Faculty Seminar | Discussion on the Paper “An Exceptionally Special Law: Constraints Over Emergency Powers under the Unlawful Activities (Prevention) Act.”

NLS faculty member Radhika Chitkara will discuss the paper titled “An Exceptionally Special Law: Constraints Over Emergency Powers under the Unlawful Activities (Prevention) Act.” Prof. Arun Thiruvengadam will be the discussant.

Abstract: 

The Supreme Court judgment of 15 October 2022 in the Gadchiroli conspiracy case on the issue of sanction for prosecution, urgently overturning the High Court judgment of the day before, offers a fecund opportunity to review the nature of the Unlawful Activities (Prevention) Act as an ’emergency’ regime. This paper locates itself within the age-old and burgeoning literature on the relationship between emergency executive powers and the Rule of Law. In what manner, and to what extent, is the UAPA bound to the Rule of Law? What is the model of emergency regime at operation under the UAPA? Invoking sanction for prosecution as an example of review of emergency powers, I attempt to answer these questions by focusing on the nature of constraints on executive power designed into the architecture of the law.

This paper does not critically interrogate emergency jurisprudence under constitutional and common law. It also excludes justifications, necessity and functions of emergency laws, as well as the construction of terrorism as their legitimate object. Instead, it seeks to evaluate the UAPA on its own terms, as an emergency law with wide derogations from fundamental rights and established mechanisms of checks and balances.

The paper offers a brief background on the distinct ways in which jurisprudence and State practise characterises the relationship between emergencies and Rule of Law, in order to explain the choice of constraints as a relevant index for compliance with Rule of Law. It then surveys the nature and types of constraints that may be encoded in special emergency regimes, with appropriate examples from the Constitution of India and prior anti-terror laws. Finally, the paper turns to an evaluation of the architectural and political design under the UAPA.

I argue that models of emergency regimes are better understood not as binaries, but as a sliding-scale or spectrum in terms of their relationship with Rule of Law. I demonstrate that the UAPA represents not one, but four distinct emergency regimes, steadily tending towards “legal black holes” in light of existing legal and political constraints. The Supreme Court judgment in the Gadchiroli case is but one illustration of this tendency.