the sovereignty, unity and integrity of India.
The danger lies in interpretation. A democracy must draw a sharp line between criticism of the government and hostility towards the nation. The government is temporary; the nation is permanent. A citizen who criticises the government is not necessarily attacking the State. The problem is not unique to one political party. The misuse of extraordinary laws was not the monopoly of one political party.
The real question before India is therefore not whether UAPA, NSA or other stringent laws are necessary. It is whether their extraordinary powers are subject to extraordinary accountability. Extraordinary powers have a habit of becoming ordinary.
The survival of Indian democracy will depend not merely on the State’s ability to defeat those who threaten it from outside, but on its ability to resist the temptation to silence those who challenge it from within. A democracy does not become stronger when nobody dares to dissent. It becomes stronger when dissent is permitted, and the State is confident enough in its own constitutional legitimacy to answer criticism with argument rather than incarceration.
